in Europe Programme
This
Guide to advocacy is intended to give an insight into the asylum harmonisation
process and to highlight where, when and how policy is being developed which
will have an incremental impact on the lives of asylum-seeking separated
children in the EU. This Guide is intended to enable people, without a firm
knowledge of the EU policy-making process or asylum harmonisation, to access
the key information quickly and comprehensively.
Each
section briefly outlines the history behind the creation and development of an
instrument, and then outlines the policy proposals presented by the competent
EU institutions. Attention is drawn to the implications of each instrument on
the lives of separated children, and where advocacy should be targeted to
effectively argue for full realisation of children’s rights within the
harmonisation process.
Each
section is intended to stand-alone, however, the instruments are all
inter-dependent so that references have been made to the links between
instruments. A final glossary has
information about the EU policy-making process and definitions; all glossary
terms and cross-references are highlighted in bold type.
About the Separated Children in Europe
Programme (SCEP)
The Separated Children in Europe Programme
is a joint initiative of and partnership between some members of the
International Save the Children Alliance in Europe and the United Nations High
Commissioner for Refugees (UNHCR). The Programme partnership is based on the
complementary mandates and areas of expertise of the two organisations:
UNHCR’s responsibility is to ensure protection of refugee children and
those seeking asylum; Save the Children is concerned to see the full
realisation of the rights of all children.
The program seeks to improve the situation
of separated children through research, policy analysis and advocacy at the
national and regional levels. It has set up a network of non-governmental
organisations (NGOs) working with children, asylum-seekers and refugees in
twenty-eight Western European countries (the fifteen Member States of the
European Union, Norway, Switzerland, three Baltic States, Poland, Hungary,
Czech Republic, Slovakia, Bulgaria, Romania, Slovenia and Croatia).
Funding for the Programme has been
provided by the Norwegian Government; the Odysseus Programme of the European
Union; UNHCR; Save the Children Norway; Save the Children Sweden; and Save the
Children UK.
About the Authors
We would like to warmly thank both interns who
substantially contributed in drafting and updating the lobbying guide : Judith
Kirton-Darling in September 2000 and Mafalda Marinho Leal in September 2001.
Contents
CONTENTS
Introduction to the Third
Pillar – Justice and Home
Affairs…………………………….3
Communication from the Commission,
Towards a common asylum procedure
and a uniform status, valid throughout the Union, for
persons granted asylum; 22 November 2000………...7
Harmonisation Instruments
Council
Decision establishing a European Refugee Fund; 28 September
2000………………………………..9
Council
Regulation concerning the establishment of ‘Eurodac’ for the
comparison
of
fingerprints for the effective application of the Dublin Convention; 11
December 2000……………………12
Council
Directive on Minimum standards for giving temporary protection in the even
of a mass
influx of displaced persons and on promoting a balance of efforts between
Member
States in
receiving such persons and bearing the consequences thereof; 20 July
2001……………………..14
Proposal
for a Council Directive on minimum standards on procedures in Member
States for
granting and withdrawing refugee status; 20 September
2000………………………………………18
Proposal for
a Council Directive laying down minimum standards on the reception of
applicants
for asylum in Member States; 3 April
2001…………………………………………………………….22
Proposal for
a Council regulation establishing the criteria and mechanisms for determining
the Member
State responsible for examining an asylum application lodged in one of the
Member States
by a third-country national (Dublin II); 26 July
2001…………………………………………….26
Proposal
for a Council Directive laying down minimum standards for the qualification
and status of
third country nationals and stateless persons as refugees, in accordance with
the 1951
Convention related to the status of refugees and the 1967 protocol, or as
persons
who otherwise
need international protection;12 September
2001………………………………………………..30
Proposal
for a Council Directive on the Right to Family Reunification; 10 October
2000……………………...33
Readmission
Agreements……………………………………………………………………………………………..37
Glossary…………………………………………………………………………………………..41
Appendices……………………………………………………………………………………….50
Appendix
I; Extract
of the Commission’s Scoreboard to review progress on the creation
of an area
of “Freedom, security and Justice” in the European union (Com
(2001)
278 final,
23 May –
pp.5-12……….…………………………………………………………………50
Appendix II; Council Resolution of 26 June 1997 on Unaccompanied Minors who are
Nationals of Third Countries (97/C
221/03)……………………………………………………………………..……….51
Appendix III;
Recommendations from Sandy
Ruxton “Separated Children Seeking Asylum
in Europe: A
Programme of Action…………………………………………………………..……...57
References…………………………………………………………………………………………………………..……61
Introduction
· Introduction to the Third
Pillar - Justice & Home Affairs
From Geneva 1951 to Amsterdam 1999
When the Geneva Convention on the Status
of Refugees was signed in 1951 Europe was reeling from the tragedy of the
Second World War, its causes and consequences. A common instrument was created
within the United Nations - the Geneva Convention - which would ensure a
certain minimum standard of treatment to persons fleeing persecution on the
grounds of race, ethnicity, politics or membership of a certain social group.
The Convention forms the basis of all European asylum systems to this day. It
offers protection from ‘refoulement’, i.e., being returned to a
situation of persecution, and provides for a definition as to who qualifies as
a refugee, and hence is to benefit from its provisions.
From Rome to Amsterdam
The drafters of the Treaty of Rome in 1957, which established
the European Economic Community (EEC), envisaged that the Member States (then
only six - France, Germany, Italy, Belgium, the Netherlands and Luxembourg)
would become an area of free movement. This would mean freedom of movement for
goods, capital, services and workers. The Treaty was supposed to foster an area
of peace and freedom, in a region that had experienced war and repression. The
EEC was primarily economic and had no competence for issues of asylum and
immigration, including the social policies of refugee integration and
protection.
The Single European Act (SEA), negotiated in 1985 and
finally ratified in 1987, revitalised the EC and established the Single Market.
The SEA prescribed a series of measures necessary to create an area of true
freedom of movement for goods, capital, services and, ultimately, people and
labour by the end of 1992. This has not been fully realised to date, but can be
explained in part by the reluctance of some Member States to relinquish
national sovereignty over immigration policy and border controls. As a consequence
of the lack of united agreement, nine Member States (the original six of the
EEC, Spain, Portugal and Greece) decided to continue integrating regardless of
the ‘sceptical members’ (Britain, Ireland and Denmark). This was
done outside the competence of the EC and was a purely intergovernmental
venture.
Twelve of the Member States (including
new members Austria, Sweden and Finland) signed and ratified the Schengen
(Implementation) Agreement. This instrument removed border controls between the states and provides
for a number of measures to realise a common area of free movement. Britain and
Ireland signed an agreement that they could ‘opt-in’ when
co-operation was appropriate. For Denmark the Schengen agreement entered into
force only in 2001, although it will not participate in provisions that have
become a matter of supra-national cooperation under the First Pillar since the
Amsterdam Treaty(see infra).This results from the reservation the Danish
introduced to the Maastricht Treaty that allows them to decide, case by case,
if they will adopt a certain measure or not. If so, it will always remain an
intergovernmental action. At present a series of draft Directives and
Introduction
Regulations attempt to remove the
restrictions placed upon free movement for third country nationals legally
residing within the EU.
The Maastricht Treaty creating the
European Union
(TEU, 1993) created a ‘three pillar’ system of governance, and this
remains the structure of the EU today. The first pillar covers the European
Community policies - in general, these are policies previously within the remit
of the EEC/EC. They are governed by selection of decision-making systems
involving all the EU institutions. The second pillar is entitled ‘Common
Foreign and Security Policy’ - basically this covers intergovernmental
co-operation in security and defence policy.
The Third Pillar covers intergovernmental
co-operation in the field of ‘Justice and Home Affairs’, including
immigration and asylum policies. The purpose of establishing this pillar was to
bring all the measures in justice and home affairs within a coherent framework
of _ inter-governmental _ policy development and decision making, and to
develop a number of instruments (Joint positions, Joint Actions, Resolutions)
to legislate on relevant measures.
The Amsterdam Treaty
In 1997, Member States signed the Treaty amending the
TEU, in Amsterdam. The Treaty changes were fully ratified by May 1999. The Amsterdam Treaty had major implications for the field
of asylum and immigration, as under Title IV (Articles 61-69, TEU) the Member
States agreed to harmonise their national asylum systems into a common EU
policy. This harmonisation would still be handled at an intergovernmental level
before the common asylum policy would be moved from the third pillar to the
first pillar, and be affected by the co-decision procedure and qualitative majority voting[1]. The Amsterdam Treaty specifically gave the Member States
five years to agree the necessary basic policies in order to integrate their
national asylum systems into the common policy. During this transition period
the other legislative institutions have the duty to monitor the progress of
harmonisation. By the time the common instruments would be in place, the Union
would have created an “area of freedom, security and justice”(Title
IV of the Amsterdam Treaty).
As a consequence of Amsterdam, there have
been a number of important changes in the way policy is formed and decided at
EU level. Firstly, the Commission’s right to initiate policy has been
fully reflected the field of asylum and immigration policies and since been
used to fully extent at least in the asylum area. There is still a shared right
of the Member States, but they decided that all the harmonisation measures
should originate with the Commission. The Commission has been keen to enact
this extension; therefore the first of the harmonisation draft directives was
delivered to the Council of Ministers in December 1999. This addressed the
right to family reunification (see Chapter X). Secondly, the ultimate move to the first
pillar will mean the Council shares decision-making with the other institutions
of the EU - the European Parliament, Economic and Social Committee and
Committee of the Regions.
Introduction
The Amsterdam Treaty has accelerated
policy-making in the field of asylum and immigration because the Member States
have been given a clear timetable for agreement. The first step towards gaining
EU consensus on a strategy was proposed by the Austrian Presidency (July-December
1998), within the Vienna Action Plan. This plan focused upon common
approaches towards countries of origin, developing common asylum measures based
on international protection standards, and ways to combat illegal immigration.
This document started the inter-institutional debate on how the Amsterdam
treaty’s provisions could be implemented to form a cohesive common
system, and set a timetable for decision-making. The necessary foundations for
a common system were proposed for a two-year period and the supplementary
elements were given a five-year period.
In December 1998, the General Affairs
Council established a High Level Working Group on Asylum and Migration. The HLWG was given the
mandate to develop a common cross-policy/pillar strategy on relationships with
the countries of origin. The group focused on six countries[2],
and developed individual strategies for each one.
Tampere Summit October 1999
On the 15-16 October 1999, the European
Council met in Tampere, Finland, the Heads of Government focussing on the
entire field of Justice and Home Affairs (Third Pillar). Its intention was to
reaffirm the goal of creating an “area of justice, freedom and
security” (Title IV of the Amsterdam Treaty. The language of the Tampere
Conclusions is positive since Member States reaffirmed “the importance
the Union and Member States attach to the absolute respect of the right to seek
asylum”[3], the need to
develop a common asylum system based on the “full and inclusive
application” of the Geneva Convention and the full respect for guarantees
to access EU territory by those in need of protection.
UNHCR and many NGOs welcomed the Tampere
Summit Conclusions, as the Member States reaffirmed their commitment to the
Geneva Convention, the right to asylum and the principle of non-refoulement. The Member States also
called on the Commission to prepare a policy paper on a common asylum
procedure and
a uniform ‘refugee’ status to be submitted within a year of the
Summit. They also stressed the necessity of completing the application of the EURODAC system and agreeing to common
measures for Temporary and Subsidiary Forms of Protection based on solidarity between
the Member States in financial and distribution terms. Thus a new pace to the
harmonisation process was created.
The Tampere Summit welcomed the
HLWG’s action plans and the group was given a further period of time to
implement its recommendations[4].
This was supported by a reaffirmation of the necessity of building strong
partnerships with countries of origin based upon basic European human rights
and democracy standards[5].
The intention was to manage international migratory flows in a more coherent
manner. The
Introduction
subsequent meeting of the Justice and
Home Affairs Council (JHA Council) in December 1999 agreed on a basic readmission clause that will be
integrated into all EU common agreements with third countries. The first
agreement this affected was the former-Lomé Convention[6]
with the African-Caribbean-Pacific former-colonies (ACP states).
The Scoreboard (March 2000)
As a result of the momentum built by the
Tampere Summit, in March 2000 the Commission published its proposed timetable
of legislation in the area of Justice and Home Affairs[7],
to be updated twice a year (last update May 2001). This offers NGOs and the
general public a means to assess the development of, inter alia, a harmonised
Asylum policy.
A number of principles form the basis of
the Scoreboard’s section dedicated to a common asylum system:
· The Geneva Convention will
form the basis of the Commission’s proposals;
· The principle of non-refoulement will be maintained and
ensured;
· The Dublin Convention and the
principle of limited secondary movements will be included.
This approach will inevitably have
consequences for separated children, as they have needs which do not
automatically fit comfortably with these principles. For instance, Dublin
proceedings could separate children from members of their family who are not
recognised within the strict sense of ‘family’ required for family
reunification across the EU. Equally, both UNHCR and Save the Children stress
that children experience different forms of human rights violations and threat,
which may not be recognised if a narrow definition of ‘refugee’ is
established, albeit based on the Geneva Convention. Violations of
child-specific human rights, for instance, child labour, female genital
mutilation or child soldiers, may under certain circumstances constitute a
‘well-founded fear of persecution’. This should be acknowledged by
EU Member States.
In view of the completion of the accession process at
least for some candidate countries to the EU in a near future, Member States
have adopted at the Nice Summit in December 2000, a Treaty which anticipates
some of the necessary institutional reforms. Concerning asylum, the Nice Treaty
prescribes that unanimity voting will be required until the whole set of asylum
legislative instruments (as defined in Amsterdam) is adopted, lifting thereby
the deadline of 2004 for eventually changing the voting system to qualified
majority (Amsterdam treaty).
Towards a common asylum procedure and a uniform status
Communication from
the Commission, Towards a common asylum procedure and a uniform status, valid
throughout the Union, for persons granted asylum
Following the new powers given by the
Amsterdam Treaty, the Commission could present initiatives on the area of
asylum and immigration, which no longer fall under the exclusive legislative
competence of the Member States. The European Council held in Tampere in
October 1999 established the aim of creating by the end of 2004, an area of
“Freedom, Security and Justice” within the European Union.
According to the Conclusions of the
Summit, the long-term objective of an asylum policy in the EU is the creation
of a common asylum system, which fully and inclusively respects the Geneva
Convention of 1951. Heads of State recommended that the implementation of such
a system should be made in two phases. The first phase would be the
establishment of minimum standards on procedures, on reception conditions and
on the qualification and status of refugees and people in need of international
protection. The second phase would be the creation of a common asylum procedure
and a uniform status. The Portuguese Presidency started the discussion in June
2000 when launching a governmental conference entitled “Towards a Common
Asylum System”.
In order to start the debate the
Commission presented a Communication on these issues in November 2000[8].
