Update on EU asylum, migration and other related matters


January – December 2001



All documents referred to in this paper are available upon request from RO Brussels.




15   Swedish Presidency



1.1  In the asylum area, the Swedish Presidency managed to broker political agreement on the draft Directive on Temporary Protection. Its priority on the migration agenda, family reunion, did not materialise in the adoption of the relevant Directive. The Presidency organised an informal Justice and Home Affairs Council in early February to discuss inter alia the  process of harmonising asylum policy and the Commission proposals for the second stage of asylum harmonisation as laid down in its November 2000 Communication. It invited the High Commissioner to address this informal Council.


15.1 During the Swedish Presidency, the Schengen Implementation agreement entered into force in the Nordic countries. A Community Regulation including a common list of countries where a visa is required to enter any EU Member Sates, as well as a list of visa-exempt countries was adopted (Romania would remain under review until end of the year). Political agreement was reached on a draft Directive aimed at harmonising Member States' carriers liability laws, as well as on EU/EC legal instruments aimed at harmonising and strengthening Member States' anti-smuggling laws.  The Presidency put special emphasis on the need to improve the exchange and analysis of migration and asylum data and devoted a special SCIFA and expert meeting to the issue in early April.  Generally, it  took seriously the need to review the working methods in justice and home affairs particularly in Third Pillar issues (co-operation in penal law and police matters) which culminated in the adoption of the "Haga Slott" conclusions.


15.2As for the work of the High Level Working Group on Migration and Asylum, the Swedish Presidency undertook strenuous efforts to take the implementation of its Action Plans decisively forward, yet was faced with a number of political, technical and institutional obstacles. Nevertheless, dialogue with countries of origin and transit, and the co-ordination between conflict prevention (a Swedish Priority as part of the Common Foreign and Security Policy), development and migration policy measures were strengthened. The Presidency was also supportive of the submission of proposals by international organisations, including UNHCR, aimed at implementing relevant parts of the HLWG Action Plans under the newly established Commission budget line.


15.3The Swedish Presidency was instrumental in raising the asylum issue of the enlargement agenda. It organised the first Ministerial JHA Council session on the issue (as well as on trafficking, the other priority item of the Presidency's agenda on justice and home affairs in the enlargement context). During the Swedish Presidency, the EU also started internal negotiations on the EU position on chapter 24 (Justice and Home Affairs) and completed country reports on Estonia, Malta and Poland in the Collective Evaluation Group. The Presidency organised a Regional  meeting of Justice and Home Affairs Ministers in Sarajewo in March which ended with the adoption of a Declaration putting the need for asylum capacity-building in the Western Balkans upfront. During the Swedish Presidency, the regular Transatlantic EU- USA Summit resulted in the adoption of a declaration which included a substantial part on asylum and migration, a first of its kind.


15.4In addition to the expert seminar on statistics, the Presidency organised a seminar on  children in armed conflict and displaced children  during which Commissioner Vitorino reaffirmed the Commission's undertaking to incorporate a child rights perspective into any relevant forthcoming legislative proposal on asylum and migration. Another seminar was organised on International Protection within a Single Asylum Procedure (Norrkoping, 23/24 April 2001) which was attended by Member States, candidate countries, delegations from the USA and Canada, academics,  a few International Organisations among which UNHCR, and NGOs (ECRE, AI). Gender issues, non state agents of persecution, subsidiary form of protection and the single asylum procedure were the main subjects of discussion. Substantial background papers and contributions were prepared by academics and experts. The Seminar was meant to provide inputs into the Commission drafting of  the directive on refugee definition and subsidiary forms of protection which was issued on 12 September 2001. Outside the context of the Presidency, but of relevance to the work of UNHCR, was the  Swedish seminar  on Resettlement (Norrkoping, 25/26 April 2001).



16   Belgian Presidency


2.1 During the Belgian Presidency, taking place in the second half of 2001, no asylum or migration instruments were adopted in Council. In the area of justice and home affairs, this Presidency was marked by negotiations on policies and instruments in the area of security and the fight against terrorism following the events of 11 September, the issue of migration (with a major Ministerial Conference as highlight) and border control (inter alia High Impact operation at borders of applicant countries).  In the asylum area, the Belgian Presidency undertook concerted efforts to take the discussions on the draft Directive on asylum procedures forward by identifying a number of  major controversial issues. It submitted a set of draft conclusions to the Council in an effort to obtain Ministerial guidance to bring the negotiations on these key issues a decisive step forward. In the migration area, the Presidency proposed a compromise on the outstanding problems concerning the draft Directive on family reunion but this met  with a German veto. 


16.1In the area of organised crime, terrorism and material criminal law generally the Belgian Presidency  managed to obtain political agreement on a draft instrument combating human trafficking, and to take the discussion on the principle of harmonising sanctions in criminal law forward - by identifying the available options, including the setting of minimum levels of maximum penalties. It also succeeded in adopting a number of instruments strengthening Member States' co-operation in combating terrorism, the freezing of assets of terrorist groups, and adopting a list of terrorist organisations and individuals. In addition, the Presidency managed to obtain agreement on the European arrest warrant which should simplify the surrender mechanisms between Member States.


16.2The Belgian Presidency was less successful in taking the work of the High Level Working Group on Migration and Asylum forward. In a contribution to the Ministerial Migration Conference it drew attention to continuing difficulties inter alia in mainstreaming migration issues in development co-operation and in forging a meaningful partnership with countries of origin and transit. It stressed the risks of  focusing too much on repressive measures in capacity-building and neglecting the main roots of migration and refugee flows. It suggested to further develop the notion of co-development by enhancing the role of migrants themselves and improving the co-ordination of initiatives, preferably to be undertaken in a decentralised manner through civil society, the private sector, enterprises etc. First decisions for Community funding of projects linked to the six Action Plans under the newly established budget line were taken during the Belgian Presidency.


2.4 A Presidency Conference on Migration took place in Brussels on 16/17 October. This event  provided an opportunity for an in-depth political debate on the issue and was instrumental in creating a consensus around the ideas put forward by the Commission in its November 2000 Communication for the development of a European approach to migration. The Conference was also meant as an important preparation for the Laeken Summit tasked to review progress made in the implementation of the Tampere milestones.  The Conference focused on four themes each of which was presented by a panel of Ministers from Member States, candidate countries, third countries and international and European organisations. These themes related to immigration policy and its management; prospects for a common policy on economic migration; partnership with countries of origin; and integration of migrants. While the Conference did not bring many new insights, it was significant that so many Ministers attended this political event and accepted that there is a clear need to develop a global, balanced, transparent and effective approach to the management of migration. Without wanting to create a fortress, delegates focused a lot on the illegal and crime-related aspects of migratory flows, yet called to respect the values underpinning States' asylum  systems  and the need for improving their implementation.


2.5 As regards enlargement, the justice and home affairs chapter (no. 24) was opened with the remaining candidate countries (except Romania and Turkey) and the negotiations on this chapter were closed with Cyprus, Slovenia, Hungary, and the Czech Republic by the end of the Presidency,  depriving UNHCR and other actors from a significant tool and lever to improve the  asylum standards, policies and practices in candidate countries in the period 2002 and beyond. The Presidency sent missions to Albania, Croatia, Bosnia and Herzegovina and the FRY as a follow-up to the March Sarajewo Declaration in justice and home affairs, and organised, together with the Commission, a meeting of senior officials on migration through the Western Balkans in Belgrade on 30 November.

