ON REFUGEES AND EXILES
SUR LES REFUGIES
ET LES EXILES
Observations of the European Council on Refugees and Exiles on the European Commissions draft directive on temporary protection and responsibility sharing .
The European Council on Refugees and Exiles is a network of some 70 refugee assisting non-governmental organisations in 25 European countries. We welcome the opportunity to comment on this initiative of the European Commission in the area of temporary protection and responsibility sharing.
Summary of views
In many respects, the draft directive is a welcome set of proposals. Many of the proposals reflect an acceptable set of minima. We refer in particular to the following:
…Temporary protection is time-limited, with an upper period of 2 years.
…A decision to introduce a temporary protection regime shall be based on a Council decision with qualified majority voting.
…The rights attached to temporary protection reflect a reasonable standard and meet basic human rights requirements. This is valid in particular with regard to the provision of adequate documentation and information, access to the labour market, family reunification, the right to suitable accommodation and social welfare, and access to the general education system.
…Furthermore, we welcome provisions for especially vulnerable groups of persons, such as unaccompanied minors and persons who have undergone serious forms of psychological, physical or sexual violence.
…The EU regime for temporary protection will not be triggered by a refugee influx into a non-EU State.
…The granting of temporary protection does not preclude the right of beneficiaries to claim asylum.
…The directive introduces a scheme of responsibility sharing among EU Member States.
However, there are areas of ongoing concern, and we feel that the directive could benefit from some amendments as proposed below. This concerns in particular the following points:
…The draft directive does not contain any general provision on procedures. This is particularly worrying with regard to the lack of a general remedies clause and of sufficient procedural safeguards for the decision to exclude a person from temporary protection.
…We are concerned that the draft directive does not do enough to enhance admission to the territory of protection.
…The right to non-refoulement should be expressly stated in the draft directive.
…The draft directive contains no provisions on freedom of movement for beneficiaries of temporary protection either within a Member State or between Member States of the EU.
…The draft directive does not seem to allow explicitly for the reunification of a separated child either with its parents who still find themselves outside the EU, or with any other family members who are in other EU Member States.
…We object to the reference to the Dublin Convention (or to a prospective Community instrument for the same purposes), as we hold that its application, once temporary protection has been granted, would be both inhumane and impractical.
…The draft directive allows Member States to withdraw temporary protection if a beneficiary files an asylum application during his/her stay. This could act as a deterrent to apply for asylum.
The European Commission has presented a proposal to the Council on temporary protection and responsibility sharing in situations of mass influx of refugees. As the Commissions Explanatory Memorandum (EM) states, this is the third time that the Commission has presented a proposal of this nature, although it is the first time that it has done so using the European Unions new competence in the field of asylum under the EC Treaty, as amended by the Treaty of Amsterdam. ECRE has commented on the first Commission proposal and has set out its positions in greater detail in two position papers.
ECREs position on temporary protection is that it represents a reasonable administrative policy only in an emergency situation where individual refugee status determination is not immediately practicable and where its application will enhance admission to the territory. ECRE therefore welcomes the Commissions emphasis that temporary protection is an exceptional measure only.
ECRE completely agrees with the Commissions view, at para. 2.2 of the EM, that prima facie group determination of refugee status is a response available to EU Member States under the Refugee Convention. We hope that the existence of a temporary protection regime across the EU will not discourage group determination of refugee status. We, therefore, welcome the Commissions recognition, at para. 2.3 of the EM that there is a real risk that temporary protection can be used by Member States to circumvent the Convention and the EU must ensure that this does not happen.
ECRE is concerned that the draft directive does not address some issues we believe to be of importance, as outlined in the following paragraphs and also under the comment to Articles 8-15 (Chapter III).
The draft directive does not contain any general provision for procedures, and in particular no reference to a right to appeal against the denial of temporary protection. The only provisions for remedies are against a decision to exclude from temporary protection under draft Article 29 and against a decision not to grant family reunification under draft Article 16(3). ECRE is deeply concerned by the protection implications the lack of a legal remedy throws up and by the inconsistency with human rights law in general.
People who for whatever reason are denied temporary protection and who believe that such a denial is not justified must be able to challenge this decision. Arguably, many of the beneficiaries of a temporary protection scheme would have claims under Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) if they were returned to their country of origin, and Article 13 of the ECHR provides that such persons must be afforded accessible and effective remedies in respect of any arguable breach. ECRE therefore believes that the lack of a legal remedy would be in contravention of fundamental principles of international human rights law.
