REFUGEE CRISES MANAGEMENT IN THE EU

Outlooks on an emerging policy field*

Ferruccio Pastore (CeSPI)

- April 2001 -

1. Introduction

In the framework of a broader reflection on crisis management at the EU level, refugee crises management certainly deserves a special attention[1]. As a matter of fact, the European experience in the ’90s has demonstrated that forced migration is now, more often than in the past, a central aim rather than a mere side-effect of conflict[2]. At least 3 reasons can be pointed out for such a disturbing trend:

a) the first and most evident is the close relationship between increased political instability at the global level and the diffusion of the practice that in the past decade was labelled as “ethnic cleansing”. In several contexts, channeling violence against particular categories of civilians, in the name of some form of ethnic purity has often be perceived as the best way to mobilize masses behind non-democratic leaderships;

b) second: on many occasions, particularly in the Western Balkans, forced migration has been used as a means to cause regional de-stabilization, in order to take geo-political advantage from it;

c) third: producing forced migration has showed to be a possible strategy to put pressure on Western governments (for which migration has clearly emerged, in the international arena, as a major Achille's heel), in order to obtain material advantages of different nature.

Until very recently, talking of refugee crises management at the EU level did not make much sense. As a matter of fact, the biggest forced migration flows of the ’90s have been managed by each Member State unilaterally, in a rather uncoordinated way[3].

Despite this lack of coordination, all European national responses showed a similarity, in that they were based on different forms of temporary protection (TP), rather than on group determination of refugee status on a prima facie basis, which had been in the past the most typical response to mass inflows, particularly outside Western Europe[4]. The reason for this preference is obviously political and it derives from the greater flexibility of temporary protection schemes as a tool to manage refugee crises.

But beyond this fundamental analogy, national responses differed deeply in many respects, such as, for instance: the maximum duration of temporary protection(from six months to five years maximum), the possibility of suspending the examination of asylum applications during the temporary protection period, the degree of recognition of the individual rights to family regroupment and to employment, the welfare benefits granted to the beneficiaries of temporary protection.

Such disparities between national approaches produced imbalances, as they oriented refugee flows preferentially towards the most “generous” countries. This was among the fundamental reasons which pushed European institutions to start a harmonisation process, first under the treaty of Amsterdam, in the third pillar framework[5], and later in the new institutional context created by the the Amsterdam treaty, with the presentation by the Commission of a proposal for a Council directive “on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof”[6]. The draft Directive provides for a financial solidarity mechanism by making reference to the Council decision establishing a European Refugee Fund, adopted in September 2000[7].

In spite of these encouraging developments, the way towards an overall EU capacity in the field of refugee crisis management is still fraught with substantial obstacles. In the next pages, we will focus on the most problematic aspects of the EU policy-making process in this field, on the basis of a tripartite model of refugee crisis management based on the distinction between: crisis prevention (par. 2), flow management and refugee protection (par. 3), refugee return and community reconstruction (par. 4).

2. The stage of crisis prevention

When talking about refugee crises prevention, a distinction should be made between general crisis prevention policy instruments and migration-specific tools. Quite obviously, effective general crisis prevention also has effects on the refugee dimension of a complex crisis. This was clearly recognized by the European Council during its October 1999 extraordinary meeting devoted to the development of an Area of freedom, security and justice in the EU. On that occasion EU Heads of State and Government officially endorsed a strategic choice in favour of a comprehensive approach to migration management, which includes crisis prevention in all its dimensions:

“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 a key element for the success of such a policy, with a view to promoting co-development”[8].

But within the framework of comprehensive crisis prevention, there are some preventive policy tools which are peculiar to the JHA field and sometimes to the specific area of refugee crises management[9]. In particular, it is worth focusing here on monitoring and early warning mechanisms, designed to detect the early signs of anomalous trends in refugee flows and migration in general.

