UNHCR
Update on EU asylum and related matters
August — December 2000
The Nice European Council meeting of 7 — 9 December (the longest Summit ever) agreed on a controversial compromise regarding some institutional changes which could not be agreed upon at the time the Amsterdam Treaty was signed (1997): the future composition of the Commission, the weighting of votes in Council and the extension of qualified majority voting in an enlarged Union. The results of the Summit have received a very mixed response. Whereas the Summit did not leave any issues pending, in the words of Commission President Prodi, the attitude prevailing was "every man for himself" over a "one for all" approach. The interplay between Member States, Commission and the European Parliament suffered from Member States’ blockades in a number of dossiers. The results of Nice for future decision-making in an enlarged Union are worrying: decision-making is expected to become even more cumbersome than in the present system.
The Summit agreed, through amendment of Article 67, to extend qualified majority voting and co-decision by the European Parliament to asylum policy — but not to immigration policy - , provided (and this renders the decision ineffective in the short and medium term) the legislative instruments on common rules and basic principles as laid down in Article 63 (1) and (2) have been adopted - with unanimity!
As regards immigation/admission policy , unanimity voting remains the rule - unless by 1 May 2004 the Council takes a — unanimous! - decision to adopt the QMV voting procedure (as provided for in Art 67 (2) second indent ). While at that time the Council may decide not to take such a decision as regards immigration/admission policy, it will take such a decision (which requires a unanimous vote though) as regards future common measures on free movement of third country nationals within the EU — Art. 62 (3) - and future common measures combatting illegal immigration/residence and facilitating return of illegal residents — Art. 63 (3) (b)).
The only JHA area where the Nice Council decided to extend QMV without delay and without further conditions is judicial cooperation in civil matters (with the exception of family law matters) (Art. 65). N.B. QMV in visa policies (such as the EU list of third countries subject to /exempt from a common visa) was already arranged for by the Amsterdam Treaty (Art. 67 (3) and (4).
Also, the Nice Summit agreed, through amendment of Article 7, on a consultation procedure in case a Member State is suspected of, or risks to commit, a serious breach of fundamental rights. Other Treaty revisions concern the introduction of extended measures to allow for enhanced cooperation between at least eight Member States aimed at moving the integration process forward in areas where some Member States cannot yet agree (examples of the past: Schengen, EMU). A new distribution of votes in Council was agreed after much publicised lengthy negotiations. The size of the Commission will be limited to maximum 27 members, in order to enable each Member State to retain its Commissioner. When the Union will expand beyond 27 Member States, a rotation system will come into play. The powers of the Commission President will be accrued, i.a. in dismissing a member of the Commission (after obtaining the collective approval of the Commission). Furthermore, it was decided that in the longer term, all European Summits will take place in Brussels.
The Nice Summit did not take a decision on the status/force of the EU Charter of Fundamental Rights but left this to a future Council. In a Declaration annexed to the Final Act of the Summit, it is announced that a new Intergovernmental Conference will be convened in 2004 to take the institutional and political reforms further. The Declaration also "recognises the need to improve and monitor the democratic legitimacy and transparency of the Union and its institutions, to bring them closer to the citizens of Member States" — in view of the proceedings and results of the Nice Summit, this indeed is no luxury. The results of the Nice Council have been criticised for lack of ambition, progress and clarity by numerous observers, members of the European Parliament, and civil society representatives.
The Nice Summit also discussed enlargement, the common security and defence policy,the Western Balkans and the Mediterranean. As for asylum and immigration, the Summit took note of the report submitted by the High Level Working Group on Migration and Asylum, the two Commission Communications ,and called on the relevant Council bodies to settle as soon as possible the remaining problems concerning the texts aimed at combating the traffic in human beings and illegal immigration (see below).
Prior to the Nice European Council, Heads of State had met informally at the Biarritz European Council on 13 and 14 October, where they had reached agreement on the text of the EU Charter of Fundamental Rights. The European Parliament, in commenting on this agreement and in approving the text, reaffirmed its position that , if not immediately incorporated, as a minimum, the Charter should be referred to in Article 6 of the Treaty when proclaimed at the Nice Council so as to prepare for its legally binding force in future. This recommendation was not followed by the Nice European Council.
The Justice and Home Affairs (JHA) Council of 28 and 29 September adopted the legal base of the European Refugee Fund following consensus reached on the remaining questions related to compensation for expenditure resulting from emergency measures in the event of mass influx situations, and the scale for distribution of resources among Member States. Adoption of the Council Decision made it possible for the Commission to start the procedure for releasing appropriations to be funded by the ERF in the context of the 2000 financial year. Reservations by two delegations on compensation for expenditure in emergency situations were resolved through the adoption of a declaration to be attached to the Decision stipulating that in case of mass influx the Council will endeavour to find other means promoting a balance of effort between Member States (within the framework of the temporary protection Directive). As for the allocation of resources, agreement was reached guaranteeing each Member State a degressive amount during the Fund’s five-year period of validity, allowing Member States with less developed structures and relatively few asylum applicants and refugees to receive an extra financial injection.
