Update on EU
asylum, migration and other related matters
January – June 2002
All
documents referred to in this paper are available upon request from UNHCR RO
Brussels.
1. SPANISH
PRESIDENCY
1.1 Spain
assumed the EU Presidency during the first half of 2002. Its term ended with a
Summit in Seville which focused on i.a. combating illegal immigration and human
trafficking. This issue had been the main focus of its JHA work programme and
had been the subject of an Action Plan adopted at the beginning of its Presidency
(based on a Commission Communication of November 2001). Asylum issues figured
less prominently on the Spanish agenda, although the Presidency managed to
obtain political agreement on the
Directive on reception conditions for asylum-seekers at the 25/26 April JHA
Council. The Seville Summit focused on the fight against illegal immigration
and adopted Conclusions evolving around visa policy, return policy, sanctions
of smuggling and trafficking, integrated management of external borders,
co-operation with third countries and the need to couple control measures with
a common asylum and immigration policy. As to the latter, the Summit called to
speed up the asylum agenda and set out a road map for the adoption of the
package of remaining draft legislative instruments by end 2003 latest. The High Commissioner had written to the
Spanish Prime Minister prior to the Seville Summit suggesting a number of
solutions for addressing the problems of irregular movement including refugees
and other persons in need of protection. The suggestion to reduce or withdraw
development assistance as a sanction for lack of co-operation by developing
countries in the readmission of illegal residents was not retained by the
Summit.
1.2 As
indicated in its overall work programme, following the tragic events of 11
September 2001, combating terrorism has been one of the main
overall Presidency priorities. At the end of the Presidency, a Framework
Decision on combating terrorism was formally adopted, as well as the European
Arrest Warrant. Both texts were subsequently published in the EC Official
Journal. Political agreement was reached on a Framework Decision on freezing
assets of persons and groups involved in terrorist activity. The EU list of
such individuals and groups was updated on 2 May and again on 17 June through adoption of a new Common
Position and a Council Decision. A new Regulation was adopted in June updating
EC sanctions on persons an entities associated with the al-Qaida network and
the Taliban, as a result of amendments made by the UN Sanctions Committee in
March and April. Agreement was reached on the language to be used in the
anti-terrorism clause which should be included in all agreements with third
countries. A catalogue of current
and future Community assistance measures to third countries in the fight
against terrorism was established. The Presidency put forward a proposal for a
mechanism for evaluating national legal systems in the fight against terrorism
and their implementation. An important element of the fight against terrorism
included measures aimed at
strengthening partnership with the US, focusing on preparations for a judicial
co-operation agreement and an extradition agreement. This, however, met with
concern over the existence of the death penalty in the US which would prevent
an extradition to be carried out. The issue of asylum and terrorism was
discussed in a meeting between Member States, convened by the European
Commission in June, on the basis of the Commission working document of December
2001, and contributions from Member States following a Commission
questionnaire. The meeting decided that an analysis of Member States' practice
on balancing protection safeguards and internal security concerns will be drawn
up. Finally, in May, the Presidency issued a road map of all measures and
initiatives under its Action Plan to combat terrorism.
1.3 In the
area of external relations ‑ Second Pillar- Presidency priorities
included inter alia the Middle East, the common security and defence policy, particularly
co-ordination between Member States in the fight against terrorism; the
situation in Afghanistan; the EU - Mediterranean ("Barcelona")
process and the EU position in the UN (with special emphasis on the
preparations for a Convention against Terrorism, the establishment of the
International Criminal Court and the 2002 session of the Commission on Human
Rights). As for the external dimension of JHA matters the
Presidency focus remained with enlargement (first formal JHA Council meeting
with candidate countries on 28 February; continuing negotiations on the various
chapters of the acquis with closure of the JHA chapter no. 24 for an additional
number of candidate countries), the development of a regional JHA Programme of
Co-operation for the Mediterranean region (adopted at the ministerial meeting
in Valencia on 25 April 2002), co-operation with the US in anti‑terrorist
measures, co-operation with Russia (a first formal JHA Council with Russia took
place on 25 April) and Ukraine (following the adoption of a specific JHA Action
Plan for this country). Moreover,
co-operation in border management and the fight against irregular migration and
human trafficking continued with the Western Balkan countries. The Presidency
presented its update of the multi-annual programme for external relations in
the field of justice and home affairs at the start of its term. Anti-terrorism
measures, crime prevention and control figured prominently in this update,
without any reference to co-operation with third countries in asylum matters.
