Intervention at the Cicero Foundation
Paris, 15 february 2001
Véronique Planès-Boissac
Forum réfugiés
Member of ECRE
First of all I would like to thank the Cicero
Foundation for the invitation to the European Council on Refugees and Exiles
(ECRE) to participate in this conference and for providing ECRE the opportunity
to contribute to the general debate on the perspective of the refugee
protection in the light of the implementation of the Amsterdam Treaty.
ECRE is a non-governmental umbrella
organisation of some 70 agencies from 25 countries throughout Europe concerned
with assistance and protection of refugees and asylum seekers in Europe. ECRE
campaigns on behalf of its pan-European membership for humane and fair asylum
policies. It also works towards establishing the highest standards of refugee
protection and assistance in Europe.
As a staff member of a French refugee assisting
NGO in charge of European affairs, I can see that even if European
harmonisation in the field of asylum is quite a medium or even long-term
perspective, we should not underestimate the immediate practical effect most of
the European initiatives and negotiations have on national policies and legislation
especially since the speeding up process of harmonisation in the framework of
the Amsterdam Treaty. Also Eastern and Central European States aiming to join
the European Union (EU) in the enlargement process are already adapting their
legislation to mirror EU asylum standards.
Our concern is that this process of
harmonisation safeguards refugee protection in Europe and we must be very
vigilant about the current developments.
The Amsterdam Treaty, while transferring the
issues relating to asylum and immigration to the first pillar (community
competences) creates an imperative for member states to develop a series of
Community instruments within a given timeframe which will govern the lives of
many millions of migrants, asylum seekers and refugees.
We can see both opportunities and threats in
this process.
The first risk would be that agreements and pieces of
“soft law” adopted under the third pillar (Maastricht Treaty) or
even before in a very obscure way by different ad hoc groups and committees are
the basis for EU legislation without serious reconsidering of the content of
those resolutions, recommendations, etc…and in a spirit of the
“lowest common denominator” reinforced by the unanimity voting procedure. ECRE is deeply
concerned that in the process of developing a common European asylum system,
standards will be discarded in order to achieve harmonisation.
The second challenge is the question of
democratic accountability in the framework of the Amsterdam Treaty. Indeed the role of the
European Parliament and even of the European Commission especially during the
time of semi-community activities is quite limited or constrained. We must
acknowledge that a positive role can be played by the European Parliament even
if its role is only consultative (at least its consultation is now compulsory).
ECRE also urges member states to allow expert NGOs, UN bodies and other
relevant international organisations to fulfil their consultative role by
transmitting all relevant documents well in advance of final council decisions.
The German Presidency followed by the Finnish Presidency did so, for example,
as is willing to do as well the Swedish Presidency.
There is a huge potential and challenge for the
civil society to play a vital role in monitoring and contributing to the
development of the Community instruments. Its role has been legally recognised
in Declaration 17 of the Amsterdam Treaty relating to consultation with UNHCR
and other international organisations. This role has been already actively
played by those actors and as a matter of fact by ECRE during a Tampere
Parallel Summit. This Parallel Summit, organised by ECRE, gathered some 300
participants and was taking place during the European Council negotiations in
Tampere. When the Summit conclusions came out, ECRE broadly welcomed them and
the Finnish Prime Minister referred to ECRE’s positions both at the
closing official press conference as well as later at the EP. He quoted ECRE in
stating that “in many respects Tampere was a step away from Fortress
Europe”. However ECRE reaffirmed that it would need to remain vigilant as
to the implementation of the Tampere Conclusions.
Indeed the Tampere Summit gave a very good
political impetus for the development of a European asylum system which would
safeguard refugee protection but guarantees are crucial “as the best
asylum policy in the world is no use unless refuges can access its
protection”.
Let’s recall the main Tampere
commitments:
-strong reaffirmation by the Council of the
right to seek asylum
-emphasis on the need to apply the 1951
Convention fully and inclusively
-intention to move beyond minimum levels of
harmonisation and to aim for a common system both in terms of asylum procedures
and, eventually, a uniform refugee status
The protection of refugees is not merely a
matter of legislation in conformity with human rights and refugee law standards
but also of state practice. As a matter of fact, all EU member states are
signatories of the 1951 refugee Convention and of the European Convention on
Human Rights and other human rights instruments but there are nevertheless
problems of protection. We are concerned that the process of harmonisation of
asylum regimes in Europe may undermine the international regime for the
protection of refugees.