The 30 November/1 December JHA Council discussed a number of dossiers prepared by the Presidency - however no political agreement could be reached yet on various proposals. As regards carrier sanctions, a number of delegations (Netherlands, Sweden, Belgium) expressed reservations on the proposed level of sanctions and/or the absence of a satisfactory humanitarian exception clause. The relevant Council working group will now have to prepare a new text during Swedish Presidency. UNHCR had written to COREPER in mid November to express reservations on the present draft, calling for the insertion of a general savings clause stipulating that implementation of the EU Directive to harmonise carrier sanctions be subject to Member States’ obligations under the 1951 Convention, and calling for the inclusion of a provision exempting carriers from liability if the transported, undocumented passenger lodges an asylum application and has a plausible claim to be in need of international protection.
The JHA Council did not reach political agreement about Presidency proposals to adopt common rules to define and penalise acts of smuggling and trafficking (proposals for a Directive and Framework Decision concerning the "facilitation of illegal entry and residence" ). Problems remain with the insertion, again, of a humanitarian exception clause (UNHCR and ECRE had proposed such a clause protecting the position of the smuggled/trafficked asylum-seeker, which was favourably considered by the Presidency, yet which did not address the need to exempt the person/organisation smuggling for humanitarian purposes from penalties), as well as the lack of reference to "financial gain" as the distinctive element of trafficking as a punishable offence. A large majority of Member States agrees that the offence of facilitating illegal entry and presence should be sanctioned by a prison sentence of at least 8 years. Even if the facilitation of illegal entry is for purely humanitarian purposes, such involvement, according to the draft Directive, would be punishable, yet sanctions may be waived in such cases. Negotiations will continue during the Swedish Presidency.
The JHA Council adopted a set of Conclusions on reception conditions for asylum-seekers, which should guide the Commission in drawing up a Directive. The Conclusions leave three issues open, however, which have been the subject of intense yet inconclusive discussions in Council. No agreement could be reached regarding the scope of the future instrument, i.e. whether in addition to asylum-seekers lodging an application within the terms of the 1951 Convention, those applying for complementary forms of protection should also be covered by the instrument. Also, no agreement was reached on the right to work (or on conditions for granting such a right) and on the right to free movement — Germany insisting that the authorities should be allowed to confine residence and movement of asylum-seekers to a certain administrative zone.
The JHA Council adopted the EU visa list of countries whose nationals need (not) to be in possession of a visa to enter the common territory. Bulgaria has been accepted on the "white list" i.e. exempt from a visa obligation. As for Romania, this country has also been put on the "white list" yet with asterisk, which means that it needs to comply with EU standards and practices to combat illegal (transit) immigration and readmission of illegal immigrants before visa obligations can be lifted. A progress report to be drawn up by the Commission on Romania’s compliance with these requirements is expected by 30 June 2001 latest.
The JHA Council formally agreed on the entry into force of the Schengen acquis in the Nordic countries — including Norway and Iceland — and the lifting of border controls between these countries and Schengen countries as of 25 March 2001. The Council also approved of the draft Parallel Dublin Convention for Norway and Iceland as a condition for the entry into force of the Schengen Agreement in the Nordics. Sweden adopted a declaration stipulating that it will have to change its legislation on carrier sanctions in order to comply with Article 26.2 of the Schengen Agreement, announcing it would draw up a report on the required amendments by mid 2001 (at the same time, Sweden, as EU Presidency, will have to negotiate an EU Directive to harmonise the nature (administrative, financial) and level of carrier sanctions).
The JHA Council could not reach agreement about the EURODAC Regulation because of a Dutch parliamentary reservation. However, this reservation was subsequently lifted in a written procedure and the Regulation was formally adopted by the Council on 11 December. The EURODAC system will assist Member States in applying the Dublin mechanism to allocate responsibility for examining an asylum application, by operating a computerised central database of fingerprint data of asylum-seekers and aliens found illegally present on the territory of one of the Member States. The central unit, to be located within the European Commission, will also arrange for the electronic transmission of these fingerprint data between Member State and the central database. Member States will have to establish their national systems and supervisory authority. The Commission will now start a tendering process to select the company which will operate the central system and the transmission network. Once staff has been recruited and equipment installed —both at central and at national level — the system can become operational. Fingerprints can be taken from any asylum-seeker or illegal alien above the age of 14 years. Recording of a (limited) number of fingerprint data is allowed but only for the purposes of determining responsibility for dealing with the asylum request. The Regulation includes provisions on data protection and the possibility of erasure of fingerprint data in case an asylum application has resulted in a positive decision. The system will be supervised by a joint authority which is run by Member States — not the Commission, as the latter and the European Parliament had proposed. The Council overruled the proposal of both institutions which has created considerable tension between the institutions. The EURODAC system will be operational where the Dublin Convention principles are applied, i.e. also in Norway and Iceland. The incoming Swedish Presidency will have to prepare the rules of procedure for the joint supervisory authority which will address i.a. co-operation between the national authorities, the Commission and the joint supervisory authority.