The Council document on "European Union priorities and policy objectives for external relations in the field of justice and home affairs", submitted to the European Council meeting in June 2000, singled out "early warning mechanism on new problems that might arise" as one of the central tasks of the Union's work in the JHA field[10].

Something already exists, such as the CIREA (Centre for Information, Reflection and Exchange on Asylum), an informal exchange and consultation group with no decision-making powers. But, in the words of the Commission, "There are good grounds for wondering whether the CIREA still meets the need of a common European asylum system […] Clearly it is becoming more and more difficult to achieve common evaluations, and the results have so far rarely filtered through to the staff who actually process requests"[11].

Which are then the new needs that existing bodies, like CIREA, do not satisfy? In the first place, the need for in-depth, constantly updated, reliable information on the situation in the countries of origin:

"A common procedure and a uniform status entail even greater mobilisation of the external policy means of action available to the Union, for example in gathering and exchanging information on countries of origin, monitoring flows and the human rights situation, monitoring reconstruction and humanitarian aid in countries and regions of origin. The Union's diplomatic missions could be asked to play a role here"[12].

Specialized monitoring mechanisms on actual migration trends are lacking as well. A rapid alert system on illegal migration has been set up by the May 1999 JHA Council, but this seems to work just as a structure for exchange of information, without autonomous analysis capacity. Well aware of such deficiencies, the Commission envisages the creation of a more effective structure. At the present stage, nevertheless, the “Scoreboard to review progress on the creation of an ‘Area of freedom, security and justice’ in the European Union”, drawn up and regularly updated by the Commission, does not go beyond the project of a “virtual European Migration Observatory”, based on the interconnection of (not always) existing national agencies[13].

While this European endeavour is still at the stage of preparatory actions, national governements try and fill the gap on their own. A regional early warning system on unauthorized migration was planned in the framework of the Adriatic Initiative, launched last year by Italy (Ancona, 19-20 May 2000). More recently, a bilateral British-Italian initiative was launched, which aimed primarily at reinforcing the struggle against illegal migration through a set of tools among which an "EU liaison officer network in the Western Balkans" whose objective is to encourage "the sharing of information, intelligence, and tasks" in order to "boost our joint response to illegal immigration"[14]. The proposal received support by the EU Commissioner Antonio Vitorino and was finally endorsed by the JHA Council (15-16 March 2001). This has led to a Troika mission to Belgrade and Sarajevo (27-28 March 2001) for bilateral meetings with representatives of the Yugoslav and Bosnian governments and a multilateral ministerial meeting involving other countries of the region (Albania, BiH, Croatia, FYROM, FRY), conceived as a follow-up to the November 2000 Zagreb Summit. The relationship of such ongoing process with the Stability Pact framework seems still to clarify.

3. The stage of flow management and refugee protection

Once a refugee crisis has exploded, the crucial policy issue becomes: how to deal with the ongoing extraordinary population movement, in order to guarantee an adequate protection to the victims and to manage the flow in a sustainable way? In particular, a fundamental option has to be faced about whether to deal with the mass influx with "ordinary", individual, Geneva-based forms of protection, or to activate some "extraordinary", collective protection regime (which in the European case will probably mean a particular version of temporary protection). With particular regard to the EU context, such basic option can be broken down into three key questions:

a) when to give collective protection?

b) where to give collective protection?

c) who pays for collective protection?

a) The issue is highly controversial as in several Member States the statuses of asylum-seekers and recognized refugees are far more advantageous (and costly for the receiving State) than that of beneficiary of a temporary protection scheme[15]. This explains the widespread mistrust in the non-governmental sector against temporary protection as such, often perceived as a Trojan horse aiming at de facto ruling out the Geneva convention. The Commission itself has acknowledged openly the existence of such risk:

“Temporary protection is sometimes criticised by those who consider that in certain Member States it is implemented as an instrument that can be used to circumvent or even evade the obligations flowing from the Geneva Convention. There is indeed a real risk that the situation could go out of control. The European Union’s responsibility is crucial, and it must manifest its intention to ensure, by means of its legislative instruments, that that is not its objective”.

