MEETING WITH NGOs PRIOR TO THE FIFTY-SECOND SESSION OF THE EXECUTIVE COMMITTEE OF UNHCR

26-26 September 2001

REGIONAL REFUGEE TOPICS

Palais des Nations, Geneva,

Tuesday, 25 September 2001 at 16h30-18h00

BUILDING BRIDGES FOR TOLERANCE

Statement on behalf of the European Council on Refugees and Exiles (ECRE)

by Areti Sianni, Policy Officer

It is pleasure to be here today and talk on the issue of building tolerance in Europe: a clearly timely topic in the event of recent developments. The European Council on Refugees and Exiles (ECRE) is a network of about 70 agencies across Europe. This presentation is made in our role as the PARinAC Focal Point for Europe excluding South Eastern Europe and the CIS.

In this statement, I shall focus on the process of building tolerance and in particular consider the role of asylum-related initiatives currently under way in the European Union in their impact on public perceptions and acceptance of refugees in Europe.

Over the past two decades, an increasing number of people from Africa, Asia and Latin America have sought asylum in Europe. Their arrival has often been seen as a rather disturbing phenomenon affecting receiving societies in profound ways. By contributing to changes in the composition of Europe's population at a time of mostly zero migration policies, asylum arrivals have raised difficult questions of collective self-identification. They have also raised controversial questions of national control. The rights' framework common to European democracies considerably constraints governments from taking action to halt the arrival of uninvited foreigners and effectively deport those not qualifying for entry. At a time, when the perceived loss of national control to supra-national bodies or the global financial markets has become the core of political debate in Europe, asylum has come to exemplify the sphere of public life that escapes political control. It is no surprise that it is now one of the key focal points of political controversy and public debate at national and EU level.

Since the signing of the Amsterdam Treaty, the European Union reflecting the determination of Member States to reclaim control over migration, has engaged in a process of establishing minimum asylum standards. Certain measures such as the directives on carrier sanctions, the prevention of the facilitation of illegal entry and on temporary protection have already been agreed while first drafts of some other key instruments are on the table.

What has been interesting is that these initiatives have often taken place against a backdrop of negative media coverage of refugee issues and increasing public intolerance. It seems that so far the EU's work on asylum has not had much impact on public and media perceptions of refugees. Does it though in the medium or long term, have the potential to contribute to the building of a political environment in Europe that is conducive to the protection of refugees? Can it stop the forces of xenophobia and racism from determining the tone and the parameters of public debate?

ECRE has long considered the development of a common European approach to asylum to be a question of fundamental justice if not of absolute necessity. As such, the various directives under discussion over the last two years have the potential to represent an important step away from the "protection lottery" currently in place in Europe. The new Directive on Temporary Protection has gone some way towards establishing the conditions for dealing with an emergency situation where individual refugee status determination is not immediately practicable and where the application of Temporary Protection will enhance admission to the territory. The Draft Directive on reception conditions contains a number of provisions that generally provide an adequate minimum standard of reception and basic rights for asylum seekers. The recently published draft on the refugee definition and the content of refugee status and complementary forms of protections contains positive clauses most notably including people fleeing persecution by non-state agents within the interpretation of the Refugee Convention. Notwithstanding these developments, key problems continue to underline the EU's work on asylum, cautioning against optimism in viewing it as a catalyst for change in building a welcoming environment for refugees in Europe.

Firstly, access to protection remains a key issue far from resolved. The new EU Directives on the prevention of illegal entry and on carrier sanctions both contain clauses, which aim at protecting those who act for humanitarian reasons from being criminalized. These clauses are, however, optional and do not place any obligation on Member States. Moreover, the problem remains that all measures directed at preventing illegal entry – strengthened border controls, visa requirements, carrier sanctions, and the like – effectively also prevent people with protection needs from accessing EU territory. Without any other option, people in need of international protection are forced to rely on smugglers and traffickers: the result being the de facto although not necessarily de jure criminalization of the act of seeking asylum. The recent announcement by the UK Home Secretary regarding measures to improve immigration controls and the proposed Council decisions to combat terrorism in the aftermath of the dreadful events two weeks ago in New York provide no scope for optimism.

Secondly, the question of European asylum harmonisation is yet to be settled. The draft directives on reception, asylum procedures, the refugee definition and complementary protection do provide some scope for standards convergence. However, ECRE doubts whether they will effectively bridge the differences that exist in national practice and do so in a way which is in accordance with international human rights law, international refugee law and the protection of refugees. On the contrary, preliminary evidence highlights the reluctance of Member States to accept the introduction of EU provisions that require substantial changes in their national legislation. During the search for a common agreement and eventual adoption of asylum directives by Member States, the risk remains of a considerable watering down of rights, the adoption of minimal rather than minimum standards precluding the fair and humane treatment of refugees, and as a result of the above, the continuing strengthening of public perceptions of refugees as the “great undeserving”.