This is what I will try to underline while
going in some details into the content of the current European asylum proposals
and initiatives.
The Amsterdam Treaty, the Vienna Action plan,
the Tampere conclusions, the scoreboard, place all decisions on
responsibility-sharing, a new Dublin Convention, temporary protection,
procedures for deciding who is a refugee, etc, before a harmonised
interpretation of the Geneva Convention. The irrationality of this approach and
timetable needs no explanation.
In my presentation, I will try not to follow
the chronological order of the subjects as they are coming on the EU agenda but
rather as they come on the route of an asylum seeker trying to escape
persecution and reach Europe. This approach raises questions of protection at
different levels (that often overlap but that we can divide in 4 main parts):
1. Access to the territory
2. Access to determination procedures
3. Access to protection
There have been repeated and various attempts
to prevent refugees form leaving their place of persecution and to prevent them
from accessing protection, through visa regimes, carriers’sanctions,
so-called “safe third country” practices and
“regionalisation”of refugee protection by designation of
“safe havens”. ECRE can see no point to the creation of a model
asylum system in Europe if refugees are simply to be denied the opportunity to
access it.
There are many elements in a strategy of border
controls and the
recent French Presidency has been particularly active in tabling initiatives in
this field. The objectives of combating trafficking and smuggling are
essential. They should however be secondary to the States’commitment to
upholding human rights and the Refugee Convention. Measures to control
immigration must not interfere with the individual’s right to asylum.
Those measures have led to the containment of potential refugees inside the
country where they are persecuted and have made it impossible or extremely
difficult for refugees and other persons in need of protection to apply for
asylum. The growth in trafficking of people is a direct result of barriers. A
recent report published by UNHCR underlines that “the main nationalities
that are being smuggled and trafficked to Europe in order to claim asylum are
those very same nationalities that are recognised as refugees by European
countries themselves”. It is very important that any measure taken to
combat irregular migration and trafficking makes a clear distinction between
punishing the traffickers and protecting the victims (often refugees). Article
31 of the Geneva Convention was drafted in recognition that the refugees who
escaped Nazi persecution had relied on traffickers and illegal routes. To enter
illegally implies nothing about the credibility of an individual’s claim
to need asylum and efforts to assist asylum seekers entering illegally need to
coexist with efforts to control migrant trafficking. Also in accordance with
article 31, detention should never be based solely upon an asylum
seeker’s illegal entry or irregular residence on the territory and claims
from irregular entrants should never be classified as “manifestly
unfounded” solely for that reason.
The tendency is also to “export”
border controls with the increased recourse to immigration officers in the
countries of origin and to “privatise” migration controls by
transferring the responsibility to private transport companies.
All those different deterrent measures are
combined in the different French proposals and they contain many shortcomings
that we hope will be deleted in the definitive versions. Objections by many
member states during the negotiations show that a consensus is fortunately not
yet reached and we hope that the rights of refugees and asylum seekers will be
protected by the incorporation of a “savings clause” and by a
provision protecting the work of the organisations that assist asylum seekers
and refugees out of purely humanitarian motives.
Other aspects of European developments can be seen as presenting potential threats to the access to the territory such as the work undertaken in the framework of the High Level Working Group on asylum and migration (HLWG). ECRE welcomes this EU cross pillar approach to migration and asylum policy. However we consider that this potential will not be realised if the working group’s sole objective is to curb the arrival of illegal migrants to the EU and its approach to the agenda is primarily control-oriented. The approach should be protection-oriented and human rights based. Part of the brief of the HLWG is to look at proposals on the “assistance in the reception of displaced persons in the region” of origin. This puts an heavy burden on those regions and is often a way to escape from our responsibility as “rich” reception countries. In addition, there are many difficulties of implementation , e.g. the lack of effective dialogue with the countries tackled (particularly Afghanistan, Iraq, Somalia). The focus on tackling the root causes of migration is definitively essential but it is a long term perspective that requires co-operation with all the national governments, international organisations, NGOs….In addition, the action plans develop no real strategy to address effectively human rights violations.