The JHA Council adopted a set of Conclusions on the status and rights of long-term third-country nationals in view of the Commission’s intentions to submit a proposal for a Directive in 2001. The Conclusions followed the outcome of a Presidency seminar held in Paris on 5 — 6 October. The Conclusions raise four essential points to be addressed in the Directive: access to the long-term status (criteria based on period of residence, integration prospects and family life), contents of the long-term status (guarantees and rights), freedom of movement and transferability of rights between EU Member States, and the need for flanking measures, i.a. in the field of integration and anti-discrimination. As for the future Directive this is likely to cover refugees since the instrument should take as a starting point long-term residence irrespective of whether this has been acquired as an immigrant or a refugee. Refugees should also benefit from a transfer of rights if residence is taken up in another Member State than the one which granted refugee status.
The JHA Council also had a first exchange of views on the two Commission Communications Whereas the Asylum Communication was generally welcomed, the Migration Communication raised more questions, i.a. regarding the extent of communality in policy to be achieved and the relationship between establishing legal channels for (labour) migration and measures to combat illegal immigration. The Council also took note of the draft report prepared by the High Level Working Group on Migration and Asylum for the Nice European Council (which was subsequently approved by the 4 December General (Foreign) Affairs Council. Moreover, the Council took note of the updated version of the "scoreboard" which the Commission presented in order to keep under constant review progress made towards implementing the Amsterdam Treaty provisions of Title IV and VI.
Following the adoption of the legal basis of the European Refugee Fund by the JHA Council end of September, the Commission convened a meeting of Member States contact persons on 4-5 October to discuss the implementation of the programme for 2000 and 2001. Since the management of the funds has been decentralised, Member States were expected to submit to the Commission by 20 November an official request for obtaining their agreed share of the funds, by informing the Commission of the general nature of their programme for the next two years, i.e. an indication of the type of projects, division between the eligible areas of activity, involvement of implementing partners etc.). The Commission will review Member States’ proposals and where necessary ask for amendment, following which the Commission should be able to transfer the funds to Member States for 2000 and 2001 by end of March 2001. Member States must issue a public call for proposals and follow a transparent selection procedure. In some Member States, UNHCR and refugee organisations have been invited to advise the designated public authority, in others not. ERF funding can benefit Government projects as long as this funding is not used as a direct subsidy. Funding can also be used for the continuation of projects which were financed previously by the Commission, or which are of a multi-annual nature. It will be important to ensure a balance in funding of the three eligible areas of activity. The Commission has issued detailed guidelines to Member States for the preparation of their submission by 20 November. These guidelines refer to i.a. the need to justify the proposed actions, quantify expected results, and provide an indication of co-funding by other agencies. Member States have also to inform the Commission of the selection procedure and the co-ordination mechanism adopted.
On 10 October, the Commission submitted a revised proposal for a Council Directive on family reunion to the Council Migration working party, following adoption of the parliamentary opinion and amendments in September (Watson, ex-Klamt report). The new proposal includes, to a large extent, the amendments as proposed by the European Parliament. The references to persons benefiting from complementary forms of protection as eligible for family reunion have now been deleted, yet those to recognised refugees have been maintained in the text. The Parliament agreed with the inclusion of provisions allowing for family reunion with members in the ascending line, the reunion of unmarried (including same-sex) couples, the possibility of family formation in the host country and the right to employment. The Commission refused to follow Parliament’s proposal for a clause allowing more favourable arrangements since this would be incompatible with the objective of aligning national legislation, and moreover, a number of the Directive’s provisions already offer a considerable degree of flexibility (but other Commission proposals, such as on temporary protection, include such a clause).
During the parliamentary debate Commissioner Vitorino explained the Commission’s intentions with the instrument, stressing that family reunion should be seen as a right subject to conditions of material and procedural law at national level (such as on de facto unions of unmarried couples) and harmonisation in this area should therefore be limited to the adoption of common rules and basic principles - hence the Commission has proposed a Directive, not Regulation.
The Council discussions on the modified proposal have been as difficult as those on the original draft. Member States continue to consider a number of issues as controversial and adoption of the revised text is not foreseen in the near future. The incoming Swedish Presidency, however, has announced it considers work on the proposal as a key priority and has asked the Council secretariat for a consolidated document summarising the various positions taken by delegations on each article. The German Senate (Bundesrat) on which the Laender are represented already expressed a critical opinion on the modified proposal, considering the text to be too liberal and extensive, particularly as regards the possibility of family reunion for relatives in the ascending line and their right of access to the labour market.
The Commission has drawn up an analysis of the various problems with the implementation of the present instrument, as raised by Member States in their responses to the Commission questionnaire sent out last May. The analysis was reviewed by Dublin experts/practitioners in EU Member States in December, and will be supplemented by a number of conclusions. The final document should guide the Commission in drawing up a new Regulation which the Commission hopes to table in April/May 2001.