In ECREs view, a remedies clause should include a right to appeal against the failure to provide temporary protection, the failure to recognise family reunion rights and the failure to issue a recognised individual with the documentation necessary to access social security and other welfare benefits within a reasonable period of time. To be real and effective, any legal remedy should provide for recourse to an independent judicial body.
We would argue that the draft directive should contain a broad anti-discrimination clause, along the lines of Article 14 and Protocol 12 of the ECHR. We do not feel that the somewhat weaker reference to non-discrimination at para. 17 of the Preamble is sufficient or that the limitation of draft Article 15 to draft Articles 8-14 is sufficient.
Alleviation of non-entrée measures
As stated in the introduction, ECREs position is that a temporary protection regime should enhance admission to the territory of protection. However, only draft Article 8(3) foresees a reduction of formalities in the processing of visa applications which applies to persons in the target group already admitted to the territory. This draft article therefore seems to address merely the process whereby a refugee is evacuated from a region outside the EU (either from the country of origin or from another country of first asylum) into a Member State for the purposes of temporary protection. It does not, however, deal with people arriving outside such a programme. ECRE is worried that neither Article 5 nor any of the other parts of the directive refer to any essential measures consequential to the declaration of a temporary protection regime of benefit for this latter group, such as the lifting of, e.g., carriers sanctions, airline liaison office functions or penalties on account of illegal entry or presence, which would facilitate the admission of refugees seeking protection.
Neither does the draft directive prevent the imposition of non-entrée measures to a region from where there are large refugee outflows. As a minimum, we propose that the imposition of new barriers to protection should be prohibited.
Comments on articles
Article 1, with Article 2(a), (c), (d), (e), (f), (g), (h):
The draft directive speaks of "displaced persons from third countries". ECRE recognises that an exodus of refugees from one of the EU Member States is a highly unlikely event, but it is not impossible. ECRE would suggest that the Commission include a clarification in its explanatory memorandum in the sense that the right of nationals of EU member states to seek protection in accordance with the international instruments for the protection of refugees and for the protection of human rights shall not be impaired by any provision of the Directive.
ECRE agrees with the Commissions commentary on this draft article that precise quantification of a "mass influx" is impossible. However, we are concerned that draft Article 2(d) does not import the element of "suddenness" into the definition of mass influx and that its scope may be extended to the gradual arrival of large numbers of people. It should be clear from the text of the directive that the decisive factor is the incapacity of the national asylum procedure to deal with a large number of refugees who have arrived suddenly in a country. We propose to amend the following words in the text of the directive: "[M]ass influx means the sudden arrival in the Community of a large number of displaced persons "
ECRE welcomes the fact that the provision of a temporary protection regime is to be restricted to cases of an actual physical mass influx into an EU Member State. We do believe that such a regime should not apply where there is a mass influx into a region outside the EU. However, from the present wording of the draft article and the EM, it does not seem to be entirely clear whether the mass influx foreseen by the directive would have to be spontaneous or if it could also be triggered and, in fact, realised by the Community itself, as has been the case with the Humanitarian Evacuation Programme (HEP) designed to relieve the FYR of Macedonia of some of the burden of protecting Kosovar refugees. ECRE recommends some clarification to this end in the Commission's explanatory memorandum.
ECRE welcomes the reference to the European Convention on Human Rights and Fundamental Freedoms in the draft directive. However, we would point out that other human rights instruments are also of relevance in this context. We therefore propose to widen the reference to include the 1948 Universal Declaration of Human Rights, the 1966 International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, the 1989 Convention on the Rights of the Child and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
ECRE strongly supports the proposed involvement of UNHCR in any regime of temporary protection. We believe that UNHCR's expertise is crucial at all stages of the decision-making processes. In particular, we are of the opinion that UNHCR should play a central role in indicating the viability of safe and dignified return, and in co-ordinating its orderly implementation. Its Handbook on Voluntary Repatriation should set the guiding standards in this respect.
ECRE assumes that the draft article's reference to consultations with "other organisations concerned" includes consultations with the relevant non-governmental organisations, working on behalf of refugees and displaced persons both within the county of origin and within EU Member States.
ECRE welcomes the fact that temporary protection is time-limited, with an upper limit of two years. This is in line with ECREs recommendations on temporary protection and reflects the need of refugees to feel secure. Moreover, the proposed time limit is sufficient to deal with the consequences of a sudden large-scale arrival, relieving Member States' asylum determination procedures of the strain of a sudden and unexpectedly high number of applications.