Once the asylum seeker has been able to reach EU territory, he might encounter many difficulties in lodging an asylum application in European countries and he is in any case not sure that he will have access to a “fair and efficient” asylum procedure.
First of all, this question is raised in the
framework of the Dublin Convention. This Convention will be transposed into a 1st pillar
instrument and the European Commission has already submitted a staff working
paper on this subject. We believe
that this is time for reconsidering the Dublin Convention’s whole
“raison d’être” after a full and fair evaluation. As I
said before we believe that harmonisation of both substantive law and procedures
should be a prerequisite for the fair implementation of Community legislation
replacing the Dublin Convention.
Any European Community legislation replacing it
should:
-respect family unity of applicants and ensure
the reunification of separated family members;
-address the failure of its predecessor to
provide for the socio-economic rights of asylum seekers awaiting a decision
under its terms;
-provide all asylum seekers with a suspensory
right of appeal against a decision to transfer the application to another MS;
-remove the “safe third country”
concept which can potentially lead to refoulement ;
-establish greater transparency with regard to
procedure and decision.
The current Dublin Convention, linking
allocation of responsibility for examining an asylum application with
responsibility for controlling entry to the territory, is not working.
Of the 4 alternatives proposed by the
Commission, ECRE would favour a system based on allocation of responsibility
according to:
-where the asylum seeker has a family member,
provided s/he agrees;
-where the asylum application is lodged.
This system would be clear, workable and
effective. Importantly, it also meets the criteria of a system that is fair and
humane for asylum seekers. So it is in the interests of both member states and
asylum applicants.
Finally, if asylum seekers have access to
the procedures, access to a fair and efficient determination procedure is not
ensured. The
question of procedure is absolutely essential.
After a comprehensive working paper published
in march 1999, the Commission has recently submitted a proposal for a directive
on minimum standards on asylum procedures (sept. 2000). This proposal is the
first step towards a common European asylum system as foreseen in the Tampere
conclusions. The aim is to establish minimum standards at community level for a
simple and quick system in which refugee status is granted or withdrawn. The
aim of reducing the duration of asylum procedures is a good aim but this should
not be made at the cost of removal of legal safeguards which may put applicants
at risk of refoulement.
There are some positive aspects especially
because it provides for some procedural guarantees (information, interpreter,
interview, contact with UNHCR and NGOs,….). However many concerns can be
expressed. Some of the major shortcomings are the use of concepts such as
“manifestly unfounded” claims, “safe third country”,
“safe country of origin” or “accelerated procedure”.
Generally there is too much room for
“opting out” and too much discretion for member states in the
proposal. Also the right to legal assistance at all stages of the procedure for
all asylum seekers is not included.
Even if the proposal ensures the same treatment
regardless of if the application is lodged at the border or within the
territory, this provision does not provide legal access to the territory.
Another worrying aspect is the fact that
deportation is possible although no final decision is taken in case of
“safe third country”. We believe that the practice of “safe
third country” by some member states should be stopped by the EU.
According to UNHCR, “the question is whether that country is safe for
this asylum seeker and is not a “generic” question which can be
answered for any asylum seeker in any circumstances”. Certainly it seems
timely to reconsider the low standards of safety currently applied to third
countries by several member states (at least, the following should be
guaranteed : not return asylum seeker who have family ties in the country, not
return asylum seekers to states which do not fully implement the provisions of
the 1951 Convention, not return asylum seekers to states without prior
guarantees that the state will allow applicant access to a fair and efficient
refugee determination procedure, inform the applicant in a language s/he
understands, provide the applicant with an effective opportunity to appeal
against the deportation order…).
Similar concerns can be expressed with regard
to the safe country of origin concept. Governments should never resort to
applying the notion of safe country of origin in a way which effectively
excludes certain nationals from having their asylum claim examined.
Another worrying element in the proposal is
that it allows member states to derogate from suspensive effects of appeal in
the case of application of the safe third country concept and if the
application is manifestly unfounded.
These concepts of manifestly unfounded and
accelerated procedures are also of concern. The definition given in the
proposal is extremely broad. The future directive must ensure that all
procedures including accelerated procedures respect the minimum standards for
fair and efficient asylum procedures under international law which are
described in the proposal.