The incoming Swedish Presidency has indicated that it would like to discuss the Commission working document of March 2000 at the level of SCIFA in the early stages of its Presidency. A number of NGOs have sent in their comments, yet only three Member States (Germany, the Netherlands, Portugal) have followed this example so far.
On 31 October, the Council adopted formally the long-awaited guidelines concerning the transfer of responsibility for family members in accordance with Article 3 (4) and Article 9 of the Convention. The draft guidelines had been prepared during the German Presidency in 1999 but their adoption had been blocked by Italy arguing that they should also provide for the reunion of so-called "mixed cases" i.e. not only for asylum-seekers who apply for Convention status but also for those who ask for a complementary form of protection. The Italian delegation also argued for a more prescriptive approach to family reunion in case of pregnancy, illness, handicap etc. Both amendments were rejected and do no longer figure in the final version of the guidelines. The guidelines set out the conditions for family reunion and for maintenance of the family group. If conditions for reunion are fulfilled, mutual agreement should be reached between Member States to reunite family members within one month in the asylum procedure of one of the Member States. The guidelines set out the factors to be taken into account in determining which Member State should take responsibility for examining the asylum applications, such as the number of family members already present in one of the Member States or, in case of a separated child, the place where the parent(s) is (are) present.
During the reporting period, the Asylum Working Party completed its first reading of the Commission proposal for a draft Directive. The Working Party will now start negotiations on the individual provisions of the text, which may take various months. Adoption of the instrument cannot be expected in the short term, although the incoming Swedish Presidency has announced it will deal with the dossier as priority. Main concerns as expressed by Member States relate to the following issues:
The Asylum Working Party focussed much of its deliberations on the preparations of the Council Conclusions which were eventually adopted by Ministers on 30 Nov/1Dec (see above) Disagreement remains over the three issues identified by Ministers: Sweden and the Netherlands would like the future Directive to be applicable to all applicants for protection, including those seeking alternative status (particularly if a single procedure is implemented). Germany maintains its reservation to the right to free movement of asylum-seekers and wants to keep authority over confining asylum-seekers to certain administrative zones. Access to the labour market remains controversial: some delegations (Ireland e.g.) remain opposed, other delegations are in favour (because some of them don’t provide for social assistance, such as Greece and Portugal), and a large number of delegations allow for the right to work but only after a certain period of time (6 months, Germany proposes 12 months). The inconclusive discussions in Council on the draft Conclusions do not bode well for an early agreement on the relevant provisions of the future Directive.
Meanwhile, the Commission has started drafting its Directive: a first version was finalised in mid-December. The Commission organised a series of discussions with Member States, UNHCR, selected NGO partners on the basis of a document outlining a number of questions. During the discussions it has become clear that one of the main problems is related to the provision of reception conditions (accommodation) to asylum claimants whose applications are examined in an admissibility or Dublin-type procedure. As for the scope of the Directive, the Commission intends to retain some flexibility in so far the provisions should be applicable where a single procedure is implemented, or separate procedures for complementary forms of protection are applied. The Directive should include a clause allowing for the introduction or maintenance of more favourable provisions by Member States. It will be structured around a number of chapters, starting with general provision on reception conditions (the full range with the exception of employment and vocational training, which are listed under a separate chapter providing for conditions depending upon the length of the procedure), and followed by a chapter on conditions during border, admissibility and accelerated procedures (mainly emergency health care, and some form of accommodation for all applicants or only humanitarian cases — to be decided), a chapter on conditions during the regular and appeal procedure, on exclusion or reduction of reception conditions, and on conditions for groups with special needs (-separated- children, women, torture victims). The draft Directive is also expected to include provisions on improved co-ordination between Member States, information and public awareness campaigns, and the need for Member States to invest in sufficient human and financial resources as well as adopt rules to monitor the quality of facilities and training and performance of staff.
The Commission published a proposal for a Directive on minimum standards for the procedure for the granting or withdrawal of refugee status on 20 September. The adoption of common standards is considered a first step in the process to full harmonisation of Member States’ asylum procedures. The draft Directive does not require Member States to apply uniform procedures but aims at ensuring that certain standards and requirements with respect to relevant procedures and competent authorities are met. Member States are free to choose whether they want to apply the proposed standards in the asylum procedure only (determining protection needs within the terms of the 1951 Convention) or also in complementary procedures resulting in alternative forms of protection. The draft Directive proposes to shorten the procedure by introducing time limits and streamlining of the appeal procedure (one appeal on substance and another on a point of law). Member States are at liberty to decide whether or not to introduce admissibility and accelerated procedures, but if they do so, they should abide by the common standards laid down in the draft Directive.
The draft Directive is based upon discussions in the Council and the European Parliament following the March 1999 Commission working document "towards common standards in asylum procedures" to which UNHCR and NGOs also commented. The European Parliament adopted its report (rapporteur Schmitt) in June of this year. The draft Directive is aimed at establishing a common level of procedural fairness in the national systems of Member States, which may also help to avoid secondary movements. A number of procedural guarantees for the asylum-seeker are laid down, supplemented by additional specific guarantees for persons with special needs, including separated children.