ECRE welcomes the references to qualified majority voting (QMV) in the draft directive and we agree with the Commissions comments at para. 5.5 of the EM as to the need for QMV. ECRE believes that the need for effective Community action in formulating an emergency response to a refugee protection crisis dictates a simplified decision-making mechanism.
Since a Council decision about a mass influx can only be declaratory rather than constitutive, ECRE would propose that the word "established" be changed to "declared".
Articles 8 15 (Chapter III): General Remarks
ECRE welcomes the inclusion of the provisions in chapter III whereby persons under temporary protection are to enjoy virtually the same rights as refugees under the Geneva Convention in terms of employment (Article 10), education (Article 12) and family reunion (Article 13). We believe these provisions to be legally required, as many persons granted temporary protection may actually be refugees under the 1951 Refugee Convention and thereby entitled to the full enjoyment of the minimum guarantees contained in Articles 3 - 34 of that Convention. As many European states grant more extensive rights to refugees than those minimum guarantees, ECRE believes that a common European asylum system should reflect existing best practice also with regard to persons under temporary forms of protection.
However, ECRE is concerned by the non-inclusion of provisions referring to the duty of non-refoulement and the right to freedom of movement, and we believe the draft would benefit from the amendments as suggested in the following comments.
The duty of non-refoulement
Chapter III does not refer to the most basic obligation of Member States towards refugees, which is the duty of non-refoulement. This obligation should be expressly stated in the directive. In order to cover all persons entitled to and in need of this form of protection, the amendment should cover not only the contents of Article 33 of the Geneva Convention, but also of Article 3 of the European Convention of Human Rights and the UN Convention against Torture, respectively. ECRE suggests including a right as follows:
(1) No Member State shall expel or return (refouler) a person falling within the scope of the Decision established pursuant to Article 5, or any national extension of the scope of that Decision pursuant to Article 7, or any national scheme established pursuant to Article 3(5), or a family member of such a person, in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion, or where he or she faces a real risk of torture or inhuman or degrading treatment.
(2) No Member State shall expel or return (refouler) a person referred to in paragraph 1 to a third state which might effect an expulsion or return as prohibited in paragraph 1.
Freedom of movement
The draft directive contains no provisions on freedom of movement for beneficiaries of temporary protection either within a Member State or between Member States of the EU.
In respect of freedom of movement within a state, this falls below what is demanded by the Refugee Convention. ECRE's position is that States should fully guarantee the right to freedom of movement within the host country to persons under temporary protection and their families and urges the Commission to include a provision to this end.
On the issue of freedom of movement within the EU, the draft directive falls below the pledge made by the Tampere European Council. ECRE believes that refugees and others in need of international protection should be allowed freedom of movement within the Union in parity with EU nationals and that measures should be taken by Member States to facilitate freedom of movement. It appears from para. 5.6 of the EM that there are two reasons put forward for not guaranteeing freedom of movement:
Firstly, the Commission takes the view that existing rules governing the taking back of persons holding residence permits in one Member State and residing unlawfully in another Member State must be applicable. However, this does not adequately explain why there is no provision on freedom of movement at all in the proposal. One of the objectives of migration policy identified by the Tampere European Council was that concrete steps should be taken to improve the situation of legally resident third country nationals and their families. The opportunity to further this objective with respect to the freedom of movement of residents under temporary protection has not been seized in this draft directive.
Secondly, the Commission asserted that it was to present proposals for measures concerning free movement of third country nationals in the Member States and the conditions governing them in due course. Given the apparent reluctance of Member States to include refugees and persons under other forms of international protection within the scope of legislation based on Articles 62(2,3) and 63(3,4) of the EC Treaty, ECRE is worried that this reasoning might simply evade addressing this issue.
In view of these considerations, we would urge the Commission to include a provision providing for free movement for persons under temporary protection, in accordance with the Presidency Conclusions of the Tampere European Council.
ECRE would argue that the draft directive should set a time limit for the issue of residence permits. Present Member State practice concerning the issue of residence permits is sometimes drawn out, leaving people who have been granted protection in a limbo and unable to access the rights afforded to them. ECRE proposes to include the words "as soon as possible" at the end of the last sentence of Article 8(1).
ECRE welcomes this draft provision. We would hope that such documents will include details of the rights and obligations of the Member States towards people granted temporary protection so that they are aware of, and know how to access, the rights provided.