Rather than pre-establishing a solution, the Communication explores a variety
of possibilities for the creation of a common procedure and a common status.
Hence, it highlights that a balance must be found between the need for
accelerating the current procedures and at the same time, protect the rights of
the applicants. The Communication also explores all the aspects related to the
creation of a common asylum system, from the re-examination of the Dublin
Convention; the implementation of the Eurodac system; the readmission
agreements with countries of origin to the need of approaching separately,
although interrelated, the immigration policies.
UNHCR welcomed the Communication in general and especially
its approach to a single procedure system, which will allow examining both
applications for refugee status, and for subsidiary/complementary forms of
protection status.
The
European Parliament appointed Mr Robert Evans (UK) as Rapporteur for the
Communication. His report was adopted on the 12 of September 2001 and is to be
voted in the Strasbourg plenary session of October 2001.
Towards
a common asylum procedure and a uniform status
A
wide number of recommendations were put forward:
·
appeals procedures and timeframes
for asylum determinations should be harmonised;
·
the use of safe third country and
safe country of origin concepts, of accelerated procedures and procedures for
manifestly unfounded applications should be limited to where justified and
include legally binding guarantees;
·
common repatriation policy for
asylum seekers whose applications had been rejected;
·
establishment by Member States of
voluntary return and resettlement programs;
·
UNHCR should be granted more
support for the protection and assistance of refugees in regions affected by
conflict (especially financial contributions from the Member States).
The funding of projects and activities
aiming to introduce and change policies and structures is essential to improve
the situation of separated children throughout the EU. Financial support from
the Member States and EU institutions show willingness and commitment to assist
asylum seekers and refugees.
A common European fund for working with
refugees and asylum-seekers means that funds are available to, inter alia,
strengthen non-governmental organisations (NGOs) in terms of capacity building,
and enable networks to develop between NGOs and governmental structures. This
would facilitate joint ventures to be undertaken, such as research, seminars,
training programmes and exchanges of good practices.
With increased co-operation between the
Member States in asylum matters, it was agreed in 1997 that EU budget lines should be established to fund
projects and programmes across the EU. Therefore the Council created through a
Joint Action three new budget headings, which covered improvement of reception
facilities, integration and voluntary returns. The budget lines covered
recognised refugees, displaced people granted temporary protection and asylum
seekers. The return programmes included ex-asylum seekers whose applications
had failed and volunteered to return (without force or coercion).
These budget lines were treated as
independent policies although they were covering the same target group in the
majority of cases. The budget allocation for 1998 was 13 million Euros for the
voluntary return programmes and 3.75 million Euros for improving reception
facilities. A separate line was operated for the integration of refugees,
covering both project and network activities.
By
April 1999, the Member States recognised the need for more coherence and
efficiency, the Council combined the budget lines for improving reception
facilities (B5-8030) and facilitating voluntary returns (B7-6008), into one
(B5-803). In reaction to the pressures on EU asylum systems resulting from the
Kosovo crisis, the funds were designed to specifically support the Humanitarian
Evacuation Programme. Consequently, in 1999 the funds were used primarily for
emergency measures and not the stated aim of creating structural projects. The
1999 budget for B5-803 was 15 million Euros; less than the budget for the same
policies in 1998, regardless of the Kosovo crisis.
During December 1999, the last Joint
Action expired and on 14 December 1999 the Commission published a draft
‘Proposal for a Council Decision creating a European
Refugee Fund’[9](ERF).
The proposal offered the legal basis necessary to establish the ERF as a
long-term and coherent approach to EU funding of projects. The projects on
reception facilities and voluntary returns were combined with the budget line
on integration and are now administrated by the Directorate-General of Justice
and Home Affairs.
In September 2000, the Council adopted the
Decision establishing
a European Refugee Fund[10].
The Fund
started operating from January 2000 for five years, covering the entire period
of Asylum Harmonisation until the common policy is fully adopted under the First
Pillar. This
ensures that regardless of disruption in the policy-making, funding would
continue and be secure. UNHCR and NGOs have welcomed this approach.
All the fifteen Member States are applying
this decision since the United Kingdom and Ireland have also
‘opted-in’.
According to the Decision, the ERF:
· covers refugees, asylum-seekers
and displaced persons granted temporary protection;
· finances projects on reception,
integration and voluntary return;
· finances emergency measures to
help Member States in the case of a mass influx of refugees or displaced
persons;
· allows that up to 5% of the
Fund's available resources to be used for intra-Community projects to exchange
information, practices and studies or for the assessment of the implementation
of measures and technical assistance;
· is based on a model of
decentralised management, thus the Member States can control the distribution
of national allocations from the Fund;
· distribution of resources
between Member States is proportional to the number of asylum seekers they
receive and the number of refugees they assist on their territory;
· provides a financial commitment
of 216 million Euros for 2000-2004 to be divided between the three areas. 26
million Euros were available for 2000. For the subsequent years each Member
State shall receive the following fixed amount fund's annual allocation:
In 2001: EUR 400000
In 2003: EUR 200000
In 2004: EUR 100000
The
remainder of the available resources will be distributed between the Member
States according to specific criteria as set out in the Decision.
Member States’ reports on the projects of the ERF for 2000 can be found
in the JHA website: www.europa.eu.int/comm/justice_home/jai/prog_en.htm.
Several projects being funded by ERF in 2001 target separated children.
European Refugee Fund
The ERF also has its own page
on the web, available at http://european-refugee-fund.org
· The fund should support
specific projects and services targeting separated children.
· As there is currently a lack of
comprehensive return programmes in line with accepted international standards,
Members States should be particularly encouraged to finance return programmes
for separated children, whether before an asylum application is lodged or as a
result of a failed application.
· Lobbying with the Member States
is necessary to include a specific focus on separated children in national
project priorities.
Eurodac
Council Regulation concerning the establishment
of ‘Eurodac’ for the comparison of fingerprints for the effective
application of the Dublin Convention
The creation of a common database of
fingerprint information about asylum seekers is proposed by the EU for
identification purposes, as a means of facilitating the decisions about which
state is responsible for an asylum claim (see Dublin Convention).
After the signing of the Dublin Convention
in 1990, the Member States had to assess ways that the Convention could be
implemented and supported to create an instrument as efficient as possible. One
particular concern was how to effectively identify people abusing the system.
It was decided that the use of identity cards and papers alone would cause
bureaucratic problems, as they could be manipulated or destroyed quite easily.
In 1991, a feasibility study was undertaken to assess the possibility of an
EC-wide fingerprint database.
In March 1996, the Member States began
negotiating a Convention on the proposed fingerprinting scheme, known as Eurodac. The
intention was that fingerprints of all asylum-seekers would be fed into a
central database, where Member States could check new asylum-seekers’
identities on request. The European Parliament approved this measure. The
Convention was enhanced by a draft Protocol in 1998, which extended the mandate
of the Convention to people found illegally on EU territory. The Member States
would be able to check if such individuals had applied for asylum before,
regardless of whether they lodged an application when found. The European
Parliament rejected this measure, but the Member States ignored its report.
The Member States never formally signed
either agreement, as it was decided at the end of December 1998 (for the
Convention) and March 1999 (for the Protocol) that these measures should be
‘frozen’ in consideration of the ratification of the Amsterdam
Treaty TEU II.
Upon ratification of the TEU II, the Commission was asked to prepare a common
instrument under Title IV (JHA), incorporating the substance of the former
intergovernmental agreements.
At the end of May 1999, less
than a month after the ratification of TEU II, the Commission produced a draft Council
Regulation concerning the establishment of ‘Eurodac’ for the
comparison of the fingerprints of applicants for asylum and certain other
aliens[11]. The Commission decided that
the appropriate legislative tool would be a regulation to ensure that personal
data could be collected and stored within a
Eurodac
strict set of rules, which
would be applied uniformly and unconditionally by the Member States, otherwise
the system would not be universally effective.
After the European Parliament’s
opinion and subsequent discussions in the JHA Council – where an agreement
could not be reached - the Commission had to redraft the proposal. Therefore,
the amended Proposal for a Council Regulation concerning the establishment
of “Eurodac” was completed in March 2000 and adopted by the Council later in
December 2000[12].
The Eurodac system will be applicable to all EU Member
States since the United Kingdom and Ireland ‘opted-in’ and Denmark
also agreed to this measure. As a result of co-operation agreements between the
EU and Norway and Iceland, they are becoming part of the Eurodac system too.
The purpose of Eurodac is to assist in the
determination of the Member State responsible for examining an asylum
application and thus, data assembly shall only be used for ‘Dublin
Procedures’.
The
system consists of the collection of the fingerprints of all asylum-seekers and
certain categories of illegal migrants over the age of 14. The data collected
will then be stored in a central unit under the responsibility of the
Commission. Data on asylum-seekers can be stored for 10 years before being
‘erased’ although earlier ‘erasure’ is possible if the
individual is granted citizenship of a Member State. For persons found
illegally crossing EU borders, their data shall remain in the central unit for
a maximum of 2 years and for those found illegally within the EU, data shall be
‘erased’ after the completion of a Eurodac investigation.
Data on persons who are granted
refugee status shall be blocked and after five years Eurodac started
operations, either be stored or erased from the central unit, under the
conditions set out in the Directive. It is expressly prohibited to
‘leak’ data collected to third countries, with the exception of
Iceland and Norway, in the light of their co-operation with the Eurodac system.
The method of fingerprint collection has been left to national practice. Hence,
the Member States have to ensure that the modus operandi respects human rights
instruments such as, the European Convention on Human Rights (ECHR) and the
United Nations Convention on the Rights of the Child (CRC).
Related Action
· UNHCR does not disagree with a
system of fingerprinting for identification purposes, as long as safeguards are
established to ensure information is not abused and separated children are not
endangered or mistreated. A continuous monitoring must be carried out of the
application of the Regulation.
· At the time when the instrument
was being developed, Save the Children expressed concern about fingerprinting
children as young as 14.
Temporary Protection
Minimum standards for giving
temporary protection in the event of a mass influx of displaced persons and on
promoting a balance of efforts between Member States in receiving such persons
and bearing the consequences thereof
Temporary
Protection is considered a short-term solution to situations of mass influx
into the EU. It is intended to alleviate the pressure of numbers of applicants
on the Member States’ asylum systems, whilst maintaining and supporting
individual needs for protection. Strong elements are solidarity between the receiving states and the setting of mechanisms
of burden sharing. By definition, it is an
emergency measure of an exceptional nature that lasts for a specific length of
time, and must not prejudice recognition of refugee status under the 1951 Geneva
Convention.
Harmonisation of temporary protection aims
to create a common regime as regards establishment, implementation,
termination, duration as well as standards of treatment and other State
obligations, rules on access to asylum procedures, burden-sharing and return
conditions across the EU.
Temporary Protection existed as a form of
protection in several Member States. In general, the need for a short-term form
of protection resulted from the large numbers of ex-Yugoslavian nationals
arriving into the EU since the early 1990s, in particular Bosnians between
1992-5 and Kosovars in 1999. These forms of temporary protection were inspired
by a need to deliver protection quickly to a clearly identified group of
people, whilst maintaining the national asylum systems to assist asylum-seekers
from elsewhere.
Some key differences existed between the
national temporary protection systems[13]:
· The most significant difference
is the rights and provisions of temporary protection systems.
· Member States have set
different time limits on the provision of temporary protection. Duration ranged
from 6 months to 5 years.
· Some Member States, after
having suspended asylum procedures during the period of temporary protection,
guarantee individual status determination, while others made asylum application
and temporary protection incompatible, thus forcing people to opt for one or
the other.
In 1993, the Danish Presidency introduced
a Resolution on certain common guidelines as regards the admission of particularly
vulnerable persons from the former Yugoslavia. The Resolution dealt specifically with
persons from former Yugoslavia and covered all aspects of temporary protection,
including reception facilities.
Temporary Protection
In September 1995, the JHA Council adopted a Resolution on burden sharing with
regard to the admission and residence of displaced persons on a temporary basis [14].
The Resolution reiterated the categories of people included in the June 1993
Resolution to whom temporary protection would be accorded[15]
within the Member States; its new element was how the balance of resources
would be managed, in financial and physical terms. The Resolution was
complimented by a Council Decision on alert and emergency procedure for
burden sharing with regard to the admission and residence of displaced persons
on a temporary basis (March 1996)[16].
This package of measures was a direct result of the war in Bosnia-Herzegovina;
however, it was never implemented.
In 1997, the Commission, under its right to
co-initiate with the Member States, presented a proposal for a Council Joint
Action
concerning temporary protection of displaced persons. The proposal outlined a
European co-ordination mechanism for the establishment, review and termination
of temporary protection, as well as common standards of treatment for
beneficiaries of temporary protection, including family reunification and
social, economic and cultural rights, and a burden-sharing element. In 1998,
the Commission introduced a revised proposal, which placed the burden-sharing
component in a parallel Joint Action. Both proposals were welcomed by the
European Parliament. However, the JHA Council remained divided over a number of
issues, including the issue of solidarity and burden sharing. During the German
Presidency (January to June 1999), a discussion paper was presented suggesting
ways to resolve the issue.
As a consequence of the ratification of Amsterdam
(TEU II) in
May 1999, both proposals lapsed and the Commission was called on to draft an
instrument on minimum standards for giving temporary protection and promoting a
balance of effort between Member States (Article 63 (2b)). The draft proposal
was presented in May 2000[17]
and a political agreement was finally reached on the Justice and Home Affairs
Council on the 28 and 29 May 2001, after a long period of tough discussions.
The Directive was adopted and published on 20 July. It entered into force on 7
August 2001.[18] The
deadline for Member States to comply with the Directive is the 31 December
2002, with the exception of Denmark and Ireland.
The Directive contains a complete
‘package’ for temporary protection, including reception and
procedural aspects and a burden-sharing mechanism that can be granted for a
maximum period of two years. Council ruling by qualified majority, as a result
of a Commission proposal will activate a temporary protection regime.
Temporary Protection
The same procedure will be applied if the
Council agrees in extending the regime for a further one year under the
condition that the grounds for its establishment have not changed. Under
Art.3.3, UNHCR is to be regularly consulted on “the establishment,
implementation and termination of temporary protection”.
Temporary Protection is an
exceptional regime and therefore can never affect the recognition of refugee
status under the Geneva Convention. This means that an application for asylum
can be lodged at any time and the Directive sets time limits to its
examination. Furthermore, Member States may decide if the temporary protection
status can “be enjoyed concurrently with the status of asylum seeker
while applications are under consideration” (Art.19).
As regards standards of
treatment, general responsibilities of Member States include:
· provision of housing, welfare
or assistance, medical care and education;
· the right to work, under
specific conditions to be accorded by each Member State
· family reunification –
allowed until two months before the end of the maximum period of two years of
the temporary protection regime. Family members considered in the draft
Directive are spouses or ‘stable’ unmarried couples and their
children or other members dependent on the applicant, for economic or
psychological reasons, or otherwise in need of specialised medical treatment.