While a number of provisions in the draft Directive can be welcomed, some serious concerns have been raised which will have to be put in an official comment shortly. The proposal leaves much room for derogations and administrative discretion and tends to fall back on old recipes which often have not worked to the satisfaction of either asylum-seekers or States. The Explanatory Memorandum foresees in the establishment of a Contact Committee which should facilitate the transposition and harmonised implementation of the Directive and prepare the ground for extended harmonisation, yet it remains unclear how this Committee will operate and what status will be given to its decisions.
More importantly, the proposal does not require States to apply uniform procedures or to introduce a single procedure to determine all protection needs in a holistic manner — the Commission believes such proposals would go beyond the adoption of minimum standards as required by the Amsterdam Treaty. Whereas the proposal may be considered positive in laying down a clear set of procedural guarantees for the asylum-seeker and a number of criteria to rationalise the requirements for decision makers (by introducing a three-tier system: an authority determining refugee status, an authority to hear administrative or judicial appeals and an Appellate Court ), in clarifying certain concepts and practices, it takes a rather restrictive approach, particularly as regards the proposed use of the safe third country notion and the safe country of origin concept, the overly expansive definition of "manifestly unfounded" claims, and, as a consequence, frequent resort to accelerated procedures, as well as the lack of insistence of suspensive effect of appeals in procedures other than the regular one — to mention only a few concerns.
In September, the Council adopted mandates authorising the Commission to negotiate EC readmission agreements with four countries: Russia (as part of the Common Strategy), Morocco, Pakistan and Sri Lanka (as a result of HLWG Action Plans) The Commission has not yet started actual negotiations since the partner countries must first be consulted on the terms of the proposed agreements, which will undoubtedly lead to some difficult deliberations. The agreements are expected to include a "savings clauses" making their implementation subject to obligations under international conventions such as the 1951 Convention in regard to asylum-seekers whose claims have not been heard but are returned under the agreement.
The Commission is also inserting standard readmission clauses in association/partnership agreements (such as during recent consultations with Algeria) and stabilisation and association agreements with the countries of the Western Balkans (starting with Macedonia/FYROM, to be followed by Croatia). The Cotonou agreement signed earlier this year with ACP countries also includes the standard readmission clause. This clause does not include supplementary safeguards ensuring that asylum —seekers will have their claim examined by either of the parties, since this is assumed to be a matter to be regulated by implementing guidelines, not in the more general provisions of the agreements.
On 22 November the Commission adopted two Communications, one on a common immigration policy and one on the potential for a common asylum procedure and uniform refugee status valid throughout the European Union. The Commission presented the two Communications together in order to underline the separate but inter-related nature of the two fields. The proposals laid down in the Communications should give impetus to further legislative and policy activity at EU level, beyond the Amsterdam Treaty programme. The Communications will be examined in the relevant Council working groups, and the incoming Swedish Presidency will put the texts on the agenda of Ministerial Council meetings.
The Migration Communication calls for the opening of channels for legal admission for labour purposes. It suggests a common legal framework for the admission and residence of labour migrants. It comments on the need for common assessments of economic and demographic developments, strengthened partnership with countries of origin, and the need for vigorous integration policies. It also comments on the potentially positive impact of an open and transparent admission policy on measures to combat illegal immigration and the (real or perceived) abuse of the asylum system.
The Asylum Communication announces that the Commission will explore the adoption by Member States of a single procedure and a uniform status by centralising the examination of all protection claims through a "guichet unique", obliging adjudicators to assess an application first of all within the terms of the 1951 Convention. As regards status, the Communication does not address questions of definition — who qualifies as a refugee — but is limited to an analysis of the contents of status and opts for a uniform status. While a single procedure may be welcome, a uniform status may entail the risk that the specificity and distinct nature of the Convention status will no longer be preserved, nor its international dimension and extra-territorial effects. The Communication also addresses the issue of access to the procedure, the need for better mechanisms for data collection and analysis, in particular in respect to country of origin information and asylum and migration statistics. It also suggests further study into the possibility of a common resettlement policy coupled with assistance for processing and (initial) reception in the region, and a common return policy. UNHCR is preparing a written comment to the Communications.
The HLWG met on a monthly basis during the French Presidency, primarily to prepare a progress report for submission to the Nice Summit, as requested by the Tampere Summit in October 1999. The report does not present new ideas but explains the thinking behind the work in progress, i.e. the need for closer co-operation between the EU institutions and ministerial departments if the integrated, comprehensive approach is to bear fruit, as well as a call for sufficient financial and human resources for effective implementation, close co-operation with international organisations and NGOs, as well as a genuine partnership with beneficiary countries. The report gives a frank and honest account of the obstacles met in implementing the Action Plans: it notes difficulties in co-ordination between the national administrations as well as the general problem of integrating objectives relating to migration into development assistance primarily focussed on poverty alleviation. The report also mentions the impression of imbalance in implementation with emphasis on the "security" aspects and calls for redressing this. The report calls for closer co-operation with the beneficiary countries: without reciprocal commitments accepted by common accord, implementation of the Action Plans is doomed to fail. As for the way forward, the report suggests a differentiated approach taking the specificity of each country situation duly into account. The non-existence of dialogue with some beneficiary countries (Afghanistan, Somalia, Iraq) makes co-operation with international organisations all the more important, as well as partnership with neighbouring countries (such as Turkey for Iraq and Pakistan and Iran for Afghanistan).