2.6 The Belgian Presidency ended with the Laeken Summit which adopted a Declaration on the future of the European Union, and agreed to the establishment of a Convention to pave the way for Treaty reforms in 2004 (chaired by former French President Giscard d'Estaing, assisted by Belgian and Italian ex-premiers Dehaene and Amato). The Summit named officially the ten countries that are on the course to join the EU in 2004 (all applicant countries except Romania, Bulgaria and Turkey, as regards the latter still no date has been named for the start of accession negotiations) and quarrelled over the seat of a number of new European agencies  without reaching an agreement (including an Asylum and Migration Observatory for which Athens was designated by the Presidency). An important  agenda item for the Laeken Summit was the review of the implementation of the Tampere Conclusions of 1999 in the area of justice and home affairs. This exercise was meant to take stock of progress made and provide the necessary impetus to the negotiations on number of important dossiers, including in asylum and migration. The Laeken Summit reaffirmed the commitment to the policy guidelines and objectives defined at the Tampere Summit and the need to complete the common asylum  and migration policy in the short term. It mentioned a number of specific asylum and migration dossiers on which progress must be made urgently.  Yet the Summit stopped short of commenting on the quality of this policy and the level of standards on which it is to be built. The Conclusions, moreover, include some ambiguous language on the nexus between protection principles and migration control, including a reference to the need to take account of reception capacities of host countries. In its emphasis on the external dimension of the EU's migration policy, the Conclusions do not include a reference to the protection dimension of migration management and to the need for truly comprehensive strategies, including partnership with international organisations, which UNHCR had asked for.




17   The fight against terrorism: the events of 11 September and their impact


3.1 Following the tragic events of 11 September, an exceptional Justice and Home Affairs Council was called for on 20 September, followed by an Extraordinary European Council (Heads of State and Government) on 21 September. The Justice and Home Affairs Council  adopted an Action Plan of 40+  measures to be taken in order to step up the fight against terrorism, aimed at strengthening co-operation between magistrates, police and intelligence services,  both within the EU and with third countries, including the US, strengthening border controls, combating the financing of terrorism, establishing early warning systems etc.


3.2 One of the measures listed was a call on the Commission to examine urgently the relationship between safeguarding internal security and complying with international protection obligations and instruments. The Commission issued a working document on the issue on 5 December. UNHCR published its own views on the relationship between asylum and terrorism the  following day. Issues of special interest to the EU are inter alia the possibilities for building in safeguards in admissibility procedures in order to prevent abuse of the asylum channel by (potential) terrorists, the proper application of the exclusion clauses and the problems caused by excluded but non-removable cases. The Commission was also tasked with examining the scope for the provisional application of the EU Temporary Protection Directive in case special protection arrangement were required within the EU for the Afghan caseload - yet the possibility of a large-scale influx did not present itself.


3.3 Another measure included in the 20 September JHA Council Action Plan was a call on the Commission, in drawing up EU legislation, to fully consider the impact of any legislative proposals on the fight against terrorism and organised crime. This has led the Commission to review all its proposals for migration and asylum legislation, the result of which has been laid down in above-mentioned working document, calling for amending the asylum procedures proposal to allow for accelerated processing of possibly excludable cases, or even the dismissal of such asylum claims as inadmissible, strengthening of the provisions of withdrawal or withholding of reception facilities in the draft Directive on reception conditions, introducing art. 33 (2) in the draft Directive on the refugee definition, and strengthening the references to public order in the draft legislation on immigration (family reunion, long-term residence etc).


3.4 The exceptional European Council meeting in Brussels on 21 September analysed the international situation following the terrorist attacks in the US and agreed to take a number of urgent measures, including the adoption by December of the two instruments proposed by the Commission on 19 September on combating terrorism and the European arrest warrant, and agreement on measures to block the financing of terrorism. The Summit expressed the EU's full support for the international coalition against terrorism, to include, in addition to the US and EU, candidate countries, Russia and Arab and Muslim partners, as well as the need for an in-depth political dialogue with those countries and regions of the world in which terrorism comes into being. The Summit called for a co-ordinated and inter-disciplinary approach embracing all EU policies to fight the scourge of terrorism, yet this always with due  respect for fundamental freedoms. The Summit also called for an urgent EU programme to assist Afghan refugees and internally displaced persons. The subsequent Ghent Summit (19 October) and Laeken Summit (14-15 December) again included Conclusions on the fight against terrorism, reiterating the Union's commitment to strengthening judicial and police co-operation in combating terrorism effectively, and the need for continued humanitarian aid to Afghanistan and the search for stability and durable solutions for refugees in and around Afghanistan.


3.5 All General Affairs (Foreign Ministers) Council, Finance Council and Justice and Home Affairs Council meetings in November and December dealt with relevant elements of the EU's comprehensive Action Plan to combat terrorism and address the situation in and around Afghanistan. At the end of the year, the EU had reached political agreement on a definition of terrorist acts and terrorist groups and a harmonised approach to penalise terrorist acts, the European arrest warrant which should facilitate surrender procedures between EU Member States, no longer to be subject to verification of dual criminality, and an instrument to freeze financial assets of terrorist groups and individuals, based on an agreed list of terrorist organisations. The role of the Commission had been to propose the text of instruments and of the European Parliament to critically review the draft texts and suggest non-binding amendments.


3.6 During this period there were also various meetings with delegations of the United State at the level of Ministers (General Affairs Council), senior officials (SCIFA) and working groups (CIREA, CIREFI). In the margin of the 6/7 December JHA Council meeting, the EUROPOL Director and the US ambassador signed a general co-operation agreement . There were also discussions on co-operation in judi cial matters, immigration and asylum. The European Parliament adopted a highly critical resolution asking for scrupulous respect for the Union's adherence to fundamental rights and freedoms, and for its unconditional opposition to the death penalty in extradition cases.




18   Justice and Home Affairs Council meetings during 2001


4.1 In addition to the informal meetings during the Swedish and Belgian Presidency and the special JHA Council meetings aimed at inter alia violence around Summit meetings and measures to combat terrorism, the "regular" JHA Ministerial Councils discussed a number of instruments in asylum, migration, border management, judicial co-operation and police co-operation, including those related to migrant smuggling, human trafficking and other forms of organised crime. In late 2001, EUROJUST, the counterpart of EUROPOL for co-operation between magistrates was established in its provisional formation. The JHA Council reviewed regularly the operation of new bodies, established following the Tampere Summit, such as the Police Chiefs Task Force, the European Police College and Member States' Security and Intelligence Services (to which is to be added in future a new structure related to common border management to provide for shared training, exchanges and co-ordination between services). The Council meetings were marked by lack of progress in negotiations in the areas of asylum and migration and continuing disagreement on harmonisation in criminal law for lack of mutual recognition of Member States' jurisdictions. The JHA Council meetings reviewed progress made in the enlargement context, both as regards formal negotiations and regular evaluations and the orientation of assistance programmes.


4.2 The  15/16 March JHA Council adopted a Framework Decision (Third Pillar instrument) on the status  of victims in criminal proceedings. Subsequent instruments combating migrant smuggling or human trafficking would refer in its chapters on victim assistance and protection to this general instrument. The Council discussed measures to address illegal transit migration through the Balkan route, emphasising the need for greater EU co-ordination in preventive action and the dispatching of police officers to assist border police it the region. JHA Ministers met for the first time officially in Council with their counterparts from candidate countries : various themes were addressed among which  alignment of visas policy, the need to strengthen external border controls, judiciary and police co-operation aimed at curbing illegal migration and stemming trafficking and smuggling, and asylum and migration issues.