Thirdly, the question of integration of those recognised in need of international protection is also far from fully addressed. Through a range of initiatives over the last few years, with the latest being the European Refugee Fund, the EU has made considerable progress in promoting refugee integration as a dual process involving both receiving societies and refugees and their communities. This work is highly commendable. Notwithstanding, ECRE believes that there are still considerable barriers to the full integration of refugees into European societies. To start with, refugee integration is closely related to the quality and length of the asylum determination procedure and the conditions of reception. With regard to the former, ECRE has serious concerns whether the proposal for a directive on asylum procedures currently on the table will address all the features of today's national asylum procedures which have been most sharply criticised by NGOs. These include most notably: the detention of asylum applicants; re-enforcement of the concepts of "safe third country" and "safe country of origin"; border procedures; and the operation of accelerated procedures with insufficient safeguards to prevent refoulement. With regard to reception conditions, ECRE is also concerned about certain provisions of the draft Directive on reception that allow for restrictions in the rights of asylum seekers to freedom of movement and access to the labour market and vocational training and leave far from resolved the question of financial support to those applying for asylum.

Further, integration is closely related to legal status granted to persons in need of international protection. At present, most EU countries have low recognition rates and grant inferior legal statuses to persons not falling within an often limited or even restrictive interpretation of the 1951 Convention definition. These statuses entail limited socio-economic rights. The new draft Directive on the qualification and status of third country nationals as refugees goes some way towards addressing key NGO concerns with regard to status determination by including non state agents among the potential sources of harm and persecution of Convention refugees. It also includes a range of positive rights for people granted subsidiary protection status that are at the same standard to those accruing to Convention refugees. Certain provisions however still cause concern. With regard to status determination, of particular concern is a clause referring to the possibility of "state" protection from persecution being provided by international organisations and stable State like authorities. ECRE has long argued that stable State like authorities are not bodies that are subject to international law and therefore cannot be parties to international human rights instruments nor be the subject of inter-state disputes. From an integration perspective, of particular concern are the provisions relating to the duration of residence permits and restrictions with regard to access to employment, employment related education and integration facilities for persons granted subsidiary forms of protection.

Over the last years, a number of media outlets and political parties have repeatedly expressed the opinion that Europe is under threat from "floods" of refugees. Existing violations of the 1951 Convention Relating to the Status of Refugees and of refugees' human rights show that the reality in Europe is that it is refugees who are under threat and not asylum states. How can this trend be reversed? What strategies should be put into place to facilitate the creation of a welcoming environment for refugees?

First of all, there is a need to reconcile States' right to control their borders with the internationally recognised right to seek asylum and the need of refugees to access an asylum procedure. The EU must look into possibilities of providing alternatives to illegal arrival and stop the de facto criminalization of asylum seekers. In this vein, ECRE has called for a collective EU commitment to establish and maintain annual resettlement quotas for refugees from other regions into all Member States to assist UNHCR's resettlement scheme.

Secondly, there is a need for a common EU asylum system that is protection-centred firmly committed to the safeguarding of human rights and oriented at best State practice. In our view, European harmonisation measures to create such a system should include the following core elements: a uniform, full and inclusive interpretation of the refugee definition; a harmonised complementary protection status in Europe to protect those people whose reasons for flight are beyond a full and inclusive interpretation of the Refugee Convention but who nevertheless require international protection; one single procedure to deal with all requests for protection; adequate conditions of reception which embrace more than just non-refoulement and the supply of the most basic needs; and an expressed effort to tackle root causes of flight and forced migration in the countries of origin. We believe that a protection-centred asylum system is essential for rebuilding not only public, but also refugee confidence and trust in asylum, both being necessary prerequisites to the creation of tolerant and inclusive societies.

Finally, building tolerant societies is not a matter for governments and EU institutions alone. There is a need for partnership. Partnership with non-governmental organisations and UNHCR given their role in advocating on behalf of refugees and in the case of NGOs, providing specific information, reception, legal advice and integration services. Partnership with media outlets in their role in shaping public opinion. And partnership with refugees to ensure that their voice and concerns are taken into consideration and their skills, knowledge and resources are fully utilized. Thank you.

AS/25 September 2001