1.4 The
upcoming institutional reform was
a major concern for the Presidency : the Convention chaired by
Valery Giscard d'Estaing must be ready with its work in time for the subsequent
InterGovernmental Conference (IGC) to complete the next Treaty revision by June
2004 (end of Irish Presidency), taking into account that the Convention work
must be discussed at the national level with parliaments and civil society
prior to the opening of the IGC. Agreement was reached on the Convention working
methods, following the formal
launch of the process on 28 February. Thematic Working Groups (one of them
being on the status of the European Charter of Fundamental Rights, another on
Justice and Home Affairs) were established and started working intensively. In
May 2002, EP and the Commission issued their position paper in relation to the
Convention.
1.5 As
regards enlargement the Presidency's intention has been to pave the
way for the Danish Presidency to close by end of 2002 the negotiations on all chapters with those candidate
countries (all except Bulgaria, Romania and Turkey) which are prepared for
membership by 2004 (next elections of the European Parliament). The remaining
most difficult and complex chapters with the greatest financial implications
were opened during the Spanish Presidency i.e. those on agriculture,
structural/regional policy and budgetary policy ‑ through the adoption of
common EU negotiating positions. As for JHA matters, after Slovenia, Hungary,
Czech Rep. and Cyprus under the Belgian Presidency, Spain closed chapter 24
with Estonia and Malta, Lithuania, Latvia and Slovakia..
Presidency
work programme in justice and home affairs
1.6 As
regards asylum matters, the Presidency achieved consensus by the JHA Council on
the text of the Directive on reception conditions for asylum‑seekers on 25 April
2002. Following legal of the text
and the lifting of remaining parliamentary reservations (Denmark, the
Netherlands) the text was expected to be published in the Official Journal in June.
However, the German Minister of Interior intervened at a late stage querying
whether there is Community competence to legislate in this Directive on access
to the labour market (see below). UNHCR while welcoming the adoption of the
Directive expressed some concern on the provisions on reduction and withdrawal
of facilities. It also regretted the absence of meaningful harmonisation as
regards access to employment.
1.7 The other
asylum priority for the Presidency was to take the negotiations on the Dublin
II Regulation further. Due to fundamental differences of opinion with
Italy and Greece as regards the linkage of responsibility for examining asylum
applications to monitoring the crossing of external borders, no agreement on
the allocation criteria, their hierarchy and implementation could be reached.
France, supported by Belgium, continued to express concern over the so-called
"Sangatte" provisions (tolerating knowingly illegal stay). The
Presidency submitted a number of pertinent questions to senior political level
in an effort to break the deadlock yet to no avail.
1.8 The
Presidency reached agreement on the operational aspects of the EURODAC system in
February. A Council Regulation laying down the implementing rules was adopted
by the JHA Council of 28 February, agreeing on the rules for transmission and
comparison of fingerprints. as well as certain other tasks of the Central Unit.
1.9 The
Presidency also managed to complete a first reading of the proposal for a
Directive on the refugee status/subsidiary protection. Early
January 2002, the Presidency organised in Madrid a Seminar on ‘the
content and scope of international protection’ attended by
representatives of Member States, academics, UNHCR, ICRC, UNHCHR and some NGOs.
The first reading of the draft Directive did not reveal fundamental political
obstacles but some problems of a legal nature have emerged, e.g. with regard to
the qualification as beneficiary of subsidiary protection.
1.10 In the immigration (admission) area,
the Presidency took the discussions on the draft Directive on the status and
rights of long‑term residents further without
reaching agreement on a number of issues, such as whether the instrument should
cover refugees, whether additional requirements for acquiring long-term
residents are needed, whether Member States can exert some discretion in
regulating access to i.a. the labour market and social security and whether
mobility of long-term residents in exercising economic activity should be
unlimited throughout the Union. No further work was done on the Family Reunion
proposal since the Commission published a modified proposal in May only. First
discussions on this modified proposals did not reveal as many difficulties as
with the previous draft, yet the new text is considerably less ambitious from a
harmonisation viewpoint and allows Member States to leave restrictive pieces of
legislation and policy unchanged. First discussions were also held on the draft Directive on admission for the
purposes of labour.