In order to prevent inappropriate uses of the instrument, the EU's executive body, in its May 2000 proposal, foresees that temporary protection should be granted only "in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin […] where there is a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation" [art. 2(a), emphasis added].

UNHCR has judged this definition "generally consistent with internationally agreed principles"[16]. But some NGOs have expressed stronger concerns and urged the definition of more restrictive criteria for the establishment of TP at the EU level. Amnesty International, for instance, stated that:

"A 'mass influx' should always be defined by the number of people entering the EU and never by the number of people actually or potentially leaving a particular country of origin. A temporary protection regime should not be enacted any time a crisis breaks in any country in the world, but only when refugees fleeing those countries arrive within the EU in exceptionally great numbers and in a short period of time"[17].

b) The apparent effort to externalize the costs of international protection, accompanied by a growing (and sometimes ambiguous) emphasis on the "right to return", explains the preference for in loco or regional protection repeatedly shown by EU countries during the ’90s. Such preference was among the factors contributing to crucial strategic decisions such as the establishment of the "no-fly-zone" in Northern Iraq and of the "safe havens" during the Bosnian war, such as the Italy-led "Alba" mission which started the stabilization of Albania after the 1997 crisis and such as the containment of the great majority of Kosovar refugees in Albania and FYROM, in 1999.

The question about where to grant protection (in the country of origin, somewhere in the surrounding region or within EU borders?) is among the harshest dilemmas for a future EU refugee crises management policy. On paper, in loco or regionalized protection is probably the best option (at least in the short term); but in practice, either it is implemented in an extremely effective and convincing way, or it risks turning into a boosting factor for criminal smuggling organizations. Already now, even in situations which cannot be labelled as "refugee crises", it is estimated that a majority of the asylum-seekers entering the EU have recourse to professional smugglers[18]. And this trend, which is unacceptable in a human rights-oriented perspective, is likely to be accentuated at the height of a crisis. This is why, in an official position paper on the EU Commission draft directive on temporary protection, UNHCR stated explicitly that:

“The proposal could suggest that States should not impose any measures, such as visa requirements or sanctions on carriers transporting improperly documented persons, which may prevent refugees from gaining access to temporary protection”[19].

Pointing out the risk of such perverse effects is not equivalent to abandoning the search for better forms of regionalized protection. In this area, more than anywhere else, innovative efforts and creative proposals are needed by all sides. Luckily, something new is beginning to emerge: UNHCR, for instance, which had traditionally focused mainly on the need for more generous admission policies by EU States, is now exploring new paths:

“[…] consideration could be given to mutually beneficial arrangements between the EU and selected countries in certain regions to establish ‘regional asylum processing centres’ to serve as an initial locus for identifying protection needs of asylum-seekers originating from those regions. The central focus of such a scheme is that, by bringing eligibility procedures closer to countries of origin, refugees could file asylum claims in States other than those that may subsequently grant them asylum if their claims are recognised. As a result, the impetus to move extra-regionally in an irregular manner or to resort to the services of unscrupulous people smugglers may be eliminated, or at least reduced considerably”[20].

A similar approach is envisaged by the European Commission, which is now conducting a feasibility study on it:

"Processing the request for protection in the region of origin and facilitating the arrival of refugees on the territory of the Member States by a resettlement scheme are ways of offering rapid access to protection without refugees being at the mercy of illegal immigration or trafficking gangs or having to wait years for recognition of their status. […] This option, as the Commission sees it, must be complementary and without prejudice to proper treatment of individual requests expressed by spontaneous arrivals"[21].