4.3 The 28/29 May JHA Council reached political agreement on the proposals on temporary protection, carrier sanctions and migrant smuggling/trafficking (see below for more detail). JHA - Ministers also approved a progress report on the work of the HLWG, to be approved subsequently by Foreign Ministers at the June General Affairs Council. Furthermore, they approved a set of Conclusions related to illegal transit migration through the Western Balkans, inter alia aimed at the creation of a network of national immigration liaison officers, to be posted in all the countries of south-eastern European region, as well as a number of neighbouring countries. Ministers approved a Directive (French initiative) on the mutual recognition of decisions on the expulsion of third-country nationals (see below).  Ministers also adopted Conclusions aimed at strengthening controls on minors at the external borders of Member States . These Conclusions include a reference to raise awareness among carriers and travel agents for the need to take measures to reduce the increasing number of undocumented minor passengers. In addition, Ministers adopted conclusions on common analysis and statistics, following a seminar organised by the Presidency on 4 April. The Conclusions  call for a Work Plan to be drawn up by the Commission, including the publication of a public Annual Report and an Action Plan on migration and asylum statistics in the EU, improved exchange and consultations  between Member States and with international organisations (such as IGC and UNHCR), the development of a network of statistical experts, and the adoption of Community legislation in this area. Finally the Council adopted a Regulation on freedom of movement within the EU during three months for persons in possession of a long-stay visa, replacing Article 18 of the Schengen Agreement.


15.1 The 27/28 September JHA Council reviewed progress in negotiations on a number of dossiers.


15.1.1   Family reunion draft Directive: The Council discussed a Presidency compromise addressing the remaining contentious issues (see below para 7.1) yet Ministers did not reach agreement - delegations remained divided on the issue of non-married couples and the age limit. Germany made a general reservation stating that it cannot agree with any EU proposal before the situation at national level has been clarified. As for the refugee-related provisions, these would remain part of a separate chapter, yet any future decisions on the definition of the family unit , eligible persons and time limits/conditions may have their impact on the rules for the reunion of the refugee family unless exemptions are being introduced or maintained.


15.1.2   The Council also discussed the draft Directive on asylum procedures on the basis of a list of questions presented by the Presidency. Ministers agreed that the draft Directive would need review in at least the following areas: a simplification of the appeal/review stage; a revision of the chapter on the accelerated procedure in order to ensure that this procedure results in quick, expeditious decisions; and a revision of the admissibility criteria. Ministers remained divided over the question whether the Directive is to cover border procedures,  whether it should cover also claims for subsidiary forms of protection, and whether or not the suspensive effect of the appeal is to be maintained as a general principle and in which situations it can be lifted.


15.1.3   The Council reached political agreement on EC legislation (Framework Decision) to combat trafficking in human beings. As regards the outstanding problem - the harmonisation of penalties - the Council approved a proposal to establish the maximum penalty at a minimum of 8 years. 


15.1.4   Following the example set during the Swedish Presidency, the second day of this Council meeting was devoted to an exchange of views with counterparts from candidate countries, this time focussing on the trafficking issue in detail. The joint meeting adopted a list of 12 measures including the need to improve information exchange, establishment of specialist cells, co-operation between police forces, the need for amending and strengthening of legal provisions, organisation of information campaigns to prevent trafficking, establishment of programmes to assist victims, co-operation with NGOs and civil society and improved measures to detect false documents.


15.2 The 16 November JHA Council was mainly devoted to review progress made in preparing for a JHA instrument in strengthening judicial and police cooperation to combat terrorism and for the adoption of the European arrest warrant. This Council meeting also had an in-depth discussion on the upcoming Laeken Summit review of the implementation of the Tampere Conclusions on the basis of a Presidency note.  Ministers, in commenting this note, focussed particularly on the need to improve the Union's capacity to manage migration flows, inter alia through strengthened border controls, visa co-operation and Schengen co-ordination. Member States, in introducing amendments to national asylum and immigration laws, should aim at greater convergence with those of other Member States (the Presidency's proposal to call at Laeken for a stand-still clause was rejected). Judicial and police co-operation should be improved by making better use of instruments and bodies. The Presidency proposals for improved use of the JHA working methods (one JHA Council per month, focussing on less topics, and limited to negotiations on legislative and policy drafts) were welcomed.


15.3.1 The 6/7 December JHA Council secured political agreement on the Framework Decision on combating terrorism. It also adopted a Decision to create EUROJUST, the network of magistrats and judges. Due to opposition by the Italian Minister of Interior, no agreement could be reached on the European arrest warrant at the Council meeting. However, the Italian veto was lifted in the following days, prior to the Laeken Summit. The Framework Decision on the fight against the sexual exploitation of children and child pornography could not yet be adopted as a result of ongoing general discussions on the required level of ambition in harmonising elements of Member States' criminal law systems. No formal adoption could take place yet of the agreed instruments on migrant smuggling (May 2001) and human trafficking (September 2001) as a result of outstanding parliamentary scrutiny reservations and work by legal linguists.


15.1.1   The Council also discussed a draft set of  Conclusions on the Asylum Procedures Directive which according to the Presidency received approval from all delegations yet subsequently met with opposition in COREPER. The status of these Conclusions was not clear by the end of the year. They focus on the following issues: 1) the field of application and structure of the directive: it should apply to requests for protection lodged in Member States under the 1951 Geneva Convention. Two questions remain open: the application of the directive to requests for asylum lodged at the border of a Member State and the compulsory application of the directive to other forms of protection; 2) the quality of the decision-making process for examining requests for asylum: according to the Council conclusions, the future instrument should notably guarantee: individual examination of each request for asylum, correct information to the asylum-seeker, the possibility of conducting a personal enquiry (with an interpreter if necessary), "reasonable" legal assistance, the possibility of communicating with the UN High Commissioner for Refugees, the protection of information contained in each file, the exclusion of the detention of a person simply for reasons of requesting asylum, special attention to the needs of vulnerable groups; 3) the procedures (normal or accelerated), deadlines, number of appeals, nature and power of appeals bodies and the  suspensive effect of appeals. It is in this latter area that delegations reportedly still quarrel over what was actually agreed at Ministerial level (particularly as regards suspensive effect of appeals in the regular vs. accelerated procedure) and the status of these Conclusions therefore remains uncertain.


15.1.2   The Council decided that from 1 January 2002 on, Romanians will no longer need a visa when wanting to visit Europe.  Romania was the only remaining candidate country whose nationals need a visa for Europe. With the lifting of the requirement - and the subsequent amendment of the Council Regulation - the EU wanted to reward the Romanian efforts to combat illegal migration. This does not mean however that there travel for Romanians in the EU is without restrictions: everyone wanting to visit a EU Member State has to possess a hundred Euro for everyday that they are planning to stay - a very high sum for the average Romanian, when a months wage is little more than 150 Euro.




16       European Commission programme


5.1 During the year 2001, the Commission completed the draft legislative package in asylum. It submitted proposals for legislative instruments as required by the Treaty, on reception conditions for asylum-seekers (April 2001), on a successor instrument to the Dublin Convention (July 2001) - preceded by an evaluation of Member States' views on the implementation of the present Convention (April 2001) and on the refugee definition  and subsidiary forms of protection (September 2001). The Commission continued preparations for putting in place the EURODAC system (hampered in Council as a result of French opposition to the preferred fingerprinting system) following adoption of the EURODAC Regulation in December 2000.  The Commission launched a call for proposal for funding projects under the European Refugee Fund for 2002 either through Member States or at Commission level.


5.2 In the migration (admission) area, following the proposal for a Directive on Family Reunion in 1999 (amended in 2000), the Commission submitted a draft Directive on long-term residence status in March 2001 and on admission for labour purposes in July 2001.


5.3 The Commission negotiated EC readmission agreements with Hong Kong (concluded as a first of its kind in November 2001) and Macao, Morocco and Sri Lanka. Negotiations for a transit readmission agreement with Turkey (for Iraqi) were also prepared. Similar negotiations with Pakistan and Russia appear to be put on hold.


5.4 The Commission prepared a proposal for a Directive on short-term residence permits for victims of trafficking who are prepared to co-operate with judicial and police authorities for adoption in early 2002. It also worked towards the setting up of co-operation mechanisms with the concerned authorities to combat illegal immigration, migrant smuggling and human trafficking from China and the Western Balkans.