The proposal contains also special safeguards
for unaccompanied minors. Those are of the outmost importance and should be
even strengthened in reaffirming the obligation of member states not to
maintain minors in waiting zones and to give the benefit of the doubt to the minor
in case of uncertainty about his/her age.
After consideration of the aspects of access to
procedures, the main question to examine is the question of access to
protection. This is the core of the protection system for refugees in Europe
and where the main challenges are. Indeed if refugees gain access to a
“fair and efficient asylum procedure” as examined before,
protection based on the Geneva Convention may not be ensured. This is the true
test of the commitment of member states to the “full and inclusive
application of the Geneva Convention” as stated in the Tampere
conclusions:
This question relates to the application of the
Geneva Convention, the development of subsidiary forms of protection, the
concept of temporary protection and the reception conditions.
There is a protection lottery in Europe based
mainly on the fact that several European states adopt a narrow interpretation
of the refugee Convention which, in our view, is often not legally correct. In
addition, many countries even very recently have questioned the continuing
relevance of the Geneva Convention.
The Refugee Convention is the redress mechanism for human
rights violations and has been successfully invoked in the protection of
millions. It remains the only internationally agreed and binding definition
guaranteeing protection from serious harm.
We believe that it is not the role of the EU
nor any other regional body to define who should qualify for protection under
the 1951 Convention. This is in the supervisory role of UNHCR. The EU should
accept the Universal UN standards on interpretation of the refugee definition
as sufficient minimum standards and, based upon evolving jurisprudence, should
elaborate upon these standards within the forum of UNHCR. In this field, we
hope that the 1996 EU Joint Position on the harmonised application of the
definition of the term “refugee” in article 1 of the Geneva
Convention will not be transposed as it stands into European Community
legislation (which is foreseen by 2004 at the earliest).
Specifically, any new instrument should accept
that a person who risks persecution by non state agents, even when the state is
willing but simply unable to control these agents, may qualify as a refugee.
This would ensure protection to many refugees fleeing from countries where the
central government is losing or has lost effective control of its territory.
Another threat to the full application of the
Geneva Convention is the Protocol to the Amsterdam treaty stating that member
states should be regarded as safe countries of origin in respect of each other
thus limiting the right of asylum of EU nationals in the EU. This is the most
notable failing of the Treaty in the area of asylum. It constitutes a
geographical limitation to the implementation of the Geneva Convention despite
the fact that all member states are signatories of the 1967 Protocol. The
worrying fact is that article 18 of the Charter of Fundamental rights adopted
recently refers to the Amsterdam Treaty therefore to this Protocol as well.
In the long term, as EU enlargement and
political agreements move outwards, the consequences of an approach based on so
called safe countries will be to squeeze the viable “asylum space”
in the world continually down to size. There have been many references to such
concepts recently especially in a proposition presented by Jack Straw who
proposes a system with 3 categories of countries of origin: high risk,
intermediate and safe as a basis of the way in which asylum applications from
nationals of those countries could be treated by member states. This is
contrary to international human rights standards and impractical (for political
and economic considerations).
The situation regarding the granting of complementary
forms of protection
is even more complex. One thing which is common to nearly all EU states is that
complementary forms of protection are increasingly preferred to recognition of
refugee status.
A supplementary refugee definition to protect
only those who fall beyond a correct and extensive interpretation of the 1951
Convention definition may be legitimate in the EU regional forum. Indeed this
is an important and urgent task for the EU. In operational terms, we recognise
that each EU state should offer a single determination procedure to all persons
seeking international protection and then determine the status as appropriate.
Plus, in order to promote social coherence and
prevent social exclusion, there needs to be broad parity of social, economic,
cultural and civil rights between Convention refugees and those afforded a
complementary form of protection. The concept of “protection” does
not mean merely the suspension of deportation; it involves the enjoyment of at
least certain basic rights.
The question of complementary forms of protection
is to be clearly distinguished from temporary protection. Temporary protection is an
emergency measure to deal with sudden large scale arrivals and complementary
forms of protection are granted to applicants a the result of a determination
procedure. Temporary protection is a device for protection without an
individual procedure.
The question of temporary protection has
evolved recently after many years of disagreements among member states.
