1 June 2001
UNHCR Public Information Section
Earlier this week, in Brussels, the European Union Ministers of Justice and Home Affairs (JHA) took an important step forward in the process of harmonising asylum in the European Union, by agreeing on a European regime of temporary protection in the event of a mass influx of displaced persons. UNHCR is in agreement with almost all aspects of this Directive. The JHA Council of Ministers also agreed on measures aimed at controlling undocumented arrivals into the European Union by imposing stiff sanctions on individuals and groups facilitating such arrivals. While UNHCR appreciates the need to prevent and combat human smuggling and supports positive initiatives in this respect, it is essential that any such measures be administered with sensitivity and flexibility, lest they inadvertently obstruct refugees and asylum-seekers from reaching safety.
The Directive on temporary protection adopted by the JHA Ministers on Monday is the first substantive legal instrument of the developing common European asylum system. The Amsterdam Treaty that came into force in May 1999 gives the EU five years to develop common asylum legislation binding on its Member States.
The Directive on temporary protection is a major step towards a harmonised treatment of refugees and other persons arriving in a mass influx and in need of international protection. UNHCR is in agreement with almost all aspects of the Directive. In particular, UNHCR welcomes the recognition that temporary protection is not an alternative to refugee status under the 1951 Convention, but only a practical device aimed at meeting urgent protection needs during a mass influx situation until the individuals concerned have their asylum requests determined on a case-by-case basis.
The Directive states that UNHCR must be consulted on the establishment, implementation and termination of the regime of temporary protection. UNHCR welcomes the incorporation of a number of basic protection principles in the Directive, such as the reunification of separated family members. The Directive also provides for basic standards of treatment and affirms the essential role of solidarity among Member States in addressing the problems posed by large-scale influxes.
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The JHA Council also reached agreement on two legislative initiatives introduced by the French EU Presidency last year. These measures are aimed at preventing and counteracting the unlawful entry or residence in the European Union of third-country nationals by imposing a maximum jail term of eight years or more for individuals and groups who facilitate such illegal entry. UNHCR fully supports the efforts of States in combating criminal and organised smuggling of persons across international borders.
UNHCR’s concern, though, is that there may be many genuine asylum-seekers who have no viable way of reaching safety without resorting to the services of smugglers. Therefore, the legislative measures adopted by the EU Ministers need to strike a proper balance between the repression of criminal smuggling and the protection of humanitarian interests and values. This was achieved at the global level with the adoption in Palermo in December 2000 of the United Nations Convention against Transnational Organised Crime and its two additional Protocols. One principal problem with the Directive adopted by the EU Ministers is that it defines the offence of migrant smuggling differently from the Palermo Protocol. The inclusion of a “humanitarian clause” – which is not even mandatory but left to the discretion of each Member State – does not, in UNHCR’s view, sufficiently address the protection needs of refugees or the inconsistency between EU legislation and international law.
Agreement was also reached at the JHA Council on harmonising carrier sanctions – the term used to describe penalties against transport companies for carrying undocumented or inadequately documented persons into an EU country. UNHCR’s position is that companies should not be penalised for transporting people who are seeking international protection from persecution. A refugee may be forced to resort to forged documents in order to escape to safety. In fact, cases in which a refugee can request and obtain a national passport from the same authorities that are the cause of the refugee’s fear of persecution are the exception rather than the rule. Even if a refugee is able to obtain a national passport surreptitiously, securing the entry visa of an EU country is virtually outside the realm of possibilities. Therefore, the adoption of such sanctions without adequate exemptions for carriers in the case of refugees in need of international protection risks undermining the refugees’ ability to seek and enjoy asylum.