5.5 Furthermore, the Commission prepared legislative instruments in the area of the fight against terrorism, extradition/surrender procedures (the European arrest warrant). As referred to above, in early December, the Commission approved a working paper aiming to strike a balance between improving internal security in Europe after the 11 September events and protecting the rights of refugees. The paper was prepared in response to the 20 September JHA Council and will provide a basis for discussions among Member States, but the Commission also sees it as contributing to the wider debate with civil society. It is based on two main premises: 1) bona fide refugees and asylum seekers should not become victims of the recent events; and 2) those committing or supporting terrorism should not be able to access the territory of the EU Member States.


5.6 The Commission also submitted three important  Communications in the area of asylum and migration in 2001. In November 2001, it presented a progress report on the implementation of the first phase instruments and recommendations on the establishment of an open co-ordination mechanism in asylum. This Communication also focuses on the issue of international protection vs. security concerns, the need for improved collection, analysis and exchange of data, the external dimension of the EU asylum policy, and in an annex it reviews the comments received to its November 2000 Communication on the second stage of harmonisation, towards a common asylum procedure and uniform refugee status. 


5.7 Earlier on, in July, the Commission introduced the idea of an open co-ordination mechanism in the area of migration  in a separate Communication. Such a mechanism should result in the adoption of multi-annual guidelines together with a timetable and coupled with the drawing up of National Action Plans in Member States to ensure the timely and thorough implementation of Community legislation and policy at the national level. Another objective of the mechanism is to guarantee coherence in the development of the policies of Member. The proposal was heavily promoted by Commissioner Vitorino during the October Migration Conference and the Belgian Presidency also included it in its background evaluation document for the Laeken Summit. However, Member States remain divided over the use of such a system in an area where, in their view, existing Community instruments and mechanisms are sufficient to monitor the implementation of Community legislation at national level.


5.8 Also in November 2001, the Commission submitted a third Communication on combating illegal immigration. In this document, the Commission focuses on six priority areas: visa policy,  information exchange, border management, police co-operation, aliens law/criminal law, and return/readmission policy.  The Communication provides policy guidelines and strategic options to strengthen co-operation between Member States and to develop common approaches in these areas.  It focuses inter alia on measures to combat irregular migration close to the source in regions of origin through strengthened partnership with countries of origin and transit. It promotes the development of the emerging network of liaison officers, joint teams for border management (development of a European Border Guards corps), joint police operations.  The policy proposals also include improvement in the quality of statistics and the creation of a European Migration Observatory. Furthermore, the document includes proposals aimed at strengthening sanctions against those facilitating illegal immigration and/or undeclared work of illegal residents, and  promotes the conclusion of Community readmission agreements with third countries (a suggestion emphasised in the Laeken Summit Conclusions, yet third countries remain fiercely opposed).  In its Communication, the Commission  announces that it will issue separate policy papers on a common return policy and a  European Border Management System, as well as a feasibility study on the creation of a European Visa Identification System.


5.9 As regards the work of the High Level Working Group in Migration and Asylum, the Commission adopted the implementing framework for financing proposals submitted under the newly created budget line in August 2001. It started preparations for a legal base underpinning implementation of this new budgetary instrument and selected and approved - with the blessing of the Member States - a number of proposals submitted by Member States and international organisations - aimed at implementing elements of the six Action Plans.


5.10 The Odysseus programme came to an end by 1 January 2002. During its last year of operation a considerable part of the funds were used for the Belgian Presidency High Impact police operation for controls at the Union's future external borders, in co-operation with EUROPOL, the Member States and applicant countries. The Commission published a proposal for a successor programme in October 2001, entitled a "Proposal for a Council Decision adopting an action program for administrative co‑operation in the fields of external borders, visas, asylum and immigration (ARGO)" aimed primarily at  addressing Member States' administrative needs.


5.11 The Commission submitted its bi-annual update of its Scoreboard in justice and home affairs on 29 May and 26 October 2001. The latter issue was intended as a pre-Laeken edition and went beyond the purely mechanical measuring of progress in terms of the tabling and adoption (or non-adoption) of instruments. In its introduction the Commission provides its own evaluation and analysis of work undertaken so far, and includes a number of "political" messages on the need to maintain the level of ambitions set at Tampere both in content and timetable. The Commission also points at the need for Member States to inject a major dose of political will in the deliberations on common instruments in asylum and migration inter alia by making essential concessions during negotiations.




17      the Asylum legislative agenda



Draft Directive on asylum procedures, September 2000


6.1 The Draft Directive on common minimum standards on procedures for granting or withdrawing refugee status with a view inter alia to reducing the duration of asylum procedures was presented in September 2000 by the Commission. As reported above, the proposal has been the subjected of two Ministerial debates during the Belgian Presidency, in an effort to give impetus to the negotiations at technical level which have proven very difficult in a number of points. The Laeken Summit has now asked the Commission to submit a modified proposal before 30 April 2002, which should take into account the results of the negotiations in the Asylum Working Party and the guidelines adopted by the 6/7 December JHA Council. Member States have made it clear they do not wish to adopt a detailed Directive based on the level of standards as proposed by the Commission. Substantive amendments will have to be made which will most probably represent a lowering of protection standards.


Draft Directive on reception conditions for asylum-seekers,  April 2001


6.2 The Commission presented a Draft Directive setting out minimum standards on the reception of asylum applicants by EU Member States in early April 2001. After a first reading of the instrument early September, the Council Asylum Working Party met again in November to review some of the more controversial elements of the text on the basis of a Presidency working document including a revised version of some articles of the proposal and introducing new ones. While most of the difficulties were solved, no agreement could be reached on the three main controversial issues i.e. the scope of application (whether or not the instrument should cover border procedures and whether or not applicants for subsidiary protection should be covered),  the right to freedom of movement and the possibility for access to the labour market for asylum-seekers. Particularly as regards access to the labour market there is no movement in delegations' diametrically opposed positions. At the initiative of the UK, the Presidency has proposed a new article referring to a 'financial means test' which would provide for verifying the asylum seeker's resources so that s/he can contribute accordingly  to the cost of his/her reception.


Draft  Regulation Dublin II,  July 2001


6.3.1  Following an evaluation of the operation of the present Convention, the Commission presented a proposal for a Regulation laying down the criteria and mechanisms for determining the Member States responsible for examining an asylum application lodged in one of the Member States by a third country national in mid July 2001. The Council Asylum Working Party undertook an extensive first reading of the text in its meeting early October.  A number of delegations are opposed to the proposed definition of family members (for example whether it should also encompass unmarried couples), the application of the Regulation to cases where the original asylum request has been replaced by a request for subsidiary protection,  the right of unaccompanied minors to be reunited with family members in another Member State. Other delegations (mainly Southern European ones) are concerned with the introduction of the new criteria basing responsibility for examining an asylum request on knowingly tolerating the illegal presence of an applicant on its territory for over 2 months ("Sangatte provision") or unknowingly tolerating the stay of an applicant on its territory for longer than 6 months. Italy has raised a general problem with the general approach based on the responsibility for controlling entry into the common territory, whereas this country wants to render the Member State responsible where the asylum application has been lodged (a view shared with UNHCR and NGOs).


6.3.2 With the extension of the Schengen acquis to the Nordic countries in March 2001, the Dublin mechanism also became operational in Norway and Iceland through a parallel arrangement reproducing the obligations and rights, as well as the allocation criteria contained in the Dublin Convention and the EURODAC Regulation.