Definitive agreement is not found yet and we are probably far from it but the
recent Kosovo crisis has urgently put the question on the EU agenda. The
Commission has tabled a proposal on the subject and the French Presidency a
note. We believe that any future instrument developed to harmonise temporary
protection must ensure that it respects the 1951 convention in particular with
regard to granting access to determination procedures. A big problem in the
negotiation concerns responsibility sharing. ECRE believes that financial
solidarity schemes are, as a general rule, preferable to measures which involve
the physical redistribution of persons (obstacles of family unity, cultural,
historical and linguistic links. On this, at least, an agreement was found
among member states on a budget line through the European Refugee Fund. This is
a first step in the right direction.
The last element that needs to be commented in
the field of access to protection is the question of reception conditions of
asylum seekers.
This question is high on the EU agenda and the French Presidency has submitted
a note on this subject. The Commission has issued a discussion paper and is
expected to submit soon a proposal for a Community instrument.
At present several member states not only deny asylum seekers access to the means to secure legal advice and representation but also limit their freedom of residence, limit social security payments, limit access to other than emergency health care and access to education.
ECRE strongly believes that the EU’s
legal instrument on minimum standards for reception conditions should be
applicable to all applications for protection (Geneva Convention and under
other forms of protection) and should remedy the above mentioned limitations.
In particular, as a general rule, asylum seekers should not be detained. If
asylum applicants are detained at border, sea or airports, they should be
provided with all necessary assistance, including food, shelter, effective
access to legal advice and representation, qualified interpreters, medical an
sanitary services.
In addition, EU member states have a legal
obligation to ensure all asylum applicants have accommodation from the time of
arrival and throughout the procedure.
Concerning the means of subsistence, ECRE is
opposed to the use of vouchers as they stigmatise and humiliate asylum
applicants. Social assistance should be received as money sufficient to cover
basic needs and within reasonable time.
Finally, ECRE strongly believes that asylum
seekers should benefit from access to the labour market of the host state at
the earliest possible stage and at the latest after 6 months following the
lodging of an asylum application. This is in the interests of both member
states and asylum applicants.
Last but not least, we have talked a lot about
the protection of asylum seekers but we should not forget that a good
protection system in Europe should also pay attention to refugees once they are
recognised as such in member states.
This raises the issue of integration. The main
issues at stake in this area are at the moment the question of free travel of
refugees and the question of family reunion.
The question of the right of 3rd
country nationals to travel in the EU should be solved as soon as possible in the
framework of a directive and the right of refugees to travel, reside and work
in the EU should be recognised without any limitation.
The question of family reunion is the subject of a recent
Commission proposal. The main problem remains with the scope of the future
Community instrument. ECRE believes that it should be applicable to both the
Conventional refugees and the beneficiaries of complementary protection and
they should have immediate access to the right to family reunification upon
status determination.
They should be exempted from meeting any
eligibility requirements for family reunification relating to the length of
residence, employment status and access to appropriate housing and independent
income of the principal applicant.
The right to family reunification should not be
limited to nuclear family members.
Members of the same family should have the
right to be together during the asylum procedure when they were forced to apply
for asylum in different countries.
The right to family unity of persons under
temporary protection should be respected.
Each state should legally adopt and implement
procedures for the fair and efficient processing of family reunification
applications.
Family reunification should take place with the
least possible delay and within a period of 6 months from the time an
application is made.
The absence of documentary proof of
relationships should not affect the credibility of the application for family
reunification nor result in the application being considered fraudulent.
Family members of the applicant should have
access to the same socio-economic and other rights as the applicant.
Well, I hope you had a quite comprehensive
approach of all the issues at stake with regard to the safeguard of refugee protection in the process of
European harmonisation. There is still much to be done to fully guarantee
refugee protection in Europe. The current Swedish Presidency of the EU seems to
have a positive input in this debate and seems determined to raise the
standards of protection rather than lowering them. They will be a lot of energy
and conviction to counterbalance negative tendencies of some states.
The European Council in December 2001 assessing
the progress made will be an important occasion to measure the level of
commitment and sincerity of EU member states in translating into concrete
measures the policy guidelines laid down in the Tampere conclusions.
Thank you.