1.11 Most of the migration management issues were dealt with in the context of the fight against illegal immigration. Following the request made at the Laeken Summit and based on the Commission Communication on a joint policy on illegal immigration issued in November 2001, the Presidency proposed an Action Plan to combat illegal immigration which was adopted on 28 February 2002. Six priorities areas are mentioned for intervention: policy on visas, information infrastructure, border control management, police co-operation, legislation on foreigners and criminal law, policy on leave to return and readmission. Apart from a general reference to protection obligations under international law, none of the measures envisaged seem to acknowledge the presence of asylum seekers and refugees among irregular movers, smuggled and trafficked persons.
1.12
Short-term priorities for implementation of this Action Plan focussed on i.a.
improving the quality and effectiveness of external border controls,
particularly at sea (adoption of Council Conclusions in April - twice- and
June) and possibilities for future common management of external borders
(Italian feasibility study presented on 30 May 2002). An Action Plan for integrated border management
was adopted in June following the publication of a Commission Communication on
the issue on 7 May. The Action Plan focuses i.a. on the initiation of joint
operations based on common guidelines which should ensure highest degree of
quality and efficiency, a common
integrated risk analysis model, a common core curriculum for border guard
training and the need for Member States to develop various pilot projects.
1.13 Other
issues put forward in the context of the Action Plan to combat illegal
immigration were readmission and return policy, including negotiations
of re-admission agreements with third countries such as Russia, Morocco,
Pakistan, Macao Sri Lanka and Ukraine and identification of new countries
(China, Albania, Turkey, Algeria) with which such agreements should be
concluded in future. Negotiations on Community readmission agreements with Sri
Lanka and Hong Kong were initialled and were waiting for signature.
1.14 In the
area of visa policy a
Regulation was approved on 24 February to establish a uniform visa
model, and on 25 April a Council Decision on a uniform visa application model
and a Regulation on a uniform residence permit model. Preparations were started
for the revision of the Community list of third countries whose nationals
require visas to enter the Union or who are exempt from that requirement. First
steps for the establishment of a common identification system for visa data
were taken by the adoption of Council guidelines, the establishment of an
expert network and the elaboration of technical specifications.
1.15 The Directive
and Framework Decision on the facilitation of illegal entry and residence
(French initiatives on migrant smuggling) were still awaiting
formal approval and publication in the Official Journal in the absence of
lifting all parliamentary reservations. The same held true for the Framework
Decision on combating trafficking in human beings. Political agreement on both issues had
been reached back in 2001 during Swedish and Belgian Presidency. N.B. The
instrument on trafficking would be formally adopted in July and published in
the Official Journal on 1 August.
1.16 Efforts
by the Presidency to adopt Council Conclusions (prepared by the High Level
Working Group on Migration and Asylum) on measures for preventing and combating
illegal immigration by sanctioning third states unwilling to co-operate in the
readmission and return of their nationals failed given opposition by a few
Member States (France, Sweden, followed by Belgium, Luxembourg, Finland). Among
the proposed measures figured the reduction or withdrawal of development
assistance. The Seville Summit Conclusions refrained from suggesting such a
step and instead emphasised a positive linkage between migration and
development by calling for financial and technical support to third
countries for the readmission of their nationals.
1.17 The need
for improved migration management was the focus of attention at the EU -
ASEM Ministerial meeting in Lanzarote, 4 - 5 April 2002. UNHCR nor States' asylum officials were
invited to this conference and the final Conclusions do not include references
to refugees - as different from illegal migrants - whose treatment requires
specific action, or to the role of international organisations in handling
migratory and refugee matters. Positive in this Declaration are the references
to the contribution of legal migration and the importance of enhancing the
social integration of legally residing migrants, including measures to combat
racism, xenophobia, labour and sexual exploitation in ASEM countries; the need
for a comprehensive and balanced approach to migration management, based on genuine partnership between
countries of origin, transit and destination; the need to address development
issues (including poverty) in tackling the root causes of illegal
immigration; the need to improve
the collection, analysis and dissemination of strategic information on
migratory flows; the organisation of targeted public information campaigns; and
the call to ratify the Palermo Protocols on smuggling and trafficking. The
Declaration includes a separate paragraph on return and readmission calling for human and dignified
treatment. Among the ‑ few‑ concrete measures announced are the
establishment of a network of contact points in ministerial departments, and a
study into the feasibility of establishing an EU ‑ ASEM network of
consular and immigration liaison officers.