Financing the Action Plans remains a concern as long as development departments — at national and EU level — are not convinced of the necessity to give priority to the type of measures proposed in the Action Plans. The Commission DG Justice and Home Affairs will however dispose of a new budget line of 10 MEURO each year (as a starter) which should be used for financing some of the measures in the beneficiary and neighbouring countries. To facilitate implementation and avoid duplication, the HLWG should also link up with UN country programmes as presented in the UN Consolidated Appeal. The elaboration of new Action Plans is for the moment not on the agenda.
The HLWG produced a Matrix for each Action Plan recording progress in implementation. References to programmes of international organisations are disappointingly few and general. The HLWG organised a number of country-related sessions to discuss implementation of the Action Plans, in the case of Albania in the presence of experts from international organisations and international NGOs. These consultations however have not resulted in more dynamic support from the HLWG for the implementation of the country programmes of these organisations. The Action Plans were also discussed among EU Foreign Office officials within the relevant Council working parties of the Common Foreign and Security Policy. The Swedish Presidency has announced it will take the HLWG work further and is organising consultations with international organisations and NGO partners in the early stages of its Presidency in order to discuss a number of proposals for improved co-operation.
CIREA met twice with UNHCR during the reporting period. In September an exchange was held on the issue of "asylum and terrorism" . In December CIREA reviewed for a first time the situation in the Russian Federation as a country of origin and transit.
7. External dimension of EU migration/asylum policies
The issues of asylum and migration, as part of the JHA acquis, are receiving increased attention in EU external relations with third countries, following the Feira Council Conclusions (June 2000) , whether in political dialogue or contractual relations with partner countries. During the EU- US Summit in December, it was agreed to intensify the Transatlantic dialogue on asylum and migration with a view to presenting a report to the EU- US Summit in June 2001. In high-level talks with other countries, such as with Russia (October), China (October) Ukraine (December), Canada (December) attention was focused mainly on illegal immigration and international crime and the need for strengthened co-operation to combat trafficking and, in the cases of China and Russia, on preparations for a readmission agreement and the exchange of expertise in combating illegal immigration.
Commissioner Vitorino, on behalf of the Union (which has now acquired competences in the area) signed the UN Convention against organised transnational crime and its two protocols on smuggling and trafficking in Palermo in mid December. The text agreed upon during the Vienna-based preparations will also influence the drafting of future EU instruments in the area (see above) which may go beyond the minimum norms as stipulated in the UN instrument.
The JHA issue is also becoming a significant element in the Stabilisation and Association process for the Balkans and the partnership with Mediterranean countries in the context of the Barcelona process (see below)
8. UNHCR relations with EU institutions
On the occasion of the 50th anniversary of UNHCR, the European Parliament adopted, by consensus, a resolution in its plenary session of 14 December. The resolution recognises the unique mandate of UNHCR to protect and promote durable solutions for refugees and other uprooted people of its concern, reminds EU governments of their solemn declarations made at the Tampere Council on the absolute right to seek asylum in the Union and its commitment to base the future common asylum system on the full and inclusive application of the 1951 Convention and encourages the Commission and Member States to adopt future asylum instruments based on high protection standards. The resolution also calls for more predictable, flexible and geographically balanced funding for UNHCR, and calls on the Commission to recognize the co-ordination role of UNHCR in its contractual arrangements with partners. Also, the resolution draws attention to the issue of staff security.
Adoption of the resolution in plenary was preceded by a statement of the Assistant High Commissioner in a joint session of the European Parliament Foreign Affairs Committee, Justice and Home Affairs Committee, and Development Committee. The statement addressed present challenges for UNHCR in the area of protection and assistance and reviewed UNHCR — EU relations in asylum and refugee assistance policy. The statement was followed by a questions and answer session with MEPs.
UNHCR Brussels also organised a photo exhibition depicting the refugee situations which UNCHR has had to confront over the past 50 years. The opening was well attended by numerous MEPs, EP staff, Commission staff, NGO representatives, staff in Permanent Missions and selected journalists.
On 20 October, UNHCR met in Geneva with the EU Commission within the framework of the Semestrial Partnership on Asylum and Refugee resulting from the July exchange of letters referring to Declaration No. 17 to the Amsterdam Treaty. The meeting discussed the global consultations, the preparations for the Commission Communications on Migration and Asylum, progress in implementing the asylum provisions of the Amsterdam Treaty (asylum procedures Directive, European Refugee Fund, proposal for an instrument on reception conditions) and enlargement/external dimension of EU asylum policy (including the High Level Working Group)
On 7 December, UNHCR made a presentation on the global consultations to revitalise the international protection system (50th anniversary of the 1951 Convention) in the Council Asylum Working Party. The presentation put the consultations in a historical perspective, reviewed the goals, the "track" structure and the work programme for the 2nd and 3rd track. A number of questions were raised by delegations, but it also became clear that the Fifteen have not yet discussed a possible joint approach to some of the issues on the agenda of the consultations. Delegations did not yet put forward any views about how the global consultations may inform and influence the EU harmonisation process. A next exchange between UNHCR and Council on the issue is planned for the January SCIFA meeting under Swedish Presidency.