Draft Directive on the refugee definition and subsidiary forms of protection, September 2001


6.4 In mid-September the Commission presented its proposal for a Council Directive laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees, in accordance with the 1951 Convention relating to the status of refugees and the 1967 protocol, or as persons who otherwise need international protection. With its proposal, the Commission aims to set minimum standards for the status of applicants for international protection as refugees or beneficiaries of subsidiary protection status; ensure a minimum level of protection available in all Member States for those who genuinely need international protection; and reduce disparities between Member States' legislation and  practice as a first step towards full harmonisation. One of the positive elements of the proposal is that it argues to provide refugee status for victims of persecution inflicted by non-state agents or for gender-related reasons. The proposal is expected to be reviewed in a first preliminary reading during the Spanish Presidency which will also host a seminar on the concept of "international protection" and some elements of the proposal in early January 2002.



Directive on Temporary Protection (adopted July 2001)


6.5 The Commission proposal on minimum standards for the granting of temporary protection to  refugees arriving in large-scale influx was negotiated intensely during the Swedish Presidency which managed to reach agreement on the proposal at the May JHA Council. The text was formally adopted on 20 July and subsequently published in the Official Journal of 7 August 2001.  Member States must bring into force the laws necessary to comply with this directive by 31 December 2002 at the latest.


European Refugee Fund (ERF), 2000-2005 (adopted September 2000)


6.6 Approved late 2000, the ERF was granted 216 millions Euro to be invested in improving Member States refugee and asylum practices during a five year period. In 2001, Member States selected on the basis of their respective situations and priorities, proposals and projects for  the reception, integration and voluntary repatriation of persons identified by the ERF. Project implementation started in Member States under the 2000 and 2001 Programmes.  The Commission approved a selected number of proposals submitted by international organisations and international NGOs under its Community facility (5 % of ERF funds).



Horizontal Paper on Asylum Instruments, November 2001


6.7 In November 2001, the Commission presented a working paper analysing the use of certain definitions and procedural concepts in the Commission proposals for asylum legislation (minimum standards asylum procedure, minimum standards reception conditions, minimum standards qualifying as refugee/beneficiary subsidiary protection, Dublin II Regulation). This cross-reference exercise should guide delegations in achieving the necessary coherence in the instruments as well as assess the impact which some provisions in one instrument have on related provisions in others. The document analyses the use of certain definitions in view of the scope of application of the instruments (e.g. whether or not the concept of "asylum-seeker" covers persons in search of other forms of protection than  Convention status; "family member" - the Commission proposals in their present form include a variety of definitions) and the use of  procedural elements (e.g. where suspensive effect of appeal is not granted in accelerated procedures, reception conditions may not have to be provided etc) as well as other elements (such as applicability of the various provisions at the border).



7. The  Migration legislative agenda


Draft Directive on Family  Reunification, December 1999 (modified October 2000)


7.1 Approval of the text was held up by disagreement over the minimum age of children to be granted the right of family reunion, time limits / waiting periods before reunited family members are entitled to certain rights and above al the scope of application (i.e. whether or not and how to include unmarried partners and direct ascendants and children of full age).  A Belgian Presidency compromise (see above) was rejected by Germany, with a few other delegations also voicing concern. The Laeken Summit has now called on the Commission to introduce a modified proposal by 30 April 2002 latest. This modified proposal should go further than the revised Commission draft of October 2000 and should take into account efforts undertaken by the Swedish and Belgian Presidency to reach a solution on the outstanding controversies. .


Draft Directive on the status of long term third country nationals residents,  March 2001


7.2 This Commission proposal is aimed at harmonising conditions for the delivery of long-term resident status and the enjoyment of accompanying rights - including the right to free movement within the Union and to take up residence in another EU Member State.  The instrument covers the situation of economic migrants and recognised refugees. According to the  proposal aliens (including refugees) who have been legally resident for an uninterrupted period of five years will receive a ten-year residence permit, automatically renewable, and valid for the whole of the EU. The permit/status and rights/benefits attached to it - i.a. access to vocational training and employment - will be transferable if the long-term residents moves to another EU Member State (with the exception of access to social assistance).  Negotiations on this text have run into a number of difficulties, particularly as regards the transferability of rights when moving to another Member State. Negotiations will be pursued under the Spanish Presidency.


Directive on the mutual recognition of decisions on the expulsion of third country nationals (adopted May 2001)


7.3 The purpose of this French Presidency proposal was to accept recognition of an expulsion order issued by a competent authority in one Member State by another Member State if the expellee had meanwhile moved to that latter Member State. Such  mutual recognition is to be limited to two cases : when a third country national is the subject of an expulsion decision based on a serious and present threat to public order or to national security  or safety, or where a third country national is the subject of an expulsion decision based on a failure to comply with national rules on the entry or residence of aliens. The Council Directive was approved on 28 May 2001 during the Swedish Presidency and published in the Official Journal of 2 June 2001. Member States must bring into force national laws complying with the provisions of this Directive no later than 2 December 2002. The Directive shall be applied without prejudice to the provisions of the Dublin Convention (or its successor instrument) and with due respect for human rights and fundamental freedoms, including the right to bring proceedings for a remedy against an expulsion order.



Directive on Carriers Sanctions (supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement) (adopted  June 2001)


7.4.1 In September 2000, the (then) French Presidency introduced a proposal for a Directive aimed at harmonising the penalties on carriers transporting undocumented passengers. After intense and often difficult negotiations, the Directive was adopted at the end of the Swedish Presidency on 28 June and published in the Official Journal of 10 July 2001.  Member States must take the necessary measures to comply with the Directive not later than 11 February 2003. The Directive's aim at harmonisation has been met only partially, by setting either maximum or minimum levels of penalties. Member States may introduce additional penalties The adoption of this Directive means that throughout the EU sanctions will be applied (financial, economic etc) and that the principle is now codified in EC law (this means that those countries which did not apply financial or economic penalties, such as Sweden, are now obliged to introduce them in national law). The Directive is without prejudice to Member States' obligations resulting from the 1951 Convention and in cases  where an undocumented alien seeks international protection, yet the relevant provisions are formulated very generally and do not appear to ally concerns voiced by UNHCR and NGOs that carriers will be asked to refuse access to territory by those in need of protection yet improperly documented.


7.4.2. On 30 November 2001, the transport industry, in co-operation with the European Commission, invited  regulators (Government officials) and international organisations, including UNHCR, and non-governmental organisations to a Round Table to discuss how the Directive can be implemented  effectively, which degree of diligence is to be expected from the carrier, and how implementation is to respect international principles of refugee law. The event was very well attended and is expected to be given follow-up in expert meetings.


Draft Directive on conditions of entry and  residence of third‑country nationals for the purposes of paid  employment and self‑employed economic activity, July  2001


7.5 This Commission proposal is one of the legislative initiatives regarding common admission policies in the European Union and offers a fairly flexible legal framework to take account of differences in the evolution of the labour markets yet to meet the demands already manifested by European employers while respecting the rights of legal immigrants. A first reading took place during the Belgian Presidency yet proper negotiations are to be held during the Spanish Presidency and beyond. The initiative is of relevance to refugee policy in so far opening legal channels for labour migration may help reducing the pressures on States' asylum systems. Moreover, the provisions of the Directive may apply to refugees recognised in third countries whose skills and experience may be needed by EU Member States. The draft Directive stipulates that migrants, including refugees, legally residing in EU Member States will be given priority in fulfilling job vacancies over third country nationals from outside the EU.