The emergency provisions set out in the ERF can be allocated to Member States
to provide for adequate burden sharing.
As with all population movements it is
recognised that in situations of mass displacement, children may become
separated from their families or guardians. Even with the most organised system
of evacuation separations are likely to occur.
The Directive contains a number
of provisions according to international standards and appropriate protection of
separated children. It provides for the temporary appointment of a guardian
(Art.16.1). During the period of temporary protection separated children should
live with either adult relatives, foster families or in reception centres with
specific provisions for separated children (Art.16.2) and the views of the
child shall be taken into consideration when deciding on appropriate placement
(Art.16). Family reunion must be in the best interests of the child; if family
members, or other primary caregivers, cannot be traced, the Directive calls on
Member States to allow the minor to be placed with the person(s) who looked
after the child whilst fleeing (Art.16.3).
It is also the responsibility
of the host Member State to ensure that the separated child’s medical
needs are met, including the right to access medical or other assistance for
those who have undergone torture, rape or serious forms of psychological,
physical or sexual violence (Art.13.4).
Temporary Protection
Moreover, all children shall
have access to education, including separated children, under the same
conditions as nationals of the host state (Art. 14.1).
Lobbying
Points
· Member States should ensure
that separated children are informed fully about their situation and the rights
and opportunities available to them. For example, the right to seek asylum, the
right to education, healthcare and appropriate and adequate psychosocial
support.
· The ‘phasing out’
of a separated child’s protection should be addressed: before a child is
returned provisions and safeguards should be established to ensure the
child’s safety and that the child will have a caregiver upon return. The
‘best interests of the child’ should be paramount.
· Until the end of 2004, the
Commission may propose amendments to the Directive (Article 31). Any action
carried out to improve its contents would be most useful.
Asylum procedures
Minimum
standards on procedures in Member States for granting and withdrawing refugee
status
A common instrument on asylum procedures is essential to
ensure that regardless of where an asylum claim is lodged the applicant will
have a fair, humane and uniform chance of recognition as a
‘refugee’.
The first intergovernmental agreements on
procedural matters were the so-called London Resolutions of 1992. These laid out
criteria for the screening-out of asylum-seekers whose claims were considered
‘abusive’ or ‘unfounded’ or if they were coming from a
‘safe third-country’ or a ‘safe country of origin’.
In general, between the Maastricht and Amsterdam treaties (TEU I and II),
intergovernmental co-operation under the Third pillar focused on co-operation in the
removal of border controls and creating infrastructures capable of supporting
that end. Asylum procedures were considered a strictly national competence.
Therefore, in 1994, a Communication on Immigration and Asylum policies (see section on
Communication on Asylum), issued by the Commission suggested that common procedures should
be codified in a legally binding instrument[20].
In 1995, as a result of Third pillar
co-operation and the Communication, the Member States drafted a
‘soft-law’ Resolution on minimum guarantees for asylum
procedures[21], which outlined the core
individual rights and state obligations common to all Member States. In
accordance with its ‘soft-law’ status, the Member States were only
obliged to take the principles laid out into account in the event of
legislative changes.
In relation to separated children, the
Member States adopted a clause stating:
“Provisions must be made for
unaccompanied minors seeking asylum to be represented by a specifically
appointed adult or institution if they do not have capacity under national law.
During the interview, adults or representatives of that institution may
accompany unaccompanied minors. Those persons are to protect the child’s
interests.”
The 1997 Council Resolution on Unaccompanied Minors who
are Nationals of Third Countries[22], was the only attempt by the
Member States to specify the appropriate procedures for minors seeking asylum.
The Member States laid out minimum standards of procedures once an
unaccompanied minor had applied for asylum and assured access to the territory
for asylum-seeking unaccompanied
Asylum procedures
minor (in line with the provisions for
adults in the 1995 Resolution). Furthermore, the
Resolution laid out that unaccompanied
minors should be ‘represented’ adequately; the manner in which this
was to be achieved was left to national discretion. Although, it also
prescribed that in Member States where appointments of guardians to
unaccompanied minors were standard procedure, those guardians should be
responsible for the child’s legal, social, medical, psychological and
other needs (Article 3(5)). Importantly, Member States were allowed to go
beyond the limits of the Resolution.
As far as officials dealing with
unaccompanied minors are concerned, the Resolution stated that interviews
should be conducted by officials with an adequate level of experience of
interviewing unaccompanied minors; therefore Member States were encouraged to
develop further training in this area.
The 1997 Resolution was another piece of
‘soft law’ inadequately implemented by the Member States[23].
SCEP research in 2000 highlights the disparities in treatment and procedure
between the Member States, and the general inadequacies of policy towards
separated children[24].
During the drafting of the Amsterdam Treaty(TEU II), the Member States
acknowledged that common asylum criteria and procedures must form the basis of
a harmonised system.
The Vienna Action Plan, of December 1998, gave the
Commission two years to draft an instrument on common procedures. The Tampere
Summit amended
this timetable and called on the Commission to present their draft instrument
by the end of the year 2000.
In March 1999, the Commission
produced a working document entitled “Towards Common Standards on Asylum
Procedures”[25]
aiming to open the debate within the institutions and national legislatures.
Its substance was focused on creating a quicker, simpler and more efficient
asylum system, while maintaining safeguards to ensure that individual
applicants are identified correctly.
Finally, in September 2000 the Commission
published a draft Directive on minimum standards on procedures for granting and
withdrawing refugee status[26]
The proposal does not create a common
procedure but merely sets the rules to align Member States’ legislation
by the same standards.
Asylum procedures
Council
of Ministers
The proposal is currently being discussed.
Mr Ingo Schmitt (Germany) was appointed
Rapporteur by the Committee for Citizens’ Rights and Justice and Home
Affairs. The report was adopted on the 28 of August but, contrary to what
happened with his previous report on the Commission Working paper of 1999,
which was adopted in plenary session on the 15 June 2000[27],
most of the amendments he proposed were rejected. As a consequence, Mr Schmitt
withdrew his name as Rapporteur and the report was submitted to plenary under
the name of the committee chairman, Graham Watson (UK). It was adopted by the
European Parliament on 21 September 2001. The European Parliament called for
better legal assistance to asylum seekers during the procedures, the suspensive
effects of appeals, stricter criteria for the designation of safe countries and
the reduction of some time-limits, among other concerns.
The Draft
Directive includes some important provisions for separated children, such as
the appointment of a guardian; the possibility for guardians to be present in
the interviews (Art.10.1); the possibility of legal assistance (Art.9.1); the
right to legal assistance at the appeals stage (Art.9.4); that interviews are
conducted by specially trained officials (Art.10.2); and humane and safe age
assessment methods (Art.10.3).
However,
there are several aspects that should be addressed. The principle of best
interests of the child should be paramount throughout the
process. Furthermore, separated children should be exempted from admissibility
and accelerated procedures although their applications should be given priority
and processed fairly and as expeditiously as possible. Children should never be
detained but if so happens, detention shall be used only as a measure of last
resort and for the shortest appropriate period of time and never under
prison-like conditions.
In
cases where it is not clear whether the child wishes to or should apply for
asylum, special procedures should be adopted to promptly assess which course of
action is in the best interests of the child. This would normally be assessing
whether applying for asylum or returning to country of origin is the best
solution. In general, separated children should not be returned to a country of
origin without proper safeguards, ensuring their personal security and
integrity[28].
Family tracing could so be included in
this Directive and be initiated on arrival of a separated child in an EU Member
State. Prompt family reunification with responsible family members within EU
territory should be arranged as soon as feasible (see section on family
reunification, Dublin II and Temporary Protection).
Asylum procedures
Concerning age assessments, the proposal
should recognise its limitations since it is not an exact science and thus,
benefit of the doubt should be given to asylum-seekers claiming to be under 18 years
of age. In such cases, medical examinations should be conducted by
paediatricians with knowledge of the ethnic and cultural background of the
separated child, and in a sensitive and non-threatening manner.
· The principle of the best
interest of the child should be integrated into national law.
· Family tracing should be
initiated on arrival, and family reunification should occur as quickly as
possible.
· Separated children should not
be detained
· Separated children should never
be denied access to asylum procedures.
· Separated children should never
be returned to a country of origin or third country without specific safeguards
and provisions in place.
· Separated children’s
claims should never be placed in admissibility or accelerated procedures,
although they should be given priority and conducted in a timely manner.
· Age assessments should rely on
both psychological and maturity assessments, rather than simply physiological
tests.
· Applications by separated
children should be treated on a priority basis.
Reception
Minimum standards on the reception of
applicants for asylum in Member States
‘Reception
conditions’ refer to the set of measures adopted by States to assist
asylum-seekers from the time an application is submitted until a final decision
is made on that claim. UNHCR issued an extensive report on reception conditions
across the EU[29], which
shows variations across Member States, but in general provisions include[30]:
·
adequate arrival facilities at
borders for asylum-seekers
·
access to legal counselling, to
information and to documentation
·
freedom of movement
·
accommodation
·
adequate means of subsistence
·
access to education
·
access to medical care
·
in some Member States, access to
employment
Member
States have broad discretionary powers over the reception conditions they
offer, and the manner in which they are delivered. Harmonisation aims to
develop common minimum standards.
The first attempts by the EU Member States
to co-operate on reception conditions were plagued by disagreement over the
scope (who should be covered?) and the duration (for how long?) of proposed
facilities. This is certainly true of the 1996 proposal under the Italian and
Irish Presidencies. However, it has been widely recognised that co-operation over
the reception conditions offered in each Member State is necessary to remove an
incentive for ‘asylum shopping’.
The 1997 Council Resolution on Unaccompanied Minors who
are Nationals of Third Countries sets out the minimum standards agreed by the Member States
for the reception of separated children. This stated that regardless of legal
status separated children should be entitled to ‘necessary protection and
basic care’ (Article 3.2). In terms of medical provision, the special
needs of children who have experienced neglect, exploitation, abuse, torture or
degrading treatment is the responsibility of Member States (Article 3.7).
Access to education was only to be available if the asylum procedures took a
prolonged period to complete. If a separated child was forced to remain on a national
border waiting for an admission decision, that Member State was obliged to
supply all necessary support and care.
Reception
Since the publication of the Scoreboard, France had made it clear that
reception conditions were a key priority area under their Presidency.
Therefore, in July 2000, the French delegation in the Working Group on
Asylum
produced a discussion paper on harmonisation of reception conditions opening the
debate for the Commission’s proposed instrument.
In May 2001 the Commission issued its Proposal on minimum standards on the
reception of applicants for asylum[31].
The draft Directive guarantees the access to reception conditions of every
person and his/her family members – third country nationals or stateless
persons – applying for asylum in an EU country. In spite of this, the
document limits such access to refugees under the Geneva Convention, even if
the Member States can opt for applying the Directive to other status of
protection. This would have consequences for separated children granted
subsidiary/complementary forms of protection.
UNHCR argues that claims for protection
under the extended refugee definition should be included in the scope of the
proposal.
The range of reception conditions suggested by the
Commission is wide and, once again, Member States may introduce or retain more
favourable conditions than those prescribed, as long as they are compatible
with the Directive. It is also in line with the 1997 Council Resolution on
unaccompanied minors who are nationals of third countries.
Applicants shall in principle have freedom
of movement although restriction to a certain geographic area is possible. They
cannot be held in detention except in the following cases:
· to ascertain or verify his/her
identity or nationality;
· to determine his/her
nationality when he/she has destroyed or disposed of his/her travel and/or
identity documents or used fraudulent documents upon arrival in the Member
State in order to mislead the authorities;
· to determine the elements on
which his/her application for asylum is based which in other circumstances
could be lost;
· in the context of a procedure,
to decide on his/her right to enter the territory (see section on minimum
standards on Procedures).
Regarding accommodation, the draft
Directive determines how to provide housing, which in case of being granted by
a financial allowance must be sufficient to avoid applicants and their families
from falling in poverty. Minors will have the right to access the educational
system (at least the public one), in maximum 65 working days after their
application has been lodged. This period is extended utmost to six months
concerning access to vocational training or to the labour market. Each Member
State determines the conditions of such access.
Reception
Concerning access to health, the proposal makes a
distinction as to the type of procedures. Applicants shall have access to
primary health and psychological care during the regular procedure; while only
emergency health and psychological care and care that cannot be postponed will
be given in admissibility and accelerated procedures.
Reception facilities for recipients of temporary
protection are
considered in the Directive for granting temporary protection in the case of a
mass influx of displaced persons (see section on Temporary Protection).
There are some positive extensions of the
1997 Resolution’s provisions. The right to education for all
asylum-seeking children throughout the asylum procedures must be granted under
the parameters of the draft Directive. The section on information proposing
that any information shall be given in a written form in a language understood
by the recipient is also a step forward.
European Parliament
The European Parliament appointed Mr
Hernandez Mollar as Rapporteur for the draft proposal. The report is foreseen
to be presented to the Committee for Citizens’ Rights and Justice and
Home Affairs in October 2001.
Council
This fall 2001 the document is being
discussed at the High Level Working Group on Asylum. Spain, the next Presidency
after Belgium, has already identified this issue as a priority, which indicates
that the proposal might be approved before August of next year.
Relevance for
separated children
Many
of SCEP’s concerns about the treatment of asylum-seeking separated
children are included in the draft Directive. The variations between Member
States in the provision of emotional, social, physical and mental support to
vulnerable groups in general, justifies the need for a set of common standards
across the EU based on a high level of protection and care.
The
Commission’s proposed definition of unaccompanied minors is slightly
broader than the one used in the draft directive on minimum standards on procedures,
while including minors who were left unaccompanied after they have entered EU
territory.
It
includes several specific provisions for separated children; such as:
·
access to the education system
under the same conditions as nationals (Art.12);
·
that they are accommodated
together with an adult carer/guardian (Art. 16);
·
special health and psychological
care needs (Art. 20);
·
special health and psychological
care for minors during other procedures (Art.21);
Reception
·
attention to special needs of
minors (Art.23).
Article
24 and 25 deal exclusively with minors and include the best interest of the
child principle; rehabilitation of victims of abuse, neglect, exploitation,
torture, etc; family tracing and training of those working with separated
children.
However,
the proposal does not exclude the possibility of children being held in
detention. Moreover, it is UNHCR and Save the Children position that in terms
of education, separated children should be offered instruction in their mother
tongue, and should be given adequate help to learn the language of the host
country. This is essential for separated children’s integration into host
societies and for them to reach their potential academically.
· Separated children should never
be treated as adults, in terms of accommodation or detention.
· In general, separated children
should not be detained, for immigration reasons.
· The specific health needs of
separated children must be fully assessed and addressed, in particular, the
psycho-social needs.
· The Spanish Presidency
(January-June 2002) has stated that reception facilities are one of their key
priorities.