On 17 October, the Council reached political agreement on the Framework Directive on equal treatment and non-discrimination in employment and work, as regards i.a. race, ethnic origin, religion, age, disability, sexual orientation. Member States are expected to implement the standards and criteria laid down in the Directive as regards access to work, training, and working conditions. National legislation resulting from implementing the Directive may contribute to better integration of refugees in the workforce. The Council also agreed on the Community action programme for fighting discrimination (2001 — 2006). Already in June 2000, the Council adopted a Directive on anti-discrimination measures related to race and ethnic origin. The three measures are part of a package which was prepared by the Commission to give substance to Article 13 Amsterdam Treaty.
The Community Action programme may be beneficial to NGOs and local authorities counselling refugees and envisages analysis/evaluation of policies, NGO capacity-building, including trans-national networking concerning policies, practices, tools, and awareness-raising, including media campaigns, publications and exchanges.
The Vienna-based EU monitoring centre on racism and xenophobia published its second annual report (over 1999) voicing concern over an increase in racial and ethnic discrimination at all levels of society in a number of EU Member States. Main victims of racist violence were Roma, refugees and immigrants from Arab and African countries. After declining in recent years racial violence is now on the increase once more, particularly in Austria, France, Germany, Spain, Sweden and the UK. The report also mentions police ill-treatment in detention centres for illegal immigrants and rejected asylum-seekers. The report notes positive developments mainly at the legislative level through the adoption of anti-discrimination and anti-racism laws and the establishment of monitoring and complaints bodies.
On 9 November, the EU Commission published its Regular Reports on each of the candidate countries. The Commission also published its general annual report on progress in the preparations for enlargement. The Commission has established a "road map" which would permit the conclusion of negotiations on the various chapters of the EU acquis in the course of 2002 in order to welcome new member states by 2003. Justice and Home Affairs matters (chapter 24) will be negotiated in 2001, already in the first half during Swedish Presidency. The Commission maintains the principle of differentation, i.e. progress in each candidate country will considered on its own merits and well-prepared countries should be able to advance rapidly. Candidate countries brought in later in the process (the "Luxembourg" group) should have the possibility to catch up and be among the first candidates to become a member of the EU (such as Malta). Requests for transitional measures during the first years of membership will be considered during the negotiations yet the Commission will enter these negotiations with a list of acceptable, negotiable and unacceptable requests in mind. The Commission reminds candidate countries of the importance of not only incorporating the EU acquis in legislation but also implement it in practice by enhancing administrative and judicial capacities.
With the exception of Turkey all candidate countries fulfil the political criteria for accession, although the reform of the judiciary, the continued prevalence of corruption, the growing problem of trafficking in women and children and the discrimination of the Roma remain issues of concern in various of the candidate countries. The Accession Partnerships remain the central pre-accession strategy instruments, and this document is now also available for Turkey after it was approved by Foreign Ministers in early December. Pre-accession assistance to Turkey has now also been brought within a single financial framework. Short-term priorities of the Accession Partnerships as identified in 1999 which have not yet been fully met should be implemented rapidly and the medium-term priorities must now also be applied, forming the basis for programming the pre-accession assistance for 2001. The Commission will also embark on a major public information and awareness strategy in the candidate countries and in EU Member States about the advantages of enlargement and EU membership.
EU Foreign Ministers meeting in December and the Nice European Council endorsed the Commission’s strategy and its proposal for a "road map" for the next 18 months. Ministers and Heads of State and Government also supported the principle of differentiation and the need to focus on administrative and judicial capacity to implement the EU acquis.
The Commission is now preparing for a second round of expert missions to assess progress to date in the JHA area in candidate countries in Spring 2001. The Commission is also preparing for the PHARE 2001 programming. A number of asylum projects, as separate programmes or as part of a wider migration-oriented approach, are under discussion with various candidate countries (e.g. Bulgaria, Czech Republic, Latvia).
The European Parliament has requested that the first accessions take place in 2004 and called for an undertaking from Member States that a possible further institutional reform does not create new accession criteria. The Nice Summit expressed the hope that the first new members can be welcomed before the European Parliament elections take place in 2004.
On 24 November a Summit in Zagreb brought together for the first time countries in the region which had returned to democracy at the level of Heads of State and Government, with their counterparts from EU countries. The Summit expressed support for the Stability Pact and confirmed the EU stabilisation and association process as the way ahead for closer cooperation and future integration in EU structures. The Stabilisation and Association agreement with Macedonia/FYROM was initialled at the Summit. The Summit underlined the need to give new impetus to regional cooperation, refugee return and re-integration, strengthening regional security, consolidating democratic change and embarking on economic reforms. The Summit also called for measures to stem illegal immigration, trafficking, and the need to combat organized crime and corruption.