8.  The legislative agenda concerning migrant smuggling and human trafficking


Draft Directive defining the facilitation of unauthorised entry, movement and residence,  and for a Framework Decision on  the strengthening of the penal framework to prevent the facilitation of unauthorised entry and residence, September 2000


8.1 In September 2000, the (then) French Presidency introduced a proposal to strengthen and harmonise Member States' laws combating migrant smuggling. The proposal included a First Pillar Directive to define the act of smuggling as facilitating illegal entry and residence (a migration instrument), and a Third Pillar Framework Decision to strengthen and harmonise the penalties (a criminal law instrument) . Political agreement was reached on both instruments at the JHA Council of 28 May 2001, yet at the end of the reporting year the instruments were not yet formally adopted due to continuing parliamentary scrutiny reservations and thorough revision by legal linguists. During the negotiations UNHCR and NGOs had called to align the text of these EC/EU legislative instruments to the agreed language of the Protocol on migrant smuggling annexed to the UN Convention on Trans-national Crime, adopted in Palermo in 2000. However, the agreed text of the Directive includes a mere optional humanitarian clause stipulating that "any Member State may decide, in accordance with national law and practice, not to impose sanctions........for cases where the aim........is to provide humanitarian assistance to the person concerned." A reference to financial gain as the distinguishing element for labelling smuggling a criminal act, was not preserved in relation to the facilitation of illegal entry (only in regard to illegal residence). The Framework Decision  aimed at -partially - harmonising the level of sanctions against smuggling includes a provision stipulating that sanctions shall be "without prejudice to the protection afforded to refugees and asylum‑seekers in accordance with international refugee standards", including the 1951 Convention/1967 Protocol.


Draft Framework Decision on combating trafficking in human beings,  December 2000


8.2 In December 2000, the European Commission submitted a Third Pillar criminal law instrument (Framework Decision)  aimed at harmonising Member States' legislation against human trafficking. Political agreement on the text was reached at the 27/28 September JHA Council when a compromise was found to the outstanding problem - harmonising criminal law provisions - by adopting a minimum level of 8 years  for maximum penalties (Germany, Austria and Denmark however issued a Declaration stating that this compromise must not set a precedent for future instruments harmonising criminal law legislation). The text was under scrutiny by legal linguists at the end of the reporting year and needs to be reviewed too by some national parliaments before it can be formally adopted in 2002. UNHCR and NGOs, as well as the European Parliament (see below) had asked for strengthening the provisions on victim protection and assistance and the inclusion of a savings clause - similar to the provisions of the Palermo Protocol on human trafficking annexed to the UN Convention on Trans-National Crime. However, these recommendations were not taken over by the Council, arguing that with the adoption of the March 2001 Framework Decision on the standing of victims in criminal proceedings and the forthcoming Commission proposal for a temporary permit of stay for victims of trafficking who co-operate with the authorities (see para. 5.4) the situation of victims of trafficking is sufficiently covered.




9.  European Parliament


9.1 During the reporting year, the European Parliament adopted a number of reports amending draft legislation in asylum and migration, as well as commenting on Commission Communications and on more general developments in the construction of the area of freedom, security and justice. The Parliament also organised a number of hearings and other public events. Of particular interest to UNHCR and refugee organisations were the parliamentary reports and amendments to the Commission Directives on temporary protection (rapporteur Wiebenga, March 2001), and minimum standards for asylum procedures (rapporteur Watson, ex-Schmitt, September 2001). The European Parliament has also appointed rapporteurs on the draft Directive on reception conditions (Hernandez Molar, who wants to undertake a  fact-finding mission to selected Member States) and  the Dublin II Regulation (Marinho). In the migration area, Parliament was preparing a commentary/list of amendments related to the draft Directive on long-term residence (rapporteur Baroness Ludford) and a number of additional initiatives not of immediate concern to UNHCR. Parliament adopted a number of welcome amendments to the draft Directive on carrier sanctions to be followed by a rejection of the proposal for political and institutional reasons (rapporteur Kirkhope). Parliament did the same in regard to the draft Directive/Framework Decision related to migration smuggling (rapporteur Ceyhun). As regards the draft Framework Decision on human trafficking, Parliament adopted a list of very useful amendments, clearly in line with the recommendations submitted by UNHCR and NGOs (rapporteur Ms. Klamt) yet Parliament was equally unsuccessful in convincing the Council to take these amendments on board.


9.2 The European Parliament also adopted important commentaries on the Commission Communication on a common asylum procedure/uniform status (rapporteur Robert Evans, October 2001) and the Commission Communication on a common immigration policy (rapporteur Pirker, October 2001).


Economic and Social Committee



10.1 This committee which regroups the employers, workers and civil society has taken an increasing interest in asylum and migration matters and has produced a number of very helpful and well-researched reports commenting on draft asylum and migration legislation and Commission Communications. During 2001,  UNHCR was invited to a number of expert meetings organised by the Committee on the Commission asylum Communication, reception conditions and the refugee definition. Committee rapporteurs also came to visit UNHCR, NGOs and others concerned. The Committee adopted reports on  inter alia the draft legislation on asylum procedures, reception conditions, long-term residence status, as well as on the Commission Communication on a common asylum procedure /uniform status and the Communication on a common immigration policy.


Committee of the Regions


11.1 As with the Economic and Social Committee, this body also produced a few reports and opinions on Commission initiatives in asylum and migration, including a useful opinion on the draft Directive on reception conditions (to note that reception facilities for asylum-seekers often are a decentralised responsibility at regional level, so the Committee speaks with authority and from experience).


European Court of Justice


12.1 On 11 October 2001, the European Court of Justice issued a ruling concerning access to social security for stateless people and refugees who reside in a Member State. The Court of Justice had been seized by the German Federal Court for social affairs since Germany had refused to pay family allocations to refugees and stateless people who were not in possession of the correct type of German residence permit - but merely an authorisation to stay (given when one is granted the ’little asylum’ in Germany), thus excluding them from social benefits. The question to the Court was to know whether or not these persons could be assimilated to German nationals and citizens of the European Union in order to enjoy the European social rights. The Court decided that stateless persons and refugees could and should enjoy Community social security law, as stipulated by Regulation 1408/71, however on condition that they move from one member States to another and reside there - a right, however, that they cannot yet exercise. Thus, the second conclusion of the Court has rendered its first conclusion meaningless for refugees and stateless persons, unless the adoption of the Directive on the rights of long-term residents will allow refugees and stateless persons  to exercise this right in practice.  Observers have noted the emphasis the Court has placed on interpreting Regulation 1408/71 and related Community law in light of Member States' international obligations.




High Level Working Group on Migration and Asylum


13.1 The High Level Working Group met on a monthly basis and as stated above was particularly active during the Swedish Presidency. That Presidency issued a progress report at the end of its term, whereas the Belgian Presidency produced a contribution to the October Migration Conference.  In the first part of the year, the Swedish Presidency organised expert meetings which were attended by international organisations (including UNHCR) and non-governmental organisations. The Swedish Presidency also arranged for an extended Troika mission to Albania, Sri Lanka,  and invited a Turkish delegation to Stockholm. An informal meeting was held in Rabat with the Moroccan authorities. An information session was organised with candidate countries and consultations with the US, Canada, Norway, Switzerland and Australia took also place.


13.2 During the Belgian Presidency these consultations were continued, including a session with candidate countries.  Contacts with the Sri Lankan, Turkish and Albanian authorities were stepped up where required, including missions. Also, meetings at technical level were held with Moroccan representatives.


13.3 The outgoing Swedish chair of the HLWG addressed a meeting of the Third Track of the Global Consultations on regional capacity-building in Cairo in early July. There was continuing discussion on the desirability to widen the HLWG Action Plan on Albania to the Western Balkan region.  As for Afghanistan, the events following the terrorist attacks of 11 September call for a thorough revision of this Action Plan .


13.4 The Commission started implementing the newly created budget line and approved the first set of submissions (10 MEURO in total) for 2001, including proposals forwarded by international organisations such as UNHCR. A background note explaining the Commission's priority areas for funding was issued by the Commission in September.