·
The EP’s report is due to be
adopted in the fall 2001.
Dublin Convention II
Proposal for a Council regulation
establishing the criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged in one of the Member
States by a third-country national (Dublin II)
Increased integration of the EU in terms
of freedom of movement has raised new issues and complications for the Member
States. Within the Schengen Agreement, the signatory states recognised that a
reduction in border controls would create freedom of movement for
asylum-seekers as well as citizens of the Member States. Therefore they
included a section (articles 28-38) that determined which Member State was
responsible for an asylum application. This clause operated from March 1995
until September 1997, when the ‘Dublin Convention’ came into force.
The Convention determining the State
responsible for examining applications for asylum lodged in one of the Member
States, or Dublin
Convention as
it is commonly known, was signed in June 1990 by all the 12 EC Member States[32].
For the original 12 signatories it came into force in September 1997, for
Austria and Sweden in October 1997 and for Finland in January 1998. On 25 March
2001, Denmark also became part of the Schengen area. At present, the United
Kingdom and Ireland are the only Member States which have not adopted the
Convention. It is an intergovernmental agreement, but can be considered the
first step towards the EU asylum harmonisation since it would help to reduce
the number of the so-called “orbit cases”, in which no state would
consider itself responsible to examine an asylum application.
The Convention established an independent
Committee (known as the Article 18 Committee) responsible for questions of
application and interpretation. Two distinct elements form the substance of the
Dublin Convention: firstly, the criteria Member States use for determining the
State responsible, and secondly, the procedure for readmission to the Member
State responsible if a person is found in one Member State having already
submitted an asylum application in another.
The Amsterdam Treaty(TEU II) called on the Commission to
draft a new common instrument for determining the Member State responsible for
an asylum application to replace the intergovernmental mechanism.
In December 1998, the Vienna Action
Plan outlined
two specific issues that need to be addressed (from the governmental
perspective) by the new instrument:
· Firstly, procedures dealing
with situations where responsibility criteria for reunifying families involving
a number of Member States should be improved.
Dublin
Convention II
· Secondly, the procedures for
recognised refugees to change their country of residence needed to be improved
and reassessed.
In general, Member States
stated that they wanted to limit ‘secondary movements’ of
asylum-seekers within the EU. The Tampere Summit reaffirmed these goals.
In March 2000, the Commission presented a Working
Paper entitled
Revisiting the Dublin Convention: developing Community legislation for determining
which Member State is responsible for considering an application for asylum
submitted in one of the Member States[33]. The Working Paper reassesses
the Dublin Convention in terms of positive aspects that can be built on and
aspects that have not been effective in practice.
The Commission has evaluated the Dublin
Convention on the basis of its founding aims and principles, namely:
· to avoid situations where
applicants are left in doubt for too long about their application;
· to guarantee all applicants
that a Member State will take responsibility for their application;
· to prevent multiple
applications, either concurrently or consecutively;
· to ensure that all Member
States operate effective pre-entry and entry controls on persons wishing to
enter EU territory;
· to deter misuse and preventing
asylum-seekers being able to choose the Member State in which they apply;
· to maintain the unity of
families and reunite separated families;
· to create an effective burden-sharing mechanism.
The Dublin Convention has not been fully
successful in any of these aims and principles due to Member States’
different interpretation of the established criteria.
In 2000, Member States were asked to
complete a questionnaire on the practical implementation of the Dublin
Convention, and on their experiences with the mechanisms. The responses
contributed to the Commissions’ draft Proposal that was presented on the 26
July 2001[34].
According to the draft Proposal, the
residual criteria for determining the state responsible for examining an asylum
claim is that the responsibility for its examination belongs to the first
Member State where the application was lodged. There are strict criteria that
prevail which can determine the transfer of responsibility to another Member
State:
· Unaccompanied minors:
applications shall be examined by the State where they have a family member who
can assume guardianship/ act as a primary caregiver.
· Family links: when the asylum
seeker has a family member who’s application is being examined or was
already granted refugee status in other Member State, this is the one
responsible for examining the claim.
Dublin Convention II
· Humanitarian clause: by request
of a Member State and with the consent of the applicant, other states can
examine the application for humanitarian reasons, related to family or cultural
grounds.
· Possession of a residence
permit.
· Possession of a visa.
· Irregular entry into the
territory: the EU State which borders with a non Member State and was
irregularly crossed or tolerated the unlawful presence of the third-country
national for more than two months, is the one responsible for examining the
application.
· Regular entry into the
territory: the responsibility for examining the application lies with the
Member State in which it was lodged.
The proposal lays down the time limits and
the conditions that Member States have to respect when taking charge or taking
back the applications for asylum.
UNHCR welcomes the wider definition of family members
introduced in the draft Regulation as it includes ascendants, descendants and
other persons related to the applicant that lived in the same home in the
country of origin, provided that one is dependent on the other.
Another improvement is the fact that asylum seekers
have the right to ask for information of any data processed that concerns them
and the right to be informed, in a language that they understand, of a decision
on the transfer of the application to another Member State, from which they can
appeal.
The Committee for Citizens’ Rights
and Justice and Home Affairs appointed Luis Marinho (Portugal) as Rapporteur
for the Proposal.
Council
The Proposal is being discussed in the
Asylum Working Group under the Belgian Presidency.
SCEP advocates that when determining the
Member State responsible for a separated child’s asylum application, the
‘best interests of the child’ should form the basis of policy
and practice.
The Dublin Convention is an important
instrument of family reunion of asylum seekers and if implemented would
significantly change the present situation were family reunification of
separated children seeking asylum very rarely occurs[35].
The draft Regulation specifically refers to the transfer of responsibility to a
Member State where one member of the family of the child is and cares for the
child (Art.6). Article
Dublin Convention II
15 seeks to prevent separation of families
by application of the criteria set out in the Regulation. Member States should
co-operate with each other to ensure that separated children can rejoin family
members present in other Member States as soon as possible. Decisions about
separated children’s asylum applications and applications for family
reunification,
should be prioritised and separated children should not be forced to wait long
periods of time away from their families where family reunification is
possible. This would bring the EU’s family reunification policy in line
with the UN Convention on the Rights of the Child (Article 10(1)).
It should be recognised that it is more
beneficial to the separated child if they are able to live in a familiar
situation whilst applying for asylum. Therefore the definition of
‘family’, as regards family reunification, should be broad enough
to include immediate and extended family members.
· Family tracing should start as
soon as a separated child enters EU territory, and family reunion should occur
as quickly as possible based on the best interests of the child.
· As very few cases of family
reunification of separated children has taken place so far, Member States
should be encouraged to establish systems that will expedite family reunion of
separated children.
· UNHCR and NGO’s should
monitor potential and implemented cases of family reunion.
· In view of the uncertainty of
the timetable, the legislative process of this instrument should be closely
monitored.
Refugee Status
Proposal for a Council Directive
laying down minimum standards for the qualification and status of third country
nationals and stateless persons as refugees, in accordance with the 1951
Convention related to the status of refugees and the 1967 protocol, or as
persons who otherwise need international protection.
The
Maastricht Treaty(TEU I) launched a number
of debates and reports within the EU to discuss the refugee definition and
subsidiary/complementary forms of protection. On the 4 March 1996, the Council
adopted a Joint Position, on the basis of
article k3 of the EU Treaty, on the harmonised application of the definition of
the term ‘refugee’ in article 1 of the 1951 Geneva Convention
relating to the status of refugees[36].
Still, it was merely a joint position and the difficulty in harmonising in this
area was that legal terms and practice are different and not adequately defined
in all the Member States[37],
founding little consensus even at national level.
In
1998, the European Parliament published a report on its own initiative, and
held an expert hearing on the issue of complementary forms of protection[38].
Under the Tampere European Council Conclusions, the Commission had to present a
proposal for the approximation of rules on the recognition and content of
refugee status and on complementary forms of protection.
The draft
Directive was presented on 12 September 2001[39].
This proposal is aimed at:
(1) laying down common interpretation
criteria for the application of the refugee definition of the 1951 Convention
and 1967 Protocol;
(2) laying down common interpretation
criteria for the granting of subsidiary protection status; and,
(3) establishing minimum standards of
treatment applicable to persons falling under the above categories.
UNHCR has often stressed that, since one
of the main features of refugee status is its international character, it is
essential that States Parties the 1951 Convention and 1967 Protocol interpret
the refugee definition in a similar and harmonized manner. UNHCR has also
stressed that, as the Convention and Protocol do not cover all categories of
persons in need of protection, there is a need for establishing complementary
or subsidiary regimes of protection.
The 1951 Geneva Convention / 1967 New York
Protocol define a refugee as a person who is outside of his / her country of origin
and owing to well founded fear of being persecuted for reasons of race,
religion, nationality, political opinion, membership of a particular social
group is unable, or owing to such fear, is unwilling
Refugee Status
to avail himself of the protection of that
country. The category “persons eligible for subsidiary protection”
include those who have a well-founded fear of being subjected in their country
of origin to torture or inhuman or degrading treatment or punishment; or to a
violation of a human right, sufficiently severe to engage Member State’s
international obligations; or to a threat to their life, safety or freedom as a
result of indiscriminate violence arising in situations of armed conflict, or
as a result of systematic or generalised violations of their human rights.
The Commission’s proposal has some
positive aspects, including the recognition of the fact that persecution by
non-State agents may provide basis for a claim under the 1951 Convention and
1967 Protocol.
A
person in need of protection but who does not qualify as a refugee, because
he/she does not fulfil the requirements of the Geneva Convention, shall be
granted with subsidiary protection status. This means that such forms of
protection are not in competition with the Geneva Convention but complement the
protection offered.
The
rights and benefits granted to refugees and to those enjoying other forms of
protection are similar although with some differences related to the time
within which those rights shall be endorsed. Those laid down in the draft
Directive must not affect the rights conferred by the Geneva Convention. The
provisions of the proposal include, inter alia, the right to information in a
language likely to be understood by the applicant; access to employment and
education; the granting of residence permits; freedom of movement within the
territory of the Member State where they were granted protection; access to
appropriate accommodation and access to health and psychological care. Article
6 ensures that accompanying family members are entitled to the same status as
the applicant for international protection except if they don’t fulfil
the requirements laid down in the proposal to be granted refugee status or
subsidiary protection.
The
draft Directive also deals with cessation and exclusion clauses.
Debate within and
between the institutions
Relevance to separated children
The proposal provides that the “best
interests of the child” should be a primary consideration of Member
States when implementing the Directive and contains special provisions for the
protection of unaccompanied minors, including:
(1)
That
Member States shall take the necessary measures as soon as possible, to ensure
the representation of unaccompanied minors enjoying international protection by
legal guardianship, or representation by an organisation which is
Refugee Status
responsible for the care and well-being of minors, or by any other appropriate representation.
(2)
That
Member States shall ensure that the minor’s needs are duly met in the
implementation of the provisions of this Directive by the guardian appointed
for each unaccompanied minor. The appropriate authorities shall make regular
assessments.
(3)
That
Member States shall ensure that unaccompanied minors are placed with adult
family members, or with a foster family, or in centres specialised in
accommodation for minors, or in other accommodation with a suitable situation
for minors.
(4)
That Member States shall ensure that
siblings shall are kept together, and that changes of unaccompanied
minors’ residence shall be limited to a minimum.
(5)
That,
if it is in the best interest of the child, Member States shall endeavour to
trace the members of the family of unaccompanied minors as soon as possible.
(6)
That
Member States shall ensure that those working with unaccompanied minors receive
appropriate training on their needs.
Lobbying Points
·
Child-specific criteria[40]
should be taken into consideration in the cases of separated children; of
particular importance is taking child specific forms of human rights violations
into consideration when assessing their need for international protection.
·
Member States should be encouraged
to develop guidelines on interviewing and assessing claims of separated
children.
·
Member States should establish
policies and systems that ensure that, regardless of the status awarded, the
rights of every separated child are respected.
Timetable &
Targets
·
The Citizens’ Rights and
Justice and Home Affairs Committee will appoint a Rapporteur and the proposal
will follow the subsequent terms of the consultation procedure within the
European Parliament;
·
The Council will start discussions
in January 2002.
Family Reunification
Proposal
for a Council Directive on the Right to Family Reunification
The unity of families and protection of
family rights have been recognised by all the EU Member States through
international legal instruments at European and UN levels[41].
Each Member State has developed different procedures and criteria for reuniting
the families of refugees, and ensuring their ‘right to family life’
(Article 8[42]). These
different systems and criteria are due to be harmonised as an essential element
of the common EU Immigration policy.
Since the creation of more restrictive
policies in the 1970s family reunification of non-EU nationals has represented
one route for non-EU nationals to access the EU’s territory. Much
intergovernmental co-operation has focused on closing such
‘loop-holes’ in the system. However, it has been recognised by the
EU institutions morally and legally[43]
that the right to family life, and consequently family reunification, should be
available to non-EU nationals.
All of the Member States differ in their
application of family reunification law. Generally, all Member States provide
for either a right to or a discretionary possibility of family reunification[44],
and only Austria operates a quota system. As regards separated children, few
Member States have followed SCEP’s guidelines in offering family
reunification to asylum seeking separated children, as well as recognised
refugee children and as noted in Dublin II (see section on Dublin II) few cases exist. However if
the instrument replacing the Dublin Convention is adopted and implemented at
national levels, this should change.
Family reunification is a classic example
of the inter-linkage of immigration and asylum policies within the EU. During
the discussions of the Heads of Government at the European Council in
Maastricht in 1991, it was recognised that a common approach to family reunion
was needed. Thus, in 1993 JHA Ministers adopted a Resolution, which created a set of
‘soft law’ criteria for family reunion policy across the EU[45].
These guidelines were neither binding nor fully implemented by all the Member
States. However, they created a basis for further co-ordination and
harmonisation.
Family Reunification
Family reunification of separated children
has ramifications for all areas of asylum law and EU harmonisation. SCEP
advocates that family tracing should occur immediately on arrival and family
reunification should follow as soon as possible, whilst always taking the best
interests and opinions of the child fully into account (CRC Articles 3 &
12).
Harmonisation
The Commission presented its proposal for
a Council Directive on the right to Family Reunification[46]
to the Council of Ministers and to the European Parliament on 1 December 2000,
making it clear that the draft proposal was intended as a central element of a
greater immigration system rather than a ‘stand-alone’ instrument.
The consequence of including refugees within the draft directive will be to tie
asylum and immigration policy together. This is essential, but it is also
necessary that these two areas be seen as different in fundamental ways.
The Commission’s draft Directive was
welcomed by UNHCR and refugee organisations, as it included the right of
recognised refugees to family reunification. Nevertheless, the proposal caused major
controversy (concerning its depth and coverage) within the Council of Ministers
and the Commission had to present a modified Proposal, which was issued in October
2000[47].