In December the Council approved the new single Community aid programme for the countries participating in the stabilisation and association process, entitled CARDS (Community Assistance for Reconstruction, Democratization and Stabilization). The instrument will be endowed with a financial reference of EUR 4.65 billion over the period 2000 — 2006. It will accompany and support the democratic, economic and institutional reforms of the five Balkan countries concerned. The Council also decided to extend the competences of the European Agency for Reconstruction to the whole of the Federal Republic of Yugoslavia.
Within the framework of the Stability Pact, UNHCR participated in, and helped to prepare, two meetings of the Refugee Return Steering Committee in September and November. While minority returns are on the increase, the momentum for increased returns may be lost if donor funding is not coming in timely. Reconstruction needs and the implementation of property legislation remain two major concerns.
Also as part of the Stability Pact, UNHCR and partner organisations and countries has been preparing a programme for capacity-building in asylum and migration for the region. An information note was produced for a meeting of Working Table III on Justice and Home Affairs taking place in Sofia in early October, and a more elaborated programme was under review at the end of the reporting period. The programme foresees in a regional strategy, taking into account the different needs of the beneficiary countries, to develop functioning asylum and migration systems. Provided sufficient funding will be provided, implementation is expected to start next year. Country teams are being established and needs assessments drawn up, to be followed by the elaboration of national action plans, in order to take the legislative reform, institution-building and enhancement of practitioner capacity further in an organised and co-ordinated manner.
Following the adoption of an EU Common Strategy for the Mediterranean last June, EU Foreign Ministers met with their Mediterranean counterparts in Marseilles in November to strengthen co-operation around the Mediterranean basin. The EU Presidency Conclusions were issued without the support of their NorthAfrican and MiddleEastern counterparts due to differences of views i.a. over the future of the Middle East peace process. The Marseilles Conclusions include references to human rights, security, rule of law, fight against trafficking and the issue of migration and (co-)development.
The Marseilles meeting also reviewed the Commission Communication on the reinvigoration of the so-called Barcelona process issued last Summer 2000, which foresees in the preparations of an EU action plan for the region in Justice and Home Affairs, including measures for institution- and capacity-building in asylum and migration. Following the Marseilles ministerial meeting, the Commission intends to convene an expert meeting to discuss the outline of this action plan, to be followed by sub-regional meetings aimed at analysing needs and priorities for training, exchange of practices and strengthening regional co-operation. UNHCR may want to seek support from the EU, in the context of this action plan, for its asylum capacity-building activities in the region.
Prior to the Marseilles meeting the European Parliament adopted a resolution stressing the importance of human rights in the co-operation and the need for increased action by the EU to promote human rights, women’s rights and action towards the abolition of capital punishment in the region. Parliament also emphasise the importance of the migration issue in the dialogue and its related security, socio-economic and cultural aspects.
The Nice European Council approved a Presidency report plus annexes on progress made in the development of a Common Defence and Security Policy, as well as reports on the rules and procedures for future EU military and civilian crisis management and proposals for improving the coherence and effectiveness of EU action in conflict prevention. The Presidency report takes stock of developments to prepare an autonomous EU capacity to launch and conduct EU-led military and civilian peace-keeping and peace-making operations in response to international crises. The reports deals i.a. with progress in developing the necessary capabilities, the establishment of permanent political and military structures, arrangements for involvement of non-EU European NATO members and candidate countries and arrangements for EU access to NATO assets and EU-NATO co-operation in conflict prevention.
The EU must be made quickly operational — as for military capabilities, by 2003 the EU should be able to deploy within 60 days and sustain for at least one year forces up to 60,000 persons — as for civil police, by the same date, up to 5,000 officers, 1,000 of them to be deployable within 30 days, must be available on the basis of voluntary contributions from Member States, for international missions across the full range of conflict-prevention and crisis-management operations.
The Swedish Presidency has to develop modalities of co-operation between the EU and NATO (NATO member Turkey is at present opposed to EU access to NATO assets for peace-keeping and peace-making operations (so called "Petersberg" tasks). It also has to do as regards co-operation with the UN structures, the OSCE and Council of Europe. The EU High Representative and the UN Secretary General met in early October to discuss co-operation with the UN Secretariat and the Department of PeaceKeeping Operations, i.a. co-ordination and reporting lines between EU and UN bodies in crisis operations where the EU is sending its own forces or as part of a UN force.
The Commission launched an initiative for a Rapid Response Facility designed to enhance the EU’s civilian capacity to intervene fast and effectively in crisis points outside the EU earlier in the year. The Council is negotiating the proposals which should be brought in line with the rules and modalities of the Council Civilian Crisis Management Committee. In the area of conflict prevention and crisis management the EU integration process is expected to see considerable progress in the months ahead.
UNHCR Brussels
December 2000