15.1   During the Swedish Presidency, CIREA invited UNHCR for an exchange on the following country situations: Iran, Afghanistan (in the presence of candidate countries),  Sri Lanka (in the presence of the US and Canada). The biannual meeting of the second instance bodies (courts, review bodies) was devoted to an exchange on the concept of "refugie sur place" and new elements in renewed applications. UNHCR participated  in the discussions on the first item. During the Belgian Presidency, UNHCR provided expert advise on the situation in Turkey, and the issue of asylum and terrorism (the latter during an exchange in which the US, Canada and candidate countries were also present). UNHCR also participated in the meeting of the second instance bodies which the Belgian Presidency focused on the  relationship between the 1951 Convention and other international human rights instruments, particularly the European Convention on Human Rights. The discussion included a review of the  (limited) jurisprudence of the Strasbourg Court of Human Rights on the issue. 




50th anniversary 1951 Convention- Global Consultations


15.1   During this anniversary year of the 1951 Convention, the European Commission and EU Member States actively participated in the various events organised within the framework of the Global Consultations. EU Member States co-ordinated their position in the deliberations around the Declaration which was adopted on the 12th of December (one of the issues on which the EU had voiced strong views during the negotiations related to issue of a supervisory or review mechanism which the EU could not support). The Belgian Minister of Interior representing the Presidency delivered a supportive statement to the meeting of all State parties on that day.


15.2   The Council adopted an EU Declaration on  the 50th anniversary on 28 July 2001 in which it reaffirmed "its commitment to this unique instrument as the foundation of the international regime for the protection of refugees" and recognised "the unique mandate of UNHCR". The Declaration also makes helpful references to the Tampere Conclusions, the absolute respect for the right to asylum and the work of UNHCR.


15.3   In January, UNHCR made a presentation to SCIFA on the global consultations. 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. Subsequently, the European Commission prepared useful notes on temporary protection and asylum systems/asylum procedures for relevant meetings. The Commission and the Presidency also participated in some regional meetings (Budapest, Cairo). It is expected that the Commission and the EU Member States will ask to be closely involved in drawing up the Agenda for Protection for adoption in ExCOM in 2002.



UNHCR commentaries


16.1  During the reporting year, UNHCR published comments on the following draft instruments: Commission proposals on asylum procedures (July), reception conditions (July), refugee definition/subsidiary protection (November), long-term residence status (September), as well as on the Commission Communication on the common asylum procedure/uniform status (preliminary comments in January, full comments in November) and the Commission Communication on a common immigration policy (November). As regards the Dublin Convention, UNHCR published preliminary comments in January, comments on the proposal for a Regulation to succeed the Convention are due for January 2002. UNHCR joined the Office of the High Commissioner for Human Rights in publishing a comment on the draft Framework Decision on human trafficking. UNHCR had issued comments on the initiatives on migrant smuggling, carrier sanctions, temporary protection, family reunion and the European Refugee Fund in 2000.


Semestial Partnership UNHCR - European Commission DG JHA


17.1 In mid-May, UNHCR and the European Commission met in Brussels for their biannual senior level meeting on asylum and refugees in the context  of the Semestrial Partnership established on the basis of the July 2000 exchange of letter between  UNHCR and the European Commission DG Justice and Home Affairs. The meeting undertook a review of the legislative agenda, the work of the various bodies, and the inputs required from UNHCR. The meeting also discussed the Global Consultations and how these can best dovetail with the EU harmonisation process (and vice-versa).




Enlargement and the asylum agenda


18.1 With the arrival of the Liaison Officer in the EU Unit in April 2001, liaison and lobbying efforts with the EU Institutions in regard to the asylum dimension of the enlargement process have increased. Through various means (sharing of background notes, regular meetings with responsible desks at the Commission DG Enlargement) working contacts have been strengthened and systematised, particularly in view of the preparations for the Regular Report and the technical consultations between the Commission and the applicant countries on asylum.


18.2 Over the summer of the reporting year, the justice and home affairs chapter (24) of the EU acquis was opened for all candidate countries except for Romania and Turkey. The EU issued its Common Position (non public document) for each of the twelve countries on the basis of which official negotiations were started with a first group of countries at the end of the Swedish Presidency and a second group during the Belgian Presidency (see above). Negotiations with some of the candidate countries on chapter 24 were closed by end of 2001 (Hungary, Cyprus, Slovenia, Czech Republic, Estonia). Under this chapter, no transition period is required as all criteria are supposed to be met and the level of preparedness should be high enough to ensure an effective implementation of all the JHA acquis right upon accession.


18.3  On 13 November , the EU Commission published its regular reports on each of the candidate countries. It also published a 2001 Strategy Paper reporting on progress for preparations to membership and looking forward on ways how to further monitor and assist candidate countries to reach an acceptable level of preparedness for effectively implementing the acquis in all fields. The Goteborg European Council marking the end of the Swedish Presidency indicated that accession would be possible for up to ten new members by the end of 2003 so that they will be able to participate in the EP 2004 elections (meaning that accession negotiations should be completed by the end of 2002). This intention was confirmed by the Laeken European Council at the end of 2001. In the present phase of accession preparations, the focus has shifted to candidate countries’ capacity to implement and enforce the acquis. For this reason particular attention is given to candidates’ administrative and judicial capacity. Together with the issuance of the Regular Reports, the Commission has undertaken a review of the progress made in meeting the priorities of the 1999 Accession Partnership (which is the central pre accession strategy instrument). This assessment has been used for the formulation of new priorities in the revised Accession Partnerships which were due for adoption in Council in early 2002.


18.4 During the reporting year, co-operation in justice and home affairs matters with candidate countries has become increasingly important, particularly as regards border management, combating organised crime, including human trafficking, and terrorism. Asylum capacity-building has a less prominent place yet all candidate countries have now benefited from EC assistance programmes in this field (sometimes as part of a larger programme in migration, asylum and border management, and often implemented under twinning arrangements with Member States and a prominent advisory role for the local UNHCR office).


18.5 A further aspect of the increasingly prominent role for candidate countries in the future of the European architecture is their involvement (incl. Turkey) in the discussion of the future of Europe, including the Convention which will prepare the way for the next IGC.


18.6 On Cyprus, the European Union has expressed repeatedly its regrets that a political agreement over the unity of the island has not yet been reached. It has stated equally often that, if a settlement has not been reached by the time accession becomes a reality, the Council will take a decision on accession without the reunification of the island being a pre condition (1999 Helsinki European Council Conclusions).


18.7 Preparations for launching a pre-accession strategy for Turkey progressed over 2001. Turkey’s political and economic reforms have been welcomed by the EU. However Turkey still needs to ensure in practice that these reforms are effective especially with respect to human rights. No date for opening accession negotiations with Turkey has been mentioned so far.


18.8 The Laeken Summit declared the enlargement process as "irreversible" and named the ten countries which may be ready for accession in 2004 if negotiations - to be conducted on individual merits and following separate dynamics for each country - could be brought to a successful conclusion by end of 2002. The efforts of Romania and Bulgaria were appreciated and these countries were encouraged to continue their preparations for membership.




Eastern Europe


19.1 During 2001, Justice and home affairs co-operation between the EU and the Eastern European region focused mainly on combating illegal immigration and international crime, including human trafficking. With Russia, discussions were launched on the possible conclusion of an EC readmission agreement and the exchange of expertise in combating illegal immigration. An Action Plan on JHA matters with Ukraine was prepared and adopted. The Commission (TACIS Unit at DG External Relations) pproved a programme of 2 Million Euro for 2002/2003 for asylum related projects in Ukraine, Moldova and Belarus.


19.2 Throughout the year, the EU (Commission and Swedish Presidency) showed interest in the 1996 Geneva Conference Follow Up Activities (former CIS process) and its related regional and sub regional activities. It participated in some regional Seminars (Soderkoping in April 2001, Uzghorod in October 2001).