c) The issue of burden-sharing has been for years, now, at the core of the European debate on harmonisation of asylum policies. The issue has proved to be thorny and two subsequent proposals by the Commission (see note 5) have been put aside because of the impossibility to reach unanimity. In the new proposal, tabled by the Commission in May 2000 and currently under negotiation[22], each European temporary protection programme is established by the Council [the decision is adopted by qualified majority on a proposal from the Commission: art. 5(1)] to face a specific mass influx and for a given category of refugees. The activation of a TP regime obliges Member states to receive refugees from that particular area and/or group. In the meantime, two mechanisms of "solidarity" enter into force:

i) financial solidarity granted through the European Refugee Fund (see note 7);

ii) solidarity in physical reception, based on the rule of double acceptance (acceptance of the refugee by the country chosen as a final destination; willingness on the part of the refugee to be received in the country chosen as destination).

Such a model of burden-sharing would certainly represent a great step forward from the present situation, where no binding arrangement exists. Nevertheless, given the limited funds allocated (EUR 35 million a year for the period 2001-2004, plus EUR 10 million a year for emergency measures) and the voluntary nature of the envisaged mechanism for “physical solidarity”[23], the proposed solution could turn out to be too weak to manage adequately future refugee crises. Even the competent Commissioner has recently shown, in front of the European Parliament, a great deal of prudence on this specific point:

“Je ne peux pas vous garantir que le système va fonctionner, mais nous avons, en tout cas, tenté d’élaborer un instrument qui doit permettre de garantir tant le principe de solidarité dans l’accueil physique que celui de la solidarité financière”[24].

4. The stage of refugee return and community reconstruction

The last stage in the management of a refugee crisis is represented either by integration in the receiving country (be it one of first arrival or one of resettlement) or by return/repatriation. The Commission May 2000 proposal, by saying that “when the temporary protection ends, the ordinary law on protection and entry and residence of foreign nationals in the Member States shall apply” (art. 19), leaves untouched the Member States’ authority to manage this stage in a discretionary way, choosing between the granting of asylum or subsidiary protection (or integration through other channels), voluntary return, forced repatriation or resettlement to willing third countries.

In spite of a very explicit favour for voluntary return (articles 20-22), the draft directive does not provide any mechanism to harmonize the Member States’ policies after temporary protection comes to an end. This is clearly a limit and a weak point of the proposal, as a coherent and transparent return policy is an important facilitating factor, if not a pre-condition, for an effective post-conflict reconstruction. On the contrary, the persistence of a multiplicity of uncoordinated national approaches in the post-TP phase could undermine the effectiveness of any future joint EU endeavour in the field of community reconstruction and post-crisis stabilization. Such risk would be more acute, the more MS would give preference to forcible repatriation. As a matter of fact, developments since Dayton seem to teach us a very uneasy lesson: while a voluntary returnee is most of the times a valuable resource in the reconstruction and stabilisation processes, a person who is forcibly repatriated will either turn very soon into a clandestine migrant, or become (at least in the short-medium term) an obstacle, and possibily an active opposer, of any sound community reconstruction[25].

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* Pubblicato in A. Missiroli, a cura di, «Coherence for European Security Policy», Occasional Paper n° 27, Institute for Security Studies, Western European Union (ISS/WEU), Parigi, maggio 2001.

[1] The concept of “refugee crisis” has to be specified. In an historical sense (similar to that used by Myron Weiner in its influential book about The Global Migration Crisis: Challenge to States and to Human Rights, Harper Collins, New York, 1995), it refers to the extraordinary increase in the numbers of asylum seekers received in Western Europe (4.468 between 1985 and 1997, of which 48% in Germany; see Eurostat, Patterns and trends in international migration in Western Europe, European Commission, Brussels, 2000, p. 6). In the context of this article, though, we will talk about “refugee crisis” in a more restricted sense, to indicate a massive, relatively sudden and generally unexpected influx of asylum seekers. With regard to this meaning of the expression, “refugee crises management” is typically an emergency policy.