ECRE commends the Commission on the inclusion of this article. In this respect, the EM reflects wholly ECRE's position in stating: "[A]ccess to employment encourages independence and enables those concerned to provide for themselves and no longer require assistance. It could also prove useful in reintegrating persons enjoying temporary protection on their return to their country of origin."
ECRE welcomes the inclusion of this draft article. The provision of adequate housing is, in our opinion, not only a benefit at the discretion of a receiving host state, but follows also from fundamental human rights law, in particular from Art. 11 of the International Covenant on Economic, Social and Cultural Rights which guarantees the right to an adequate standard of living, including housing. The current draft deals with that international obligation in a satisfactory way.
ECRE believes that the possible limitation on health services allowed for by the final sentence of draft Article 11(2) should be deleted. Draft Article 11(2) is narrower in scope than the Council of Europe Committee of Ministers Recommendation and EXCOM Conclusion No. 22. According to the definition of the World Health Organisation (WHO), health is "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity." People's quality of life and capacity for personal development depend on their physical and mental well-being. Refugees especially can suffer from a range of health problems relating to their experiences of political persecution, torture and imprisonment and the conditions of flight from their country of origin. Their state of health can also be affected by multiple deprivation experiences, prolonged separation from family members, difficulties with cultural adaptation and lack of perspective of one's future. These needs are best addressed by the obligatory provision of at least basic health care. This is valid notwithstanding the special provision in draft Article 11(4) which we warmly welcome.
ECRE supports the access to the education system for minors and adults as foreseen in the draft directive. In our view, draft Article 12 meets the requirements stemming from human rights provisions, especially the Convention on the Rights of the Child, as well as the necessity to prepare persons under temporary protection both for their return to their country of origin and for their integration in the host country.
Article 13, 14: General remark
In general, ECRE welcomes the provisions on family reunification as included in the draft directive. However, it does not seem clear to us whether draft Articles 13 and 14 in fact facilitate reunification between unaccompanied minors admitted under a temporary protection regime specifically a) with their parents who still find themselves outside the EU and b) with other family members who might already be present on the territory of the EU and willing to act as a guardian for the child, but are not included in the scope of draft Article 13(1). ECRE urges the Commission to clarify the text of the directive to clearly provide for these groups, as their exclusion cannot be justified by any reasonable argument and would likely be in the best interest of the child as required by international law.
ECRE welcomes the reference to separated children needing temporary protection. With respect to guardianship, ECRE believes that the reference to "any other appropriate representation" should be dropped. In order for the best interests of a child to be realised it is essential that s/he should be assisted by a properly qualified guardian. Guardians should be appointed as soon as possible (and certainly not later than one month after the arrival of the child); co-ordination between guardians and staff in other relevant agencies should be ensured; training and guidance materials should be developed and accessible information about the guardianship system should be available to the child on arrival .
ECRE welcomes the inclusion of the right to access the Member State's asylum determination procedure (draft Article 16), at least before the possibility of removal arises. It is absolutely essential to have such a provision if the result stated at para. 1.4 of the EM the use of temporary protection as a tool in the service of the full operation of the Geneva Convention - is to be achieved. Given that one of the twin elements of the rationale for a temporary protection regime is that the normal status determination procedures would otherwise not cope, it seems appropriate that, once immediate temporary protection has been provided, the normal status determination procedure should begin to deal steadily with applications as soon as possible. To suspend determination of applications until the end of the two-year period would defeat the purpose of temporary protection. We would welcome a comment to this effect in the explanatory memorandum. See also comments on Article 18(1).
There are both practical and humanitarian reasons why the Dublin Convention or subsequent EU legislation determining state responsibility should not apply in the situation of a declaration of TP. The practical impediments relate to the assessment of evidence after possibly two years, the applicability of time limits under the Dublin Convention, and the financial and human resources which would need to be engaged in determining state responsibility and transfer of persons. Assuming that one Member State receives a mass influx of refugees and that these refugees are then transferred, on the basis of a double voluntary action, to other Member States for the purposes of temporary protection, it also makes no sense to then re-transfer these same refugees back to the Member State which first received them simply because they have claimed asylum. Furthermore, the application of the Dublin Convention after, for example, two years would be inhumane. It would result in persons who have settled in the host state - who have perhaps learnt the language of the host state, worked and/or been educated in the host state, with a home in the host state for a period of two years - suddenly being transferred to another State simply for the purposes of having the asylum application examined there.
Responsibility for examining the asylum application should be that of the Member State where the person is enjoying temporary protection. Therefore, we urge that Article 17 be deleted.