At
present, spouses (or unmarried couples) and children are allowed to move from
one EU country to another for family reunification purposes. Family members in
the ascending line can also be admitted if they are dependent on the applicant
and deprived of necessary means of family support in the country of origin. As
for adult children, the proposal requires that they are objectively unable to
satisfy their needs by reason of their state of health.
The scope of the proposal excludes family
members of citizens of the Union who have exercised their right to free
movement of persons and people enjoying other forms of international protection
than refugee status. In the latter case, the exclusion came by suggestion of
the European Parliament, considering that family reunification of those
enjoying other forms of international protection should be properly addressed
in an autonomous instrument. The Commission took this amendment into
consideration and should have treated this subject in a proposal on
complementary/subsidiary forms of protection (see section). However, in the
draft Directive on refugee definition and complementary/subsidiary forms of
protection, there is no special provision on family reunification but only the
possibility of giving derivative status to the accompanying family members of
the applicant.
The
modified proposal has now a separate chapter for family reunion of refugees,
including special provisions for separated children. Concerning right to family
reunion, it allows the entry and residence of relatives in the direct ascending
line or
Family Reunification
other
family members in the case where the minor has no ascendant relatives or they
cannot be traced.
The
draft Directive also asserts the importance of Article 3 of the Convention on
the Rights of the Child (CRC) (“best interests of the
child’’). The Commission’s explanatory statement states that
children should not be separated from their families, in accordance with
Article 9 of the CRC.
Debate within the Institutions
All the proposals drafted under articles
61-64 (TEU) must be agreed by unanimity in the Council of Ministers, under the Consultation
procedure with
European Parliament.
Council of Ministers:
The discussion in the Council Working
Party on Migration, SCIFA, seems to be far from reaching an agreement. In the JHA Council
meetings of 28 May 2001 and of 27 and 28 September 2001, main questions like
the definition of family members, the guarantees and obligations of person
benefiting from the right to family reunification or the scope of the right to
family reunification for children (age, conditions) did not reach consensus.
European Parliament:
Ewa Klamt (Germany) was appointed
Rapporteur but as she suggested that recognised refugees should not be included
in the Directive, and that it should be far more restrictive in criteria and
scope,[48]
the Committee as a whole rejected her recommendations. Consequently, Ewa Klamt
stepped down as Rapporteur, to be replaced by Graham Watson, the Chairman of
the Committee. The report was adopted in the September 2001 plenary session.
Other EP suggestions modifying the
original proposal were related to the quality and assessment of accommodation;
the resources the applicant may be required to provide and the prohibition on
access to employment and vocational training by relatives in the ascending line
or adult children.
UNHCR argues that family tracing for
separated asylum seeking children is a first priority and that it is essential
that unaccompanied children are assisted in locating and communicating with
their family members. It is fundamental that they are given the opportunity to
reunite with family members as early as possible; the tracing process should be
started immediately upon arrival of a separated child. However, care must be
taken to ensure the safety of family members in the child’s country of
nationality or habitual residence.
Family Reunification
Save the Children also welcomed the draft Directive in
general though urging for clarification in certain provisions in order to guarantee
that the best interests of the child are a primary consideration.
The UN Convention on the Rights of the
Child (1989) specifies that separated children have the right to maintain
contact with their families[49].
The best interests of the child should dictate how families
are reunited, both within the EU and when third countries are involved.
Furthermore, the child should be informed about its rights and the state of
their application for family reunification.
Lobbying Points
· Ensuring that the rights of
refugees remain in the draft Directive.
· Establish systems of family
tracing in co-operation with International Committee of the Red Cross, UN or
other agencies, which facilitate early and swift tracing of families.
· Establish systems for rapid
family reunion.
· The Council will continue the
discussion and a new compromise proposal might be presented by the Presidency
to COREPER with a view to the JHA Council on 6 and 7 December 2001. However, it
is unlikely that the proposal is adopted under the Belgian presidency due to
significant political disagreement on several aspects of the Draft Directive.
Readmission agreements
Readmission
agreements between the EU and third countries
Readmission
agreements are arrangements between states by which they agree to readmit their
nationals and / or third country nationals who do not satisfy or do not fulfil
any longer the conditions for entry or stay in the territory of the contracting
party. Readmission agreements were primarily designed for improving border
control and burden sharing. Their use has increased rapidly over the last ten
years. For instance, between 1950 and 1990 18 readmission agreements were
concluded, while between 1990 and 1999 220 agreements were created[50].
The majority of these were bilateral and were between Western European states
and the states of Central and Eastern Europe. Few of these agreements were
concluded between blocks of states, for instance the Benelux states or the EU.
EU
Member States have two parallel systems of readmission; the Dublin
Convention for internal readmission of asylum
seekers, and agreements with third countries (non-EU states) for nationals or
third country nationals.
Pre-harmonisation
instruments
Although
each Member State has already concluded several readmission agreements with
third countries (according to its national foreign policy), it was felt that
with the increasing co-operation under the Schengen
Agreement and the realisation of freedom of
movement within the Schengen area, readmission agreements on a bilateral basis
were becoming ineffective to return immigrants and deter others to come. As a
consequence, Member States in the mid-nineties, decided through the JHA
Council, to adopt a collective strategy
towards the issue.
In
November 1994, the JHA Council agreed on a ‘specimen bilateral
readmission agreement’[51].
This set the mould for national bilateral agreements, referring to third
country nationals as well as to nationals of the Contracting States, but held
no responsibilities as far as the asylum claims of people returned to a
‘safe third country’ should be treated
or heard. Furthermore, there is no
mention of non-refoulement principle in the clause.
This
agreement was followed in July 1995 with a Council Recommendation on the ‘Guiding Principles in Drawing up Protocols
on the Implementation of Readmission Agreements’[52].
This recommendation specified some implementing tools, including the use of a
‘simplified procedure’ for returning people found at national
borders and the specific documents which would determine which state was
responsible for the person. There was no mention of the specific rights of
asylum-seekers.
Readmission agreements
Later,
much inter-governmental co-operation has developed outside the EU within other
intergovernmental organisations, such as the Budapest Group[53]
and the Inter-Governmental Consultation[54].
Harmonisation
The
Amsterdam Treaty (TEU II) has conferred
power to the European Community in the field of readmission and one Conclusions
of the Tampere European Council has mandated the Council to conclude
readmission agreements or to include standard clauses in other agreements
between the EU and relevant third countries or group of countries. The implication of this is that EU Member States cannot
conclude collective readmission agreements with third countries without the
agreement of the Commission and the European Parliament (under the
Consultation procedure). However, as it is recognised that readmission is a far
broader issue than simply the stated Amsterdam goal of returning illegal
immigrants, it is likely that bilateral agreements between individual Member
States and third countries will continue.
In
December 1999, the JHA Council stipulated the language of a standard
readmission clause to be inserted in Community co-operation agreements.
However, as in the 1994 EU Specimen Bilateral readmission Agreement, there are
no references to the obligations of the Geneva Convention
or to the non-refoulement principle[55].
Following
the JHA Council in December 1999, the Finnish Presidency proposed a
‘Council Regulation determining the obligations as between the Member
States for the readmission of third-country nationals’[56]. The proposal was the first use of the
extended Presidency ‘right to initiate’ policy; from an institutional
perspective this made the proposal somewhat sensitive. However, the proposal was ill timed and
not greeted enthusiastically by many Member States, as it did not follow the Vienna
Action Plan’s proposal for a cross-pillar approach.
Furthermore,
the Commission was not keen to see progress made on this initiative, as they
intended to deal with readmission in the context of the whole post-Amsterdam
immigration agenda, rather than in piecemeal, uncoordinated measures. Equally, the European Parliament came
to the same conclusion on the proposal[57],
and rejected it calling upon the Commission to develop a comprehensive policy
towards third countries, in light of the Tampere Summit Conclusions.
Readmission agreements
Current
Developments
At
present, specific EU readmission agreements are being negotiated within the JHA
Council (these differ from the readmission clauses added to other EU external
agreements). The focus of the JHA
Council are the States assessed by the High Level Working Group on
Asylum and Migration, namely Albania (including
Kosovo), Afghanistan, Morocco, Iraq, Somalia and Sri Lanka.
Relevance for
separated children
There
are no specific clauses in the readmission agreements prepared thus far
relating to separated children; even less on asylum seeking separated children
: they are subject to the same treatment as adult asylum-seekers as far as
‘safe third country’ criteria are concerned.
However,
readmission agreements could create valuable frameworks for return programmes of
separated children, after thorough analysis of their best interests. Some separated children correctly claim
that their countries will not accept them back, and for this reason it is
important to create durable frameworks which would allow children to return
home, if this is deemed the appropriate solution. These framework agreements
should be subject to internationally accepted standards and safeguards to
ensure that the child’s safety and rights are respected.
SCEP
advocates that separated children should not be returned to their country of
nationality before proper and secure safeguards are established[58].
As
far as separated children whose asylum claims have failed are concerned; UNHCR
has specific guidelines for their protection and ensuring safe return[59].
Lobbying Points
·
Readmission agreements should
contain specific provisions for separated children, in accordance with UNHCR
and SCEP guidelines and other international protection instruments.
·
Readmission agreements should include the establishment of
return programs for separated children.
Timetable &
Targets
The
big part of the negotiation and drafting of the Community readmission
agreements is done within the JHA Council and its High Level
Working Group on Migration. Consequently, their activities should
be followed closely, through contacts with the national delegations and
governments.
Readmission agreements
·
In addition, the Commission and
the European Parliament are interested that these agreements should be created
and adopted with the full knowledge and involvement of all the institutions, to
ensure transparency and accountability.
Therefore it is important to encourage the institutions to persuade the
Council that readmission should constitute an element of a far greater
migration policy, with a truly cross-pillar basis and inter-institutional
agreement.
Glossary
Glossary of Terms
Amsterdam Treaty(TEU II) – signed in 1997 and entered into
force 1 May 1999, the amended Treaty on European Union. The Treaty’s main
goals were alignment of employment policies and strengthening of Economic and
Monetary Union, however a new section was dedicated to the harmonisation of
Asylum and Immigration policy, as part of a new Chapter IV entitled
“Towards an area of freedom, security and justice”. Basically, the
‘soft law’ agreements between states were to be developed into a
common asylum policy, under Community competence (First Pillar). The treaty allocated this
process a transitory period of 5 years, after ratification, and a list of the
necessary common instruments was adopted.
Best
Interests of the Child – Article
3(paragraph 1) of the UN Convention on the Rights of the Child (1989) states:
“In
all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary
consideration.”
All
the EU Member States are signatories to this article.
Budget
Lines – are the geographical or thematic
divisions placed on the entire EU budget, to ensure that adequate funds are
available to EU priorities. They are decided by the Council of
Ministers and European
Parliament, and allocated by the European
Commission to fund the implementation of EU
policies.
Burden or responsibility sharing – this has become a
familiar ‘buzz-word’ in EU Asylum policy, meaning sharing of the
financial and physical cost of asylum systems for Member States. The concept
has been used to support the capacity of States to host and protect refugees,
particularly in situations of mass-influx.
Throughout
the 1990s different approaches have been tested, without success, to compensate
Member States that handle the majority of EU asylum claims. The most recent
example is the distribution system for allocating money from the
European Refugee Fund.
Centre for Information, Reflection and
Exchange on Asylum (CIREA) – established in 1992 by a Council Joint Decision, CIREA is
a Working Group that facilitates the confidential exchange of information about
asylum matters between the Member States. Focus is placed on specific countries
of origin, statistics, legislative developments and case-law. UNHCR is able to
contribute to the meetings in an expert capacity, as an observer. CIREA has no
decision-taking powers.
Centre for Information, Reflection and
Exchange on Frontiers and Immigration (CIREFI) - similar to CIREA but the focus is on
trafficking, illegal entry of migrants and border controls. There is no access
to the data or participation by outside experts.
Committee
of Permanent Representatives II (COREPER II) – deals with JHA matters. Made up of the Permanent
Representatives of the Member States to the
Glossary
EU.
The majority of these Representatives are high-ranking national civil servants
from the Foreign Affairs Ministries, based in Brussels. They are assisted by
the Council’s legal service. They are responsible for preparing the work
of the Council of Ministers, including JHA meetings, and arranging the
ministerial meetings’ agendas.
Committee of Permanent Representatives
I (COREPER I) – made up of the Deputy Permanent Representatives of each Member
State. In an effort to share the workload with COREPER II, they discuss certain
policy sectors and set the agenda for specific ministerial meetings.
Council
of Europe – established in 1949, the
Council of Europe has 43 Member States and is based in Strasbourg. The Council
of Europe has its expertise in the field of European human rights instruments
and law. The European Court of Human Rights is a Council of Europe body.
Justice
and Home Affairs Council (JHA Council)- As far as Justice and Home Affairs
is concerned all legislation must be adopted on the basis of unanimity. This is
different from the traditional decision-taking procedures within the First
Pillar where the vast majority of legislation is adopted according to Qualified
Majority Voting.
Council Working Party on Asylum –
a Working
Party of the Council of Ministers, made up of national civil servants and
experts. They meet monthly to discuss draft legislative instruments as well as
the development of policy in the area of asylum. These meetings are closed to
outside organisations.
Council Working Party on Migration
– a
Working Party of the Council of Ministers, made up of national civil servants and
experts. They meet monthly to discuss draft legislative instruments and the
development of migration policy in the EU. These meetings are closed to outside
organisations.
Decision-making
in the EU
Consultative procedure – on the basis of a proposal, the
Council decides by unanimity after consulting the EP. The results of the
consultation can be disregarded if the Council wishes. However, the Commission
can integrate EP suggestions into modified proposals on a discretionary basis.
This procedure is applicable to JHA matters (including asylum).
Co-operation procedure – the final decision rests with
the Council of Ministers but the EP is given two readings of the draft
legislation and allowed to submit amendments. These can be ignored by the
Council of Ministers if desired, but often
Glossary
the Commission integrates EP suggestions
into modified proposals on an informal basis. This procedure is not applicable
to JHA affairs.
This procedure is applied to the majority
of decision-making in the First Pillar, but not applicable to JHA matters.
Dublin Convention – signed in 1990, but not
ratified and implemented until 1997. The Dublin Convention, or Convention
Determining the State Responsible for Applications for Asylum, established
intergovernmental rules for determining who was responsible for an asylum-seeker,
and a system of information exchange. The Dublin Convention can be considered
the first solid attempt to co-ordinate EU asylum systems. However, it is
dependent on an accompanying fair system of burden-sharing and common procedural and
material law standards and definitions. (see EURODAC and safe third country)
EURODAC – the EURODAC system is based on
the collection of fingerprints and data of all asylum-seekers in the EU above
14 years of age aiming to support the Dublin Convention, or the future EU instrument
replacing it. The regulation creating Eurodac was adopted by the Council in
December 2000.