[2] For an historical overview, see: United Nations High Commissioner for Refugees, The State of the World’s Refugees. 50 Years of Humanitarian Action, Oxford University Press, Oxford, 2000, available also on-line on UNHCR’s website (www.unhcr.ch/sowr2000/toc2.htm) .

[3] For an overview of the national responses, at different stages, to mass inflows from the former Yugoslavia, see: J. Van Selm, Refugee Protection in Europe: Lessons of the Yugoslav Crisis, Kluwer Law International, 1997; J. Van Selm-Thorburn, ed., Kosovo’s Refugees in the European Union, Continuum, 2000.

[4] For a comparative assessment of the two approaches, in the light of the current challenges, see for instance: United Nations High Commissioner for Refugees, Global Consultations on International Protection, Protection of refugees in mass influx situations: overall protection framework, EC/GC/01/4, 19 February 2001.

[5] Council Resolution of 25 September 1995 on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis, based on article K.1 of the Union Treaty; Council Decision of 4 March 1996 on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis, based on article K.3(2)(a); Council Joint Action of 26 April 1999 establishing projects and measures to provide practical support in relation to the reception and voluntary repatriation of refugees, displaced persons and asylum seekers, including emergency assistance to persons who have fled as a result of recent events in Kosovo, based on article K.3 of the Union Treaty; Commission proposal of 5 March 1997 for a Council Joint Action based on article K.3(2)(b) ot the Union Treaty concerning temporary protection of displaced persons, later (24 June 1998) split in two distinct proposals, which reflected the Council’s discussion and some of the EP amendments, focusing respectively on general provisions and on burden-sharing.

[6] COM(2000) 303 final, Brussels, 24 May 2000.

[7] Council Decision of 28 September 2000 establishing a European Refugee Fund (2000/596/EC).

[8] European Council, Tampere 15-16 October 1999, Presidency Conclusions, item 11.

[9] In the context of the ongoing reflection on "cross-pillarization" in the EU external action, there is a double-sided link between general crisis prevention policies and specific refugee crises prevention tools: comprehensive crisis management has to take into account migration management objectives (see the passage of the Tampere Conclusions quoted in the text), but also the opposite relation has to be guaranteed: “… the causes of a mass influx of displaced persons lie in events affecting the Union’s external relations, its common foreign and security policy and its security and defence identity. Community humanitarian aid is also involved. Upstream of any crisis the European Union has early-warning capacities and participates in measures to prevent and manage crises. In relation to Justice and Home Affairs in particular, the point is to boost the Union’s external action by incorporating these questions into the definition and implementation of other policies and actions. Temporary protection in the event of a mass influx thus becomes a component of a coherent and more and more efficient set of Union capacities for action, offering the greatest possible ability to tackle the causes of a mass influx and take crisis action through local measures or post-crisis action, notably in terms of returns” (European Commission, Proposal for a Council directive on minimum standards for giving temporary protection …, COM(2000) 303 final, Brussels, 24 May 2000, Explanatory Memorandum, par. 5.11., pp. 10-11). Similar concepts are expressed in more general terms in the Council Report on "European Union priorities and policy objectives for external relations in the field of justice and home affairs", submitted to the European Council meeting in June 2000:

"The JHA dimension should form part of the Union's overall strategy. It should be incorporated into the Union's external policy on the basis of a 'cross-pillar' approach and 'cross-pillar' measures. Once the objectives have been defined, they should be implemented by making joint use of the Community provisions available under the CFSP and those on cooperation laid down in Title VI of the TEU" (Council of the European Union, document 7653/00, Brussels, 6 June 2000, p. 4).

[10] Council of the European Union, 7653/00, Brussels, 6 June 2000, p. 2.

[11] European Commission, Communication to the Council and the European Parliament, Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum, COM(2000) 755 final, Brussels, 22 November 2000, p. 15.

[12] European Commission, Communication to the Council and the European Parliament, Towards a common asylum procedure and a uniform status …, cited above., p. 16.