ECRE is worried about the inclusion of this provision. If a Member State is allowed to withdraw temporary protection from a refugee because he/she applies for asylum, then that is in effect a disincentive to apply for asylum. Unless the minimum rights granted under the Directive on reception of asylum applicants are the same as those under the Directive on temporary protection, then there are clearly again both practical and humanitarian reasons why asylum applicants should continue to enjoy temporary protection status whilst their asylum application is being considered. It would be impractical, for example, to withdraw a persons right to work, to education and training, to family reunification etc. simply because their asylum application was being considered. This is particularly so in the light of Article 18(2) which would provide for the re-granting of these rights in the case of rejection. This is both logically and administratively incoherent.
ECRE would suggest recommending explicitly in the draft article that beneficiaries of temporary protection retain their rights under the directive whilst their asylum application is examined.
Articles 19 23 (Chapter V): General remarks
ECRE welcomes that the draft directive not only provides for access to asylum determination procedures (Article 16(1)), but also obliges states to consider compelling humanitarian reasons making return impossible or unrealistic (Article 20), and provides for voluntary return, in a secure and dignified manner during or at the end of temporary protection (Article 21). Moreover, the Commission must be commended for having included provisions designed not to interrupt ongoing medical or psychological treatment, or current school periods (Article 22). These additional safeguards provide some protection against return in circumstances which are inhumane or unrealistic.
Under draft Article 21(3), there are provisions for extending the benefits of temporary protection only to those who are part of a voluntary return programme. In contrast, with regard to those who cannot return because they are still in need of international protection, it is assumed that the provisions under Chapter III would cease and be replaced by whatever domestic provisions apply to the category in which temporarily protected persons would then find themselves: either as asylum-seekers or as applicants for another protection status. ECRE would urge Member States to guarantee that these persons continue to benefit from at least the same set of rights as granted under the temporary protection regime until a final decision is reached on their asylum application for the reasons stated above.
While we welcome this draft article in principle, ECRE asserts that there are not only humanitarian, but also legal limitations on the expulsion of non-nationals from EU Member States. The first and foremost consideration in questions of return at the end of a temporary protection period is the non-refoulement obligation contained in Article 33(1) of the Refugee Convention and Article 3 of the ECHR. As can be deduced from its statement in the explanatory memorandum, the Commission seems in fact to address these cases under the heading of draft Article 20. However, ECRE would prefer to have a clear terminological differentiation between those legal obligations and other compelling humanitarian reasons preventing return, such as e.g. a person's age or need for a special medical treatment. Regarding an inclusion of a provision to prevent refoulement, see our comments to Articles 8-15 (Chapter III).
There are also other barriers on the expulsion of non-nationals, notably Article 13 of the ICCPR and Article 4 of Protocol 4 to the ECHR, under which mass expulsion of non-nationals is prohibited. ECRE would welcome a reference to the prohibition against arbitrary expulsion of non-nationals and mass expulsion in the draft directive.
ECRE welcomes the draft directive's stress on voluntary return which we believe should be the guiding principle in this context. In our view, UNHCR should play a central role in indicating the viability of safe and dignified return, and in co-ordinating its orderly implementation. Moreover, we emphasise the need for consultation with refugee groups and with non-governmental agencies in both the host country and the countries of origin.
ECRE commends the on-going efforts of EU Member States to establish a system for sharing the responsibility of refugee protection in situations of mass influx. ECRE has long advocated such expressions of regional solidarity. This position is particularly valid with regard to situations of mass influx, where we hope that the existence of solidarity mechanisms might prevent the imposition of, or facilitate the removal of, non-entrée measures which prevent access to a territory of protection.
For any transfer either from the region of origin to the country of temporary protection or from one EU Member State to the other - the consent of the refugee concerned must be of foremost importance. We therefore welcome the Commissions emphasis on a "double voluntary action" in situations of physical transfer of refugees between Member States.
For the interpretation of the exclusion clause as foreseen in draft Article 29, ECRE suggests that the directive or the explanatory memorandum should refer to the guidelines given in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paras. 140 - 163. We also note that draft Article 29 does not contain any guarantees that someone excluded from temporary protection may be offered protection under Article 3 ECHR or CAT .
IV. Final remarks
ECRE hopes that these comments both in general and on specific draft articles prove helpful in discussions on the draft directive and contribute to further revision. Please do not hesitate to contact this office for further information or clarification.
ECRE, January 2001.
European Council on Refugees and Exiles
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