European Commission – the Commission is the
legislative initiator within the EU, and also has the responsibility to
implement EU policy through the management of budget lines. In the area of
asylum, the Commission shares the right to initiate policy with the
Council/Presidency.
Made up of 20 Commissioners (2 from the 5
largest states and 1 from the others), the College of the Commission is a
nominated, and, therefore, an intentionally impartial body. It must be approved
by the EP. The Commissioners are headed by the ‘President of the European
Commission’, at the moment Romano Prodi, and supported by a personal
‘’Cabinet’’. Most decisions are created by consensus,
but majority voting is the rule.
The competence of the EU is divided into
26 different Directorate-Generals (DGs), along similar policy lines to national
governments. For instance, DG Justice and Home Affairs deals with Asylum and
Immigration, police co-operation and judicial co-operation (criminal and civil)
in the EU, or DG Employment and Social Affairs. Each DG develops legislative
and policy initiatives (Directives, Regulations,
Glossary
Communications) according to the demands
of the revised treaties or other institutions’ requests.
European
Council – started as an informal meeting of
the Heads of State and Government in the EEC, in 1961. The European Council was
given a formal identity in the Single European Act, and fully consolidated in the Maastricht and Amsterdam treaties.
The President of the Commission was also included as a participant. Basically,
the role of this institution is that of an Executive. According to the
principle of subsidiarity the European Council has the role of resolving
conflicts which cannot be resolved at Minister level in the Council of
Ministers. It also gives policy orientation.
European Parliament – the EP has 626 Members of the
European Parliament (MEPs) elected by the same voting procedure in each member
state, and divided into ‘political groups’ (usually along
ideological lines). The decision-making powers have grown dramatically since
the establishment of the EEC, when the EP was an appointed assembly without
power. The first direct elections were in 1979, and gradually powers have been
extended to the EP, under the Co-operation and Co-decision procedures. The Amsterdam
Treaty extended the Co-decision procedure to most asylum matters with a
transition period of 5 years (after 2004).
European
Refugee Fund – is an amalgamation of EU budget
lines, previously operated independently, on
the reception, integration and voluntary repatriation of refugees and displaced
people (former budget line B5-803). The intention is to simplify the allocation
of funds to projects through decentralised management at national level, whilst
also sharing the cost of projects proportionally amongst the Member States. The
fund was created for a five-year period in September 2000 by a Council
Decision.
Geneva
Convention – was signed in July 1951, the
United Nations Convention relating to the Status of Refugees. It was amended by
an additional Protocol in 1967 (New York Protocol), which removed both the
limitation of persecution before 1 January 1951 to allow people persecuted after
that date to be granted refugee status, and the geographical limitation of
Europe so that Convention has worldwide application. It forms the basis of all
European national asylum systems.
High Level Working Group on Asylum and
Migration (HLWG) – the HLWG was established in December 1998 during the Austrian
Presidency, and was given the mandate of developing an integrated cross-Pillar
approach to migration policy:
“The European Union needs a
comprehensive approach to migration addressing political, human rights and
development issues in countries and regions of origin and transit. This
requires combating poverty, improving living conditions and job opportunities,
preventing conflicts and consolidating democratic states and ensuring respect
for human rights, in particular rights of minorities, women and children. To
that end, the Union as well as Member States are invited to contribute, within
their respective competence under the Treaties, to a greater coherence of
internal and external policies of the Union. Partnership with third countries
concerned will also be
Glossary
a key element for the success of such a
policy, with a view to promoting co-development.” (Paragraph 11, Tampere
Conclusions, October 1999)
The working group is comprised of
high-level national civil servants and Commission officials. The HLWG has
selected a number of countries to focus on and produced an ‘Action
Plan’ for each one, which outlines specific issues relating to that
state, and priority areas for future development and relations. The initial
Action Plans focused on Afghanistan, Albania (and Kosovo), Morocco, Somalia,
Sri Lanka and Iraq. The Tampere Summit extended the group’s mandate,
which was reconducted at the Nice Summit (December 2000)
Intergovernmental
Conferences (IGC) – these are
intergovernmental forum for agreeing changes to the Treaties. They occur before
every constitutional change.
Legislation in the EU
Communications - the Commission publishes
information papers on a range of subjects; their prime objective is to start an
informed debate within the Institutions before an appropriate form of
legislation is drafted.
Regulations – these are binding immediately
– therefore no act of legislature is necessary as they move directly into
EC law - applicable to all Member States and ensure the uniformity of EC law.
Directives – these are binding legal
requirements on the Member States. They can be addressed to all Member States
or individuals. However, it is the responsibility of the Member State to
integrate the details into national law. There are penalties if it can be
proved that Member States are stalling or delaying implementation.
Decisions – these are binding agreements
made by the Council or the Commission. They refer to the implementation of
policy already agreed.
Resolutions – these are not binding but serve
to highlight areas of concern and co-operation. It is becoming more common that
inter-institutional ‘joint resolutions’ are adopted, between the EP
and the Council of Ministers.
Lomé/Cotonu Convention – the new agreement between the
African, Caribbean and Pacific States (ACP) and the EU was signed in Cotonu,
Benin in May 2000. As a result of agreement on a standard readmission clause at the JHA Council in December 1999, the Cotonu
Agreement includes a clause concerning co-operation to repatriate illegal
ACP-nationals from the EU.
Whilst
other readmission agreements being discussed. These will have major
implications for ACP-nationals regardless of age. For instance, the Readmission
Agreement that is proposed with Morocco would have implications for separated
children from sub-Saharan Africa.
London Resolutions – a number of Resolutions
concerning asylum policy were adopted at the end of 1992 (British Presidency).
They are collectively known as the London Resolutions and include:
· Resolution on Manifestly
Unfounded Applications for Asylum;
· Resolution on a Harmonised
Approach to Questions concerning Host Third Countries;
Glossary
· Conclusions on Countries in
Which There is generally no Serious Risk of Persecution.
Although agreed outside the competence of
the EC/EU these resolutions indicate the growing willingness to co-ordinate
procedures and policies.
N.B. the EU does not have a legal personality to date, unlike
the EEC or European Community as it became. Therefore all European Law is
referred to as EC law.
Pillar structure – First Pillar;
Second Pillar; Third Pillar:
The Maastricht Treaty created a
three-pillar structure for the EU, which incorporated areas of policy that had
developed as intergovernmental co-operation. The First Pillar was ‘European Community’;
generally, this included all former-EC competence – including, economic,
social, environmental, industrial, trade and agricultural policies. The Second
Pillar was
‘Common Foreign and Security Policy’ (CFSP), this integrated
intergovernmental co-operation in foreign policy and security policy.
The Third Pillar was ‘Justice and Home
Affairs’; this included all the intergovernmental co-operation on
cross-border crime, asylum and immigration, visa, border control, justice
through the EU, police co-operation, fraud and trafficking.
The allocation of competencies to the
three pillars was deemed inappropriate in practice; therefore the Amsterdam
Treaty(TEU II)
shifted some policy sectors – including Asylum policy, which after a
5-year transitory period will stand in the First pillar.
Presidency – the Presidency of the European
Union rotates through the Member States every 6 months. A member state is
expected to hold at least two Summits of the European Council during this time (normally,
one at the beginning of their period and one at the end), and to facilitate the
adoption of legislation, policy instruments, action plans and generally,
conduct the ongoing work of various Council groups. Often the agendas of
Presidencies are known far in advance, and for important policy goals, such as
Economic and Monetary Union, or Asylum harmonisation, the ‘troika’
(the previous, present and future Presidencies) will discuss the agenda and
timetable. There is certainly competition between the states to have successful
Presidencies with durable and concrete results.
Qualified Majority Voting (QMV) – QMV is a voting system
based on weighted votes. Each
Member State has a number of votes set in proportion to population size of the
country:
Germany, France, Italy, and the UK: 10
votes
Spain:
8
votes
Belgium, Greece, the Netherlands &
Portugal: 5 votes
Glossary
Austria & Sweden: 4
votes
Ireland, Denmark & Finland:
3
votes
Luxembourg:
2
votes
When a vote is taken, in order to pass a
piece of legislation there must be 62 votes in favour of the potential 87. This
means that the 5 large countries cannot ‘steam-roll’ legislation
through, there must be some agreement from the smaller countries. It also means
that a North-South divide is unfeasible.
It is hoped that QMV will be extended to
Asylum and Immigration policy after the 5 years transitory period.
This was reviewed within the Nice Intergovernmental
Conference (IGC),
in consideration of the Enlargement process and the need for reform of the
EU’s institutions.
Readmission agreements – one element of the Tampere
Conclusions
was co-operation with third countries over readmission (repatriation) of their
nationals on EU territory, and non-nationals who travelled through their
countries to reach the EU. Already back, in 1994 a model for bilateral
agreements between individual states was agreed. At the December 1999 JHA
Council
meeting, the Member States agreed upon a standard clause to be integrated into
all EU bilateral co-operation and partnership agreements. Co-operation includes
provision of new identity papers and travel documents. There are also proposals
being discussed on EC readmission agreements with third countries; these would
constitute agreements dedicated solely to the return of migrants to
‘safe’ countries of origin or transit (see safe third countries). The first agreements are
proposed with Russia, Morocco (mainly immigrants from sub-Saharan Africa), Sri
Lanka and Pakistan (mainly for Afghans).
Refoulement – “No contracting State
shall expel or return (‘refouler’[in French]) a refugee in any
manner whatsoever to the frontiers of territories where his/her life or freedom
would be threatened on account of his/her race, religion, nationality,
membership of a particular social group or political opinion” (Article 33
of Geneva Convention). This is the cornerstone principle of IRC.
Safe
Third Country – ‘Safe
countries’ are those where there is generally no threat of persecution or
refoulement to an individual. The concept is often used to determine whether an
asylum-seeker can be returned to a “third” country of transit
(inside or outside the EU) where refoulement will
not occur. However, there is a danger that states can be declared ‘safe
countries’ and yet they may not be so for certain ‘social groups or
individuals’.
Safe
Country of Origin – refers to states
where it is assumed that there is no threat of persecution, torture, inhumane
or degrading treatment to its nationals or permanent residents.
Schengen
Agreement – signed in 1985 by Germany, France,
the Netherlands, Belgium and Luxembourg. This was followed by the Schengen
Implementation Agreement in 1990. These agreements were signed later by other
Member States (All except United Kingdom and Ireland who have the opportunity
to ‘opt in’ and Denmark has entered the agreement). The Agreement
concerns the removal of
Glossary
border
controls that hinder free movement between the signatory states. It was
originally a non-EU instrument but it is gradually being integrated into the
Treaties. Non-EU states, Norway and Iceland, have expressed interests in being
signatories, the EU is deciding their membership presently. The Schengen system
is likely to remain within the Third Pillar
for the foreseeable future; there is no public access to the database of
information.
Scoreboard
– after a request at the Tampere
Summit, Commissioner Antonio Vitorino (JHA)
published the Commission’s programme of work in the field of JHA over the
next 5 years, in March 2000, last updated in May 2001. This document was
entitled the ‘’Scoreboard to assess progress on the creation of an
area of ‘’freedom, security and justice’’ in the
European Union’’. It includes timetables for Commission proposals
in asylum harmonisation, and the state of play between the institutions in
general terms. The Scoreboard shall be reviewed twice a year.
Separated
Children – Separated children are children
under 18 years of age outside their country of origin and without their parents
or guardians to care for and protect them (SCEP definition).
Single European Act (SEA) – signed in 1986, this treaty
continued the ethos of the Treaty of Rome and bridged the gap between a common
European market and a single European market with real freedom of movement for
goods, capital, services and people. 12 Member States signed the SEA (the
original 6 plus the United Kingdom, Ireland, Spain, Greece, Denmark and
Portugal). The SEA proposed that a single market, and all associated measures,
should be realised by 1992.
“The internal market shall comprise an
area without internal frontiers in which the free movement of goods, persons,
services and capital is ensured in accordance with the provisions of this
Treaty.” (Article 14 (2), TEU II, formerly Article 8a of SEA)
Strategic Committee on Immigration, Frontiers
and Asylum (SCIFA) – a special Committee of the Council of Ministers, SCIFA is the step
below COREPER II in the Council’s decision-making process. All harmonisation
measures concerning asylum, migration and border controls are debated in this
forum. Similar committees exist for judicial co-operation, and JHA matters
remaining within the Third pillar, such as police co-operation (Article 36, TEU
II)
Subsidiarity – a principle enshrined
in the Maastricht Treaty(TEU I), which allows decisions to be made at the most appropriate
level, either the local, regional, national or EU level. This principle is
observed in all EU policy, and it is often used as a reason to keep greater
sovereignty at the national level.
Subsidiary/Complementary forms of
Protection
– these are alternative forms of protection which are granted to people
who do not meet the criteria of the Geneva Convention but are however deemed to be
in need of international protection.
Tampere Summit – Held in October 1999, the
Extraordinary European Council in Tampere, Finland, was dedicated to the
creation of an ‘’area of freedom, security
Glossary
and justice’’ in the EU. The
Conclusions of the Summit were widely welcomed by UNHCR and NGOs. The Member
States reaffirmed their absolute respect of the right to asylum, and the
development of a common asylum system based on a full and inclusive application
of the Geneva Convention (1951). They also called for guarantees on maintaining
access to EU territory for those in need of international protection. The
Member States asked Commissioner Vitorino to draft a ‘Scoreboard’ to assess the progress
of the ‘area of freedom, security and justice’.
Temporary Protection - Temporary Protection has been
proposed to meet emergency refugee mass influxes in many countries. It is an
exceptional interim form of protection, which must give way to a durable
solution. Through its use governments can initially suspend individual
screening (which is both impractical and costly) of people displaced by civil
wars and other forms of generalised violence. (see burden sharing). The Directive on Temporary
Protection was adopted in 20 July 2001.
Treaty of Rome (EEC)– signed in 1957, the treaty
creating a European Economic Community was signed by 6 European Countries (Germany,
France, Italy, the Netherlands, Belgium and Luxembourg). The treaty was
primarily an economic agreement designed to interlock the economies of the
Member States to avoid future war. The treaty established the principle of
freedom of movement for labour and persons. This was later extended and
deepened through the Single European Act.
Vienna Action Plan – published in December 1998, by
the Austrian Presidency, the Vienna Action Plan was an agenda and timetable on
how the Amsterdam Treaty should be implemented in the field of JHA. It has been
partially superseded by the Commission’s Scoreboard as regards the development and
adoption of legislative instruments.
Appendix I
Appendix 1:
Extract of the Commission’s
Scoreboard to review progress on the creation of an area of “Freedom,
security and Justice” in the European union (Com (2001) 278 final, 23 May
– pp.5-12
2. A COMMON EU ASYLUM AND MIGRATION
POLICY
The separate but closely related issues of
asylum and migration call for the development of a common EU policy to include
the following
elements:
2.1. Partnership with countries of
origin
A comprehensive approach to migration will
be developed, addressing political, human rights and development issues in
countries and regions of origin and transit, on the basis of a partnership with
those countries and regions and with a view to promoting co-development.