[13] Last biannual update: COM(2000) 782 final, 30 November 2000, p. 10.

[14] G. Amato - T. Blair, The UK and Italy push for reinforced EU action in the fight against Balkans people trafficking, Observer on Sunday, 4 February 2001. On the same day, the article was published in Italian on “Il Corriere della Sera”.

[15] This is not the case in other Member States, such as Italy, where, due to the persisting lack of a comprehensive legislation on asylum, the degree of financial (or other forms of) public support to asylum-seekers is extremely low.

[16] United Nations High Commissioner for Refugees, UNHCR commentary on the draft European Union directive on temporary protection in the event of a mass influx, Geneva, September 2000, p. 4.

[17] Amnesty International, Amnesty International Response to the European Commission's proposal for a Council directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, 2000, p. 3.

[18] See J. Morrison, The Trafficking and Smuggling of Refugees. The End Game in European Asylum Policy?, Report produced for the UNHCR, Geneva, January 2000.

[19] United Nations High Commissioner for Refugees, UNHCR summary observations on the Commission Proposal for a Council Directive on temporary protection, Geneva, 15 September 2000, p. 3.

[20] United Nations High Commissioner for Refugees, Reconciling Migration Control and Refugee Protection in the European Union: A UNHCR Perspective, Discussion Paper, Geneva, October 2000, point 54, p. 21.

[21] European Commission, Communication to the Council and the European Parliament, Towards a common asylum procedure and a uniform status …, cited above., p. 9.

[22] Currently, negotiations are going on at COREPER level, under a strong pressure of the Swedish Presidency to reach a political agreement in the next JHA Council (May 2001).

[23] In order to avoid this voluntariness turning into arbitrariness, the draft directive provides that: “The Member States shall receive persons who are eligible for temporary protection in a spirit of community solidarity. They shall either indicate – in figures or in general terms – their capacity to receive such persons, or state the reasons for their incapacity to do so” [art. 25(1), emphasis added]. European Parliament amendments to the proposal have particularly stressed the need to restrain the Member States licence to refuse “physical solidarity”.

[24] Agence Europe, Bulletin quotidien N° 7925, 17 March 2001, PE/IMMIGRATION/ASILE: Le Parlement approuve, avec de amendements, la proposition de directive sur la protection temporaire des réfugiés, mais rejette les multiples initiatives des Etats Membres – M. Vitorino annonce des initiatives de la Commission, p. 14.

[25] Such lesson is obviously more difficult to learn and implement for countries carrying the heaviest refugee burdens. This is clearly shown by divergent national behaviours in the case of Bosnian refugees who did not adhere to voluntary return programmes. Whereas some EU countries have granted them permanent or long-term status (Denmark, Italy, Norway, Sweden), others (Germany, in particular) refused to do so and either deported them or granted (sometimes de facto) extensions of temporary protection. Such behaviour is openly criticised not only by UNHCR, but also by a country like the United States, which in Fiscal Year 2000 admitted 23,000 refugees from the former Yugoslavia (of which 12,000 resettled from Germany). The strategic divergence in return policies is particularly evident in the following passage of US Federal Government Report to Congress on “Proposed Refugee Admissions for Fiscal Year 2001”:

“… Germany has not granted permanent status to Bosnian refugees to date. These Bosnian refugees must therefore either seek third country resettlement or return to Bosnia although UNHCR continues to urge asylum countries, including Germany, to continue to provide temporary asylum to Bosnian refugees. This is particularly important for those who cannot yet return in safety and security to areas where they would be in the minority. […] We continue to urge countries which have provided temporary protection to support UNHCR’s comprehensive strategy on repatriation and returns, which includes continued protection for vulnerable ethnic groups, including many who came from areas where they would be in the ethnic minority” (the full report is available on the State Department website: www.state.gov/www/global/prm/admissions_resettle.html , pp. 13-14).