Round Table on Carriers’ Liability Related to Illegal Immigration

Brussels, 30 November 2001

Opening statement by Jean-Francois Durieux,

Deputy Director, Bureau for Europe, UNHCR

At the Tampere special meeting two years ago, the European Council called for the development of common European Union policies on the issues, which it recognised as separate but closely inter-related, of asylum and immigration. The European Council considered it essential that such policies be based on principles which “offer guarantees to those who seek protection in or access to the European Union”.

Given its mandate to provide international protection to refugees world-wide, the Office of the United Nations High Commissioner for Refugees (UNHCR) is obviously interested in preserving and enhancing the quality of asylum within the European Union. We are, however, increasingly concerned about restrictions on access to the territory of the Union. The best asylum procedures in the world are of little help to refugees if they can only be accessed by a lucky few.

While States have a legitimate interest in controlling irregular migration, they act inconsistently with their international obligations towards refugees when measures, such as carrier sanctions, make it impossible for refugees to access a safe asylum. Carrier sanctions pose a threat to basic principles of refugee protection, to the operation of asylum procedures, to procedural guarantees of due process, and to international co-operation in resolving refugee problems with full respect for the human rights of the individuals involved.

UNHCR recognises that carrier sanctions do not target persons in need of international protection. It is, indeed, their indiscriminate character that is worrisome. The ability to identify and distinguish persons in need of protection from other migrants is a pivotal piece of any asylum system. This critical task is also a complex one, requiring special skills and a conducive environment. It simply cannot be performed adequately by carrier personnel at embarkation points. Aside from practical and technical difficulties, there is also an important point of principle to be made in this respect. Responsibility for determining refugee status lies with States parties to the 1951 Convention and 1967 Protocol, and in the current state of international law such responsibility cannot be delegated, much less “privatised”. Carrier personnel may, through a rigourous procedural check of passenger documentation, find themselves de facto accomplices to refoulement or to a violation of asylum seekers’ right to leave a country where they fear persecution. In the final analysis, however, accountability for such unfortunate outcomes lies squarely with the State of intended destination.

Governments, in the European Union and elsewhere, are not insensitive to this argument, nor are they unaware of their international obligations. This is why several of them have introduced broad savings clauses in their carriers’ liability legislation. The June 2001 Directive contains such a savings clause, as did the so-called Schengen Convention – to the effect that the implementation of these instruments shall be without prejudice to Member States’ obligations resulting from the 1951 Convention and 1967 Protocol. I trust that the discussion this afternoon will enable us to reach a better understanding of the practical limitations of such clauses.

Concern for the protection needs of individuals at risk has also manifested itself through the introduction of criteria under which carriers may or shall be exempted from fines and/or other penalties. As early as in 1992, UNHCR urged States to enforce such sanctions only in the event that carriers demonstrate negligence in checking documents, and to provide for waivers in those cases in which the undocumented aliens have left their country due to a well-founded fear of persecution. This standard is consistent with the flexibility – expressly given to States in the 1951 Convention – to admit persons, even in the absence of proper documentation, for humanitarian reasons. In practice, however, it may well lead us to a dead-end: carrier personnel have no means of knowing (nor, in our view, should they inquire) whether the improperly documented passenger is leaving his/her country owing to a well-founded fear of persecution, or for any other reason. A waiver of sanctions in the event that, upon arrival in his/her country of destination, the improperly documented passenger enters an asylum claim, offers a better guarantee to the individual who has a genuine fear of persecution or other threats to his/her life or freedom.

The designation of passengers as inadmissible does not always occur in the country where persecution is feared. Documentation checks may also result in stopping the movement of an asylum-seeker in an intermediate country. This situation may be tantamount to interception – a concept which is gaining currency in international refugee law, not least through discussion in UNHCR’s Standing Committee and within the context of UNHCR’s Global Consultations on International Protection. It must be noted, however, that the working definition of interception, proposed by UNHCR in those for a, covers measures applied by a State outside its territory – hence, presumably, by State agents. UNHCR has underlined the importance of proper procedures and mechanisms to identify intercepted persons who are in need of international protection. These mechanisms include screening by the intercepting State or the State which has requested interception, followed by referral to the competent authorities in the country where interception took place and/or to UNHCR or another suitable agency. Obviously, a true protection alternative must exist in the country where interception is taking place, or through resettlement to another country, which may be the country of original intended destination. Otherwise, interception may carry a risk of refoulement and undermine key principles of international protection.

Time constraints do not allow me to dwell, in this opening statement, on important related issues, including migrants’ smuggling, stowaway asylum-seekers, etc., on which UNHCR has also issued legal and policy positions. I and my colleagues stand ready to inject these positions into our discussions today.

As a final remark, though, I wish to emphasise that UNHCR has no intention of downplaying the problems posed by inadequate documentation of asylum-seekers. Incidences of inadequate or false documentation, a fortiori the wilful destruction of identity and travel documents, complicate the asylum process and the task of determining refugee status. The identity of applicants may be difficult, if not impossible, to establish; it may be unclear whether some other State has in fact accorded residence or protection; and removal of those who have effective protection elsewhere, as well as of non-refugees, may be frustrated. Nevertheless, it is an inappropriate response to such problems to react with measures which do not satisfy basic principles of international protection. These problems are better addressed within proceedings that guarantee due process, and they do not in themselves justify either refusal to admit or summary exclusion.