2.2. A common European asylum system
The aim is to ensure full and inclusive
application of the Geneva Convention, ensuring that nobody is sent back to
persecution, i.e. maintaining the principle of non-refoulement. In the long term, a common asylum procedure and a uniform
status for refugees must be established, to be valid throughout the Union.
Secondary movements by asylum seekers between Member States should be limited.
Agreement will be actively sought on a temporary protection regime for
displaced persons, on the basis of solidarity among Member States.
European Commission, “Scoreboard
to review progress on the creation of an “area of freedom, security and
justice” in the European Union”, March 2000 (COM(2000)167 final), A PDF
version can be found on the Europa website. http://www.europa.eu.int/comm/dgs/justice_home/pdf/com2001-278-en.pdf
Appendix II
Council Resolution of 26 June 1997 on
Unaccompanied Minors who are Nationals of Third Countries (97/C 221/03)
397Y0719(02), Official Journal C 221 , 19/07/1997 p.
0023 - 0027
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in
particular Article K.1 thereof,
Whereas, pursuant to Article K.1 (3) (a), (b) and (c)
of the Treaty, the conditions of entry of, and residence by, nationals of third
countries on the territory of Member States and measures to combat unauthorized
immigration and residence by nationals of third countries on the territory of
Member States constitute matters of common interest;
Whereas Article K.1 (1) of the treaty provides that
asylum policy is to be regarded as a matter of common interest for the Member
States;
Whereas third-country minors sometimes enter and stay
in the territory of Member States without being accompanied by a responsible
person and without obtaining the necessary authorization;
Whereas unaccompanied minors who are nationals of
third countries can be the victims of facilitators, and it is important for
Member States to cooperate in combating such form of facilitating;
Whereas unaccompanied minors who are nationals of
third countries generally are in a vulnerable situation requiring special
safeguards and care;
Whereas recognition of the vulnerable situation of
unaccompanied minors in the territory of Member States justifies the laying
down of common principles for dealing with such situations;
Whereas, in accordance with Article K.2 (1) of the
Treaty, this Resolution is without
prejudice to the international commitments entered into by the Member
States pursuant to the European Convention for the Protection of Human Rights
and Fundamental Freedoms of 4 November 1950;
Whereas this Resolution is without prejudice to the
international commitments entered into by the Member States pursuant to the
United Nations Convention on the Rights of the Child, 1989;
Whereas, pursuant to Article 2 of that Convention,
States Parties shall respect the rights set forth in the Convention without
discrimination;
Whereas, pursuant to Article 3 of that Convention, in
all actions concerning children, the best interests of the child shall be a
primary consideration;
Whereas Article 22 of that Convention aims to protect
and assist minors who seek refugee status or who are regarded as refugees;
Whereas it is of great importance for the Member
States, true to their common humanitarian tradition and in accordance with the
provisions of the Geneva Convention of 28 July 1951 relating to the Status of
Refugees, as amended by the New York Protocol of 31 January 1967, to grant
refugees appropriate protection;
Whereas on 20 June 1995 the Council adopted a
Resolution on minimum guarantees
for asylum procedures (1);
Whereas this Resolution is without prejudice to the
Strasbourg Convention of 28
January 1981 of the Council of Europe for the Protection of Individuals
with regard to Automatic Processing of Personal Data;
Whereas the unauthorized presence in the territory of
Member States of unaccompanied
minors who are not regarded as refugees must be temporary, with Member States
endeavouring to cooperate among themselves and with the third countries of
origin to return the minor to his country of origin or to a third country
prepared to accept him, without jeopardizing his safety, in order to find,
whenever
possible, the persons responsible for the minor, and
to reunite him with such persons;
Whereas the
application of such principles should not interfere with the application of
national laws on public policy, public health or public security,
HEREBY ADOPTS THIS
RESOLUTION:
1.This Resolution
concerns third-country nationals below the age of eighteen, who arrive on the
territory of the Member States unaccompanied by an adult responsible for them
whether by law or custom, and for as long as they are not effectively in the
care of such a person. This Resolution can also be applied to minors who are
nationals of third countries and who are left unaccompanied after they have
entered the territory of the Member States. The persons covered by the previous
two sentences shall be referred to herein as 'unaccompanied minors`.
2. This Resolution
shall not apply to third-country nationals who are members of the family of
nationals of a Member State of the European Union, nor to nationals of a Member
State of the European Free Trade Association party to the Agreement on the
European Economic Area and the members of their family, whatever the latter's
nationality may be, where, pursuant to the treaty establishing the
European community or the
Agreement on the European Economic Area respectively, rights to freedom of
movement are being exercised.
3. The purpose of
this Resolution is to establish guidelines for the treatment for unaccompanied
minors, with regard to matters such as the conditions for their reception, stay
and return and, in the case of asylum seekers, the handling of applicable
procedures.
4. This Resolution
shall be without prejudice to more favourable provisions of national law.
5. The following
guidelines are to be notified to the competent authorities responsible for
matters covered by this Resolution, and such authorities shall take them into
consideration in their action. Implementation of these guidelines is not to be
subject to any form of discrimination.
1. Member States
may, in accordance with their national legislation and practice, refuse
admission at the frontier to unaccompanied minors in particular if they are
without the required documentation and authorizations. However, in case of
unaccompanied minors who apply for asylum, the Resolution on Minimum Guarantees
for Asylum Procedures is applicable, in particular the principles set out in
paragraphs 23 to 25 thereof.
2. In this connection,
Member States should take appropriate measures, in accordance with their
national legislation, to prevent the unauthorized entry of unaccompanied minors
and should cooperate to prevent illegal entry and illegal residence of
unaccompanied minors on their territory.
3. Unaccompanied
minors who, pursuant to national provisions, must remain at the border until a
decision has been taken on their admission to the territory or on their return,
should receive all necessary material support and care to satisfy their basic
needs, such as food, accommodation suitable for their age, sanitary facilities
and medical care.
1. Member States
should endeavour to establish a minor's identity as soon as possible after
arrival, and also the fact that he or she is unaccompanied. Information on the
minor's identity and situation can be obtained by various means, in particular
by means of an appropriate interview, which should be conducted as soon as
possible and in a manner in keeping with his age. The information obtained
should be effectively documented. In requesting, receiving, forwarding and
storing information obtained, particular care and confidentiality should be
exercised, in particular in the case of asylum seekers in order to protect both
the minor and the members of his family. This early information may in
particular enhance the prospects of reunification of the minor with his family
in the country of origin or a third country.
2. Irrespective of
their legal status, unaccompanied minors should be entitled to the necessary
protection and basic care in accordance with the provisions of national law.
3. Member States
should, with a view to reunification, endeavour to trace the members of the
family of an unaccompanied minor as soon as possible, or to identify the place
of residence of the members of the family, regardless of their legal status and
without prejudging the merits of any application for residence. Unaccompanied
minors may also be encouraged and assisted in contacting the International
Committee of the Red Cross, national Red Cross organizations, or other
organizations for the purpose of tracing their family members. Particularly, in
the case of asylum seekers, whenever contracts are made in the context
of tracing family
members, confidentiality should be duly respected in order to protect both the
minor and the members of his family.
4. For the
purposes of applying this Resolution, Member States should provide as soon as
possible for the necessary representation of the minor by:
(a) legal
guardianship, or (b) representation by a (national) organization which is
responsible for the care and well-being of the minor, or (c) other appropriate
representation.
5. Where a
guardian is appointed for an unaccompanied minor, the guardian should ensure,
in accordance with national law, that the minor's needs (for example, legal,
social, medical or psychological) are duly met.
6. When it can be
assumed that an unaccompanied minor of school age will be staying in a Member
State for a prolonged period, the minor should have access to general education
facilities on the same basis as nationals of the host Member State or
alternatively, appropriate special facilities should be offered to him.
7. Unaccompanied
minors should receive appropriate medical treatment to meet immediate needs.
Special medical or other assistance should be provided for minors who have
suffered any form of neglect, exploitation, or abuse, torture or any other form
of cruel, inhuman or degrading treatment or punishment, or armed conflicts.
1. Every
unaccompanied minor should have the right to apply for asylum. However, Member
States may reserve the right to require that a minor under a certain age, to be
determined by the Member State concerned, cannot apply for asylum until he has
the assistance of a legal guardian, a specifically appointed adult
representative or institution.
2. Having regard
to the particular needs of minors and their vulnerable situation, Member States
should treat the processing of asylum applications by unaccompanied minors as a
matter of urgency.
3. (a) In
principle, an unaccompanied asylum-seeker claiming to be a minor must produce
evidence of his age. (b) If such evidence is not available or serious doubt
persists, Member States may carry out an assessment of the age of an
asylum-seeker. Age assessment should be carried out objectively. For such
purposes, Member States may have a medical age-test carried out by qualified
medical personnel, with the consent of the minor, a specially appointed adult
representative or institution.
4. Member States
should normally place unaccompanied minors during the asylum procedure: (a)
with adult relatives, (b) with a
foster-family, (c) in reception centres with special provisions for minors, or
(d) in other accommodation with suitable provisions for minors, for example
such as to enable them to live independently but with appropriate support.
Member States may place unaccompanied minors aged 16 or above in reception
centres for adult asylum seekers.
5. (a) During any
interview on their asylum application, unaccompanied minor asylum-seekers may be accompanied by a
legal guardian, specially appointed adult representative or institution, adult
relative or legal assistant. (b) The interview should be conducted by officers
who have the necessary experience or training. The importance of appropriate
training for officers interviewing unaccompanied minor asylum-seekers should be
duly recognized.
6. When an application
for asylum from an unaccompanied minor is examined, allowance should be made, in addition to objective facts and
circumstances, for a minor's age, maturity and mental development, and for the
fact that he may have limited knowledge of conditions in the country of origin.
7. As soon as an
unaccompanied minor is granted refugee status or any other permanent right of
residence, he should be provided with long-term arrangements for accommodation.
1. Where a minor
is not allowed to prolong his stay in a Member State, the Member State
concerned may only return the minor to his country of origin or a third country
prepared to accept him, if on arrival therein - depending on his needs in the
light of age and degree of independence – adequate reception and care are
available. This can be provided by parents or other adults who take care of the
child, or by governmental or
non-governmental bodies.
2. As long as
return under these conditions is not possible, Member States should in
principle make it possible for the minor to remain in their territory.
3. The competent
authorities of the Member States should, with a view to a minor's return,
cooperate: (a) in re-uniting unaccompanied minors with other members of their
family, either in the minor's country
of origin or in the country where those family members are staying; (b)
with the authorities of the minor's country of origin or with those of another
country, with a view to finding an
appropriate durable solution;
(c) with
international organizations such as UNHCR or UNICEF, which already take an
active part in advising governments on guidelines for dealing with unaccompanied minors, in particular
asylum-seekers; (d) where appropriate, with non-governmental organizations in
order to ascertain the availability of reception and care facilities in the
country to which the minor will be returned.
4. In any case, a
minor may not be returned to a third country where this return would be
contrary to the Convention relating to the status of refugees, the European
Convention on Human Rights and Fundamental Freedoms or the Convention against
Torture and other Cruel, Inhuman or Degrading treatment or Punishment or the
Convention on the Rights of the Child, without prejudice to any reservations
which Member States may have tabled when ratifying it, or the Protocols to
these
Conventions.
1.Member States
should take account of these guidelines in the case of all proposals for
changes to their national legislations. In addition, Member States should
strive to bring their national legislations into line with these guidelines
before 1 January 1999.
2. Member States
shall remain free to allow for more favourable conditions for unaccompanied
minors.
3. The Council, in
conjunction with the Commission and in consultation with UNHCR in the framework
of its competences, shall review the application of the above guidelines once a
year, commencing on 1 January 1999, and if appropriate adapt them to developments
in asylum and migration policy.
(1) OJ No C 274,
18. 9. 1996, p. 13.
ANNEX
MEASURES TO COMBAT TRAFFICKING IN MINORS
Member States, mindful of the particular vulnerability
of minors, should take all measures to prevent and combat the trafficking and
exploitation of minors, and cooperate in this regard.
MEASURES TO PREVENT ILLEGAL ENTRY
Measures which Member States may take to prevent the
unauthorized arrival in the territory of the Member States of unaccompanied
minors who are nationals of third countries may include:
(i) collaboration with competent authorities and
bodies including airline companies in the countries of departure, in particular
through the use of liaison officers;
(ii) observation at airports of arrival of flights
from sensitive countries;
(iii) consequent application of international
obligations including carriers' liability legislation where unaccompanied
minors who are nationals of third countries arrive without the appropriate
documentation.
Appendix III
Recommendations
from Sandy Ruxton “Separated Children Seeking Asylum in Europe : A
Programme of Action”, 2000.
The definition of a ‘‘separated
child”
Recommendation 1: When developing legislation and administrative
regulations,
the EU and European states must recognise the needs
and protect the rights of
all separated children. The inclusive definition of
‘separated children’ as defined
by SCEP should therefore be central to legislation
dealing with asylum-seekers
and refugees, and should also be acknowledged within
child law.
Access to the territory
Recommendation 2: In order to ensure effective protection for
separated children
seeking asylum, greater political will should be
focused on meeting the standards
set out in international law and guidance (especially
the 1951 Refugee Convention, the CRC, and the UNHCR Guidelines), and endorsed
in the SCEP Statement of Good Practice. Any subsequent EU and national level
legislation in relation to access to the territory should reflect these
instruments and the European Council conclusions from the Tampere summit.
Identification
Recommendation 3: In order to ensure that children are given
appropriate protection, the EU and European states should build on the EU 1997
Resolution on
Unaccompanied Minors based on paragraphs 5.1 – 5.3
of the UNHCR Guide-lines
regarding identification.
The appointment of guardian or adviser
Recommendation 4: For children’s ‘‘best
interests” to be adequately protected, there is a clear need for all
children under 18 years old to be assisted by a guardian or adviser at all
stages of the asylum process and in relation to durable solutions. Such
assistance should be in line with the provisions set out in international law
and guidance (principally the CRC and the UNHCR Guidelines) and the SCEP
Statement of Good Practice. In developing common standards on asylum procedure,
the EU should ensure that the safeguards identified in the EU 1997 Resolution
on Unaccompanied Minors are strengthened and incorporated in subsequent EU
legislation.
Recommendation 5: To protect the interests of separated children, such
children should be registered and documented as soon as possible following
entry to the territory. Article 3.1 of the EU 1997 Resolution on Unaccompanied
Minors should be elaborated upon and strengthened, in line with the SCEP
Statement of Good Practice and the UNHCR Guidelines.
Age assessment
Recommendation 6: In any legislation developed by the EU and European
states,
minimum guarantees in relation to the age assessment
of separated children should be integral, based on paragraphs 5.11 of the UNHCR
Guidelines and the SCEP Statement of Good Practice.