Central Asia


20.1 The EU attention to this region increased in 2001, even before the 11 September events. The Commission has suggested to undertake a joint UNHCR / EU needs assessment  as a pre-condition for developing a fair and efficient asylum system in each of the five Central Asian Republics. The December 2001General Affairs Council reaffirmed the EU's commitment towards this region and welcomed the region's support in the international coalition against terrorism and for the transport of humanitarian aid to Afghanistan The Council indicated a number of areas in which it wants to step up co-operation with the region, including in justice and home affairs.


Western Balkans - Stability Pact


21.1 Whereas the EU is still fully behind the objectives of the Stability Pact (SP) it proposed in June 2001 a change in its working methods and a sharper focus on some of its activities with less priority for others. The EU considered the Pact to have reached a critical phase in mid-2001, which was exacerbated by the departure of the Special Coordinator for the Pact by the end of 2001, and the rapid development of the EC's own Stabilisation and Association Process. The EU expressed concern at various intervals about the too many, scattered, activities of the Pact and the risk of overlap and duplication of work being undertaken in other fora.  Nevertheless the issues of refugee return and migration and asylum capacity-building were among the positive elements of the Stability Pact's programme for 2001 and have been considered priority issues also by the Commission. Moreover, the Pact provides a framework within which the activities of actors and donors can be developed, based on an agreed  operational strategy and funded by those who have a specific interest (including the EU - the Pact has no funding of its own).


21.2 The Stabilisation and Association Agreements (so far concluded with FYROM and Croatia, for Albania such agreement is foreseen for 2002) include a  significant JHA chapter (with provisions on asylum). The Stabilisation and Association Process, for which the SAA agreements provide the legal basis, remained the main vehicle for the Commission to rehabilitate and develop the region and bring it ultimately in the Euro‑Atlantic structures ‑ the Stability Pact provides a framework for co-operation with other donors and political actors in this exercise.


21.3 The CARDS programme was adopted in 2001, including a separate JHA programme prioritising the sustainable development of effectively functioning JHA institutions particularly those responsible for border management, police co-operation, controlling illegal immigration, visa policy, document security. Asylum system development (as envisaged in the SP Migration and Asylum Initiative) should also receive Commission support and CARDS funding, yet to a lesser extent than the mentioned control measures.


21.4 As reported above, justice and home affairs received higher priority in Commission and Presidency activity inter alia with the convening of a Regional Conference in Sarajevo at the end of March and a subsequent meeting of senior officials in Belgrade at the end of November (see above). Asylum and migration matters were placed high on the agenda of these meetings in order to ensure a balance to protection/admission and control measures.


The Mediterranean  Basin


22.1 Following the adoption of the EU Common Strategy for the Mediterranean in June 2000 and  the first Euro-Mediterranean Conference in Marseilles in November 2000, a second Ministerial conference took place in Brussels on 5/ 6 November 2001. This Conference discussed inter alia asylum and migration matters although no agreement could be reached on the place and significance of the asylum issue in the upcoming Euro-Mediterranean co-operation programme in justice and home affairs. In fact, the full-fledged co-operation on JHA proposed by the EU to partner countries in the Mediterranean basin was rejected by the latter and will be reduced to a programme focusing on a limited number of agreed matters of common interest, most likely legal and illegal migration, judicial co-operation and the fight against terrorism and organised crime. In contrast, the EU is prepared to raise co-operation in legal migration as well as promote the notion of "co-development" in its dialogue with Mediterranean countries - including action to improve the position of migrant workers and families in EU Member States. Also, the fight against illegal immigration, promotion of readmission agreements and the monitoring of  migration flows will be part of future co-operation.


Common Foreign and Security Policy


23.1 In view of the Swedish priority given to civilian aspects of conflict prevention and crisis management, these issues were given much attention at the Goteborg European Council taking stock of developments in shaping the Common European Defence and Security Policy. The EU hopes to have a civilian police force standby for intervention in any future crisis situation by 2003 (overall capability of 5,000, of which 1,000 to be deployable within 30 days, by 2003 latest).


23.2 The EU continued discussions with the UN Secretariat, UN CIVPOL and DPKO regarding future co-operation in crisis-management, conflict prevention and peace-keeping, covering a wide range of still open questions such as mechanisms triggering international involvement in crises,  recruitment procedures, operational co-ordination, command structures etc..


23.3 The outfit of the High Representative now includes an established police unit as part of the Political‑Military Structures for the European Security and Defence Policy, headed by a senior policeman with international mission experience and including a strong core of specialised and qualified police experts. This unit is tasked i.a. with co-ordinating between the civilian and military crisis management sections of the developing EU common security department.  Another function of this newly established police unit is to help develop national structures to identify, prepare and train police forces for deployment as part of an EU force in future situations of crisis management/conflict prevention. In a second stage the EU will establish similar support structures and programmes in the areas of civil administration, rule of law,  the judiciary, and civil protection.


23.4 The Belgian Presidency hosted a Police capabilities conference on 19 November in order to draw together the national commitments and to consider implementation of  a Police Action Plan adopted at the Goteborg European Council. The Conference focused on quantitative and qualitative aspects such as training and selection criteria, as well as guidelines for command and control. As for the military aspects, the Belgian Presidency also organised a Military capabilities Conference later in the day. Defence Ministers agreed on a European Capability Action Plan, incorporating all the efforts, investments, developments and co-ordination measures needed at both national and multinational level to make the European military force for crisis management operational. Both conferences allowed Member States to make voluntary contributions on the basis of national decisions.  It should be recalled that the development of military capabilities does not imply the creation of a European army, and that these capabilities are aimed at conducting crisis-management and peace-keeping operations (so-called "Petersberg tasks") With structures in place, the Union has started to test these structures and its procedures for such purposes, including simulation exercises. Ministers from non-EU European NATO Members and other countries which are candidates for EU accession met with their EU counterparts on 20 November to discuss their involvement in the future EU police forces and military forces for crisis management.


23.5 During most of the year, a dispute persisted with Turkey which, as non-EU NATO member, had threatened to put a veto on EU access to NATO assets (logistics, command structure, planning capabilities), yet a compromise was brokered at the end of the year. This, however, met subsequently with criticism from Greece which prevented the conclusion of final arrangements on the operational capability of the Common European Security and Defence Policy at the Laeken Summit, although the Summit adopted a Declaration for this purpose.


23.6 In a Special Report on the Common Foreign and Security Policy issued in October 2001, the Court of Auditors criticised the lack of transparency in financing this area of EU policy, and called for a clear delineation of responsibilities between the Council and the Commission in the implementation of the CFSP (it is to be recalled that the Commission has established its own Rapid Reaction Mechanism to address emergencies, including the dispatch of police, law administrators etc).








24.1 In November 2001, the Commission presented a proposal for a Framework Decision on Racism and Xenophobia. The instrument is aimed at approximating the legislation of EU Member States on the basis of common definitions and penalties which should facilitate judicial co-operation and mutual legal assistance. The instrument establishes a maximum penalty that is not less than two years. Aggravating circumstances should result in more severe penalties.  The instrument includes an expanded list of racist crimes.


24.2 The introduction of this proposal, based on an existing Joint Action dating back to 1996, follows the adoption of a Directive on equal treatment irrespective of race or ethnic origin in June 2000, a Directive on equal treatment in employment and occupation (including race, ethnic origin as one of a number of non-discrimination grounds) in November 2000, and a  Community Action Plan 2001 - 2006 based on best practices and experiences in Member States which was launched on 1 January 2001.


24.3 The Vienna-based EU monitoring centre on racism and xenophobia continued its monitoring activities and published a third annual report  in 2001 voicing concern over continuing increase in racial and ethnic discrimination at all levels of society in a number of EU Member States. 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.




UNHCR Brussels

December 2001