Recommendation 7: SCEP believes that the detention of separated
children for reasons relating to their immigration status violates the CRC and
also contravenes
the UNHCR Guidelines. In any legislation which is
subsequently developed at European and national level, a clear statement
preventing the use of detention for all separated children should be included.
The right to participate
Recommendation 8: In order to meet the standards set out in Article 12
of the CRC, states should ensure that separated children are provided with
appropriate opportunities to be heard at all stages of the asylum process. It
is also essential
that states should fulfil their positive duty to
assist children to express their views. The EU and European states should
integrate the standards set out in the CRC and the UNHCR Guidelines into any
relevant asylum legislation.
Family tracing and contact
Recommendation 9: Despite the real obstacles which exist, the
emotional and psychological importance to the child of maintaining and
developing contact with
family and relatives, and of preserving cultural links
with the country of origin, is undeniable. It is therefore vital that the EU
should develop legislation which upholds the key principles established in the
CRC, and reinforced in the ECHR, the EU 1997 Resolution on Unaccompanied
Minors, and the UNHCR Guidelines.
Family reunification in a European country
Recommendation 10: In order that the ‘‘best
interests” of the child are met, states
should ensure that separated children seeking asylum
within one EU country who have family relatives in another EU country should
receive appropriate assistance so that family reunification can take place as
soon as possible. Separated children’s access to reunification procedures
should be premised upon the fact that they are children rather than upon their
status in the asylum procedure. The existing Dublin Convention provisions fail
to meet the needs of separated children and their families adequately. Future
EU legislation (e.g. Directives on Temporary Protection and Asylum Procedure)
should provide for the right of separated children to be reunited with their families.
The asylum or refugee determination process
Access to normal procedures
Recommendation 11: Separated children are to have access to normal
asylum procedures containing appropriate provisions and safeguards, in line
with the UNHCR Guidelines, ECRE’s Position on Refugee Children, and the
SCEP Statement of Good Practice.
Legal representation
Recommendation 12: The provision of appropriate legal representation is
essential
if separated children are to receive a fair hearing in
asylum procedures. This principle
is reiterated in the UNHCR Guidelines and expanded upon in the SCEP Statement
of Good Practice, and should be integral to any EU and national
legislation on asylum procedure which is developed.
Minimum procedural guarantees
Recommendation 13: The evidence suggests that there are minimum
guarantees
for separated children in European states. There is,
however, considerable variation
in practice, both between and within countries even in
those where official policy exists. If asylum claims by separated children are
to be processed efficiently and fairly, it is essential that any legislation on
asylum procedures should ensure that the minimum guarantees within it are
sufficiently rigorous and that they are met in practice, in line with the UNHCR
Guidelines.
Independent assessment
Recommendation 14: In any legislation on asylum procedures which is
developed
by the EU or European states, reference should be made
to the possibility of undertaking expert assessments on the child’s
ability to articulate fear of persecution.
Recommendation 15: The evidence suggests that in many states conformity
with
the principles set out in the UNHCR Guidelines (and
the SCEP Statement of Good Practice) is not ensured. Official guidance is
generally lacking, and many children can be subject to hostile questioning in
an alien environment. Several governments admit that currently the training for
those interviewing children is either not available or not extensive enough.
And it is also relatively common for a child to attend an interview alone,
without adult support. Measures should be taken by governments to ensure that
officials who interview separated children are adequately trained; and that
interviews are undertaken in a child-friendly manner.
Criteria for making a decision on a child’s
asylum application
Recommendation 16: The evidence suggests that, in general, there is a
lack of clear policies on the factors which should be taken into account in
determining separated children’s cases despite the existence of developed
UNHCR Guidelines.
In practice, this gap means that officials may make
decisions in a policy vacuum, leading to wide variations in treatment based on
criteria which can be subjective and unfair. When determining refugee status,
governments should make sure that child-specific forms of human rights
violations are taken into consideration as well as the fact that children might
have different ways of communicating fear of persecution and different
knowledge regarding their claims than adults.
Young people who become adults during the asylum
process
Recommendation 17: There is wide variation in approaches between states
to separated children who become adults during the asylum process. Significant
unfairness can result, especially when ‘‘ageing out” occurs
as a result of delays which have not been caused by the children themselves. In
this context, it is important that the EU and European states should seek to
establish fair procedures in this regard.
Durable or long-term solutions
Grounds for a child remaining in a host country
Recommendation 18: Generally speaking, European states do allow
separated children to remain in the ‘‘host country” in line
with the criteria set out in the SCEP Statement of Good Practice. However, to
meet fully the needs and rights of separated children, key safeguards such as
providing a status which gives them access to assistance and family
reunification, must be implemented in all states,
in line with the CRC principle of the
‘‘best interests of the child” and the UNHCR
Guidelines.
Recommendation 19: The evidence presented by the assessments indicates
that
practice is far from meeting the standards set out in
the CRC in relation to family reunification in the ‘‘host
country”. Efforts should be made to change policy and practice to allow
for family reunification in the ‘‘host country” for all
categories of separated children.
Integration
Recommendation 20: Although a number of good practices are in place,
existing
evidence suggests that significant improvements are
required if the standards of the CRC, the EU 1997 Resolution on Unaccompanied
Minors, and other relevant international instruments, are to be met. All
separated children should gain access to appropriate services on a
non-discriminatory basis and facilities and programmes should be designed to
meet their special needs.
Adoption
Recommendation 21: Adoption is rarely a suitable option for a separated
child. It
is essential that prior to adoption being considered
as a viable option for a separated child, there is a rigorous assessment of the
family circumstances in the country of origin. The separated child’s
parents often still live in the country of origin, or sometimes they are
missing but not officially reported dead.
Family reunification and return to the country of
origin
Return
Recommendation 22: There is a need for formal schemes or programmes of
return
to be developed in European states. Guidelines and
procedures should be in place in order to assess if return would be in the best
interest of the child. Such guidelines and procedures should be drawn up in
collaboration with agencies with specific child and country knowledge, and
according to the UNHCR Guidelines.
Conditions that must be fulfilled prior to return
Recommendation 23: Experience in European states suggests that greater
attention and effort must be devoted to ensuring that the conditions and
safeguards set out in the UNHCR Guidelines and the SCEP Statement of Good
Practice are implemented. Guidelines should be developed at national level
specifying which steps to be taken before a separated child is returned
including verification that care will be provided for and basic needs will be
met.
Recommendation 24: Programmes to assist the reintegration of returned
children
should be initiated and supported.
Settlement in a third country
Recommendation 25: In general it appears that guidelines and procedures
are not
in place in European states to assess if settlement in
a third country would be in the
best interest of the child and to ensure that the
decision is reached in accordance with appropriate safeguards. Procedures
should be put in place in all European states in order to allow for the
transfer of a separated child to a third country if the child has a family member
in that country who is willing and able to care for him or her.
Appendix V
References
Literature
Danish Refugee Council report (May 2000), “Legal and
Social Conditions for Asylum Seekers and Refugees in Western European
Countries”.
Ruxton, Sandy (2000) Separated Children
Seeking Asylum in Europe : A Programme of Action.
SCEP (2000)
Separated Children in Europe Programme Statement of Good Practice, SCEP.
UNHCR (1997), “Guidelines on
Policies and Procedures in dealing with Unaccompanied Children Seeking
Asylum”.
UNHCR (July 2000), ‘Reception Standards for
Asylum-Seekers in the European Union’.
UNCRC (1989), Convention on the Rights of
the Child.
European Convention on Human Rights, 1950.
Statistics of the Inter-governmental Consultations for Asylum, Refugees
and Migration Policies in Europe, North America and Australia, ‘IGC
Report on Readmission Agreements’, August 1999, pp.5
Treaties and Agreements
Maastricht Treaty, http://europa.eu.int/en/record/mt/top.html
Amsterdam Treaty, http://europa.eu.int/abc/obj/amst/en/
Tampere
Summit of the European Council, http://europa.eu.int/council/off/conclu/oct99/
Nice Treaty, http://europa.eu.int/comm/nice_treaty/index_en.htm
Cotonu Agreement, http://europa.eu.int/comm/development/cotonou/agreement_en.htm
European Commission
All harmonisation instruments can be found
on www.europa.eu.int
European Commission switchboard: +32 2 299
11 11
Web sites:
Separated Children in Europe Programme: www.sce.gla.ac.uk
European Union: http://europa.eu.int/index_en.htm
European Parliament: http://www.europarl.eu.int/
Council of Europe, Legal Affairs: http://conventions.coe.int/
Official Journal of the European
Communities : http://europa.eu.int/eur-lex/en/oj/index.html
Odysseus
programme: http://europa.eu.int/comm/justice_home/project/odysseus/index_en.htm
UNHCR:
www.unhcr.ch
[1] However, this will require a separate Council decision based on unanimity due to be taken in 2004.
[2] Afghanistan, Albania (and Kosovo), Morocco, Somalia, Sri Lanka and Iraq.
[3] Conclusion 13 of the Tampere Summit, October 1999
[4] This will be assessed at the Nice Summit (December 2000).
[5] Conclusion 11, Tampere Summit of the European Council (October 1999).
[6] Now known as the Cotonu Agreement, signed in June 2000
[7] European Commission, “Scoreboard to review progress on the creation of an “area of freedom, security and justice” in the European Union”, March 2000 (COM(2000)167 final)
[8] COM (2000) 755 final of 22 November
[9] “Proposal for a Council Decision creating a European Refugee Fund”, COM (1999) 686 (see sources of information)
[10] Council Decision 2000/596/EC of 28 September, OJEC
L 252 , 06/10/2000 p. 0012 200
[11] COM (1999) 260 (see sources of information)
[12] Council Regulation 2725/2000/EC of 11 December, OJEC L 31615, p.1
[13] For a country by country analysis, see the Danish Refugee Council (as part of the Odysseus Programme) report, “Legal and Social Conditions for Asylum Seekers and Refugees in Western European Countries”, May 2000.
[14] Official Journal, C 262, 07/10/1995, pp. 0001-0003 (see sources of information)
[15] These were: former POWs whose safety could not be ensured in the area; people in need of serious medical assistance; people whose protection could not be ensured; rape victims; people formerly living in combat zones who could not return to their homes due to human rights abuses or conflict.
[16] Official Journal, L 063, 13/03/1996, pp.0010-0011 (see sources of information)
[17] COM (2000) 303 final of 24 May
[18] Council
Directive 2001/55/EC of 20 July
[19] For a country by country analysis of asylum procedures, see the Danish Refugee Council (as part of the Odysseus Programme) report, “Legal and Social Conditions for Asylum Seekers and Refugees in Western European Countries”, May 2000.
[20] Available as COM (94)23 final, 23 February 1994 (see sources of information)
[21] Available from Official Journal C274 on 19.09.1996, pp.13 (see sources of information)
[22] Available from Official Journal C221 on 19.07.1997, pp.23 (see sources of information)
[23] See Review of the application of Council resolution of 26 June 1997 on Unaccompanied Minors who are nationals of third countries, OJ C221, 19.07.97, p. 23
[24] ibid.
[25] SEC (1999)271 final (see sources of information)
[26] COM(2000)578 final of 20 September
[27] Available on the EP’s website, the Schmitt report (A5-0123/2000) (see sources of information)
[28] Separated Children in Europe Programme, “Statement of Good Practice”, December 1999
[29] UNHCR, ‘Reception Standards for Asylum-Seekers in the European Union’, July 2000. Available on website: www.unhcr.ch
[30] For a country by country
analysis of reception facilities and conditions, see the Danish Refugee Council
(as part of the Odysseus Programme) report, “Legal and Social
Conditions for Asylum Seekers and Refugees in Western European
Countries”, May 2000.
[31] COM(2001) 181 final of 3 April
[32] Official Journal, C 254, 19/08/1997 (see sources of information)
[33] SEC (2000) 522, 21 March 2000 (see sources of information)
[34] COM(2001) 182
[35] Ruxton, “Separated Children Seeking Asylum in Europe: A programme for Action”,2000
[36] Joint Position of 4 March 1996, OJEC L 63, 13 March 1996
[37] For examples see the EP Working Paper, “Asylum in the EU Member States” EP Research DG (LIBE 108). (See sources of information)
[38] The EP Rapporteur was Michèle Lindeperg, “Report on the harmonisation of forms of protection complementing refugee status in the European Union”, adopted 26 November 1998 (A4-0450/98) (See sources of information)
[39] COM(2001)510 of 12 September
[40] UNHCR, “Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum”, paragraphs 8.6, 8.7, 8.8, 8.10; 1997
[41] Articles 9 & 10 of the UN Convention on the Rights of the Child (1989)
[42] European Convention on Human Rights 1950
[43] Through the judgements of the European Court of Human Rights (Council of Europe) on Article 8 (The right to family life) of the European Convention on Human Rights and Fundamental Freedoms (1950)
[44] Depending upon legal status and category of the non-EU citizen
[45] Resolution on the harmonisation of national policies on family reunification (SN 282/1/93)
[46] on 1 December 1999 (COM (1999) 638 final)
[47] COM(2000)624, OJEC C062 of 27 February 2001
[48] Available from the EP website: www.europarl.eu.int originally as the Klamt Report (1999/0258 Provisional), the revised report by Graham Watson (A5-0201/2000)
[49] Articles 9(3) and 10, Convention on the Rights of the Child, 1989.
[50] Statistics of the Inter-governmental Consultations for Asylum, Refugees and Migration Policies in Europe, North America and Australia, ‘IGC Report on Readmission Agreements’, August 1999, pp.5
[51] Official Journal, C274, 19/09/1996, pp. 0020-0024 (see sources of information)
[52] Official Journal, C274, 19/09/1996, pp.0025-0033 (see sources of information)
[53] The Budapest Group is made up of 34 European states, it was established in 1993 and focuses on readmission, trafficking and illegal migration between the participatory states.
[54] IGC has 12 European members (Austria, Belgium, Denmark, Finland, Germany, Ireland, Italy, Netherlands, Norway, Spain, Switzerland and the UK); it was established in 1985. It focuses on trafficking and information exchanges between the states.
[55] The Commission’s working document entitled ‘Towards common standards on asylum procedures’[55] addressed the issue of ‘safe third countries’, and the definition used by Member States. The Commission asked whether a provision should be attached to the use of the title, which would ensure that asylum-seekers returned to a third country would have adequate access to asylum procedures and reception facilities.
[56] Official Journal, C353, 07/12/1999, pp. 6-9 (see sources of information)
[57] Karamanou report, A5-0110/2000, May 2000
[58] Recommendation 25, Ruxton, “Separated Children Seeking Asylum in Europe: A Programme for Action”, 2000 and Statement of Good Practice, SCEP 2000
[59] Paragraphs 9.2-9.7 in: UNHCR, “Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum”, February 1997