1.18 The
Presidency also prioritised the work of the High Level Working Group on
Migration and Asylum in its JHA work programme. It prepared a
modified mandate for the Group, with a view to achieving greater efficiency and
flexibility in its work. with more
emphasis on strategic policy development,
based on increased monitoring and evaluation capacity, and co-operation with Second Pillar Council
groups. Dialogue with partner countries should be enhanced, and the
relationship between migration and development explored in more detail (N.B. a
Communication will be prepared by the European Commission on this issue for
November 2002). The HLWG also prepared, in co-operation with IOM, a proposal
for the return of skilled Afghans in the context of reconstruction, and it
continued dialogue with Morocco on the implementation of the relevant Action
Plan. A new call for proposals (second year) for projects to be funded from the
Commission budget (B 7 - 667) was issued in June.
2. COUNCIL
MEETINGS
2.1 Justice and Home Affairs Council
meetings during first half of 2002
An informal
JHA Council
was held on 14-15 February in Santiago de Compostela. The meeting was
mainly devoted to discussions on the draft Presidency Action Plan on combating
illegal immigration and human trafficking, the fight against terrorism, and EUROPOL.
2.2 At the
28 February, 1 March 2002 JHA Council, the EU adopted the Presidency Action
Plan to combat illegal immigration and human trafficking, in which
the Presidency considered the visa, readmission and return and border
management issues as priorities (see above). At this Council meeting, six
member States decided to make the European Arrest Warrant operational in 2003 -
and not to wait for the deadline of 1 January 2004 as previously agreed. In
addition, agreement on the implementing rules and regulations for the EURODAC
system was reached following withdrawal by France of its reservations regarding technical aspects of the
finger printing system. The adoption of a mandate to be granted to the
Presidency for negotiations with the US for judicial co-operation agreement was
postponed to the 25 April JHA Council. Member States also agreed on the
provisional headquarters for the European Police College in Denmark until a
final decision will be taken.
2.3 At the
25/26 April JHA Council meeting, political agreement (‘general
understanding’) was reached on the Directive on reception conditions
for asylum-seekers (see below). The Council also adopted
conclusions on illegal immigration/human trafficking by sea; reached agreement
on the ARGO programme (successor to Odysseus; formally adopted by
Council Decision of 13 June and published in the Official Journal of 19 June)
and conclusions on combating racism, anti-Semitism and xenophobia following
racist and anti-Semitic attacks in i.a. France. N.B. the Commission proposal
for a Framework Decision aimed at approximating Member States' legislation on
racism and xenophobia, issued in December 2001, continued to be subject of Council negotiations. JHA
Ministers met with their counterparts from candidate countries on 26 April i.a.
for an exchange on measures to combat human trafficking.
2.4 In
addition, Council discussions/ decisions related to EU‑US co-operation in
the area of asylum /migration/border management (after 11 September), the
feasibility of creating a common EU border police (Italian Feasibility Study
presented 30 May –see below-), relations with Switzerland (to include
this non‑EU country in Schengen and Dublin co-operation), Palestinian
asylum‑seekers (following a CIREA meeting earlier in the month, in which
UNHCR participated), judicial co-operation with the US (extradition, joint
investigation teams ‑ and the issue of human rights safeguards),
approximation of sanctions in criminal law (agreement was reached on the
principle of differentiating the minimum level for maximum sanctions), sexual
exploitation of children and child pornography and a decision on criteria for
identifying third countries with which new readmission agreements need to be
negotiated (Algeria, Albania, China and Turkey) - in addition to current negotiations on EC readmission
agreements with Sri Lanka, Morocco, Russia, Hong Kong, Macao.
2.5 JHA
Ministers also met with their Russian counterparts in the
margin of the Council for a review of co‑operation in JHA matters,
including migration, border management, judicial capacity‑building, the
situation in Kaliningrad (a future Russian enclave in the enlarged EU and its
impact on visa policy) and anti‑terrorist measures. A joint Declaration
on the designation of EU ‑ Russian contact points to exchange information
on organised crime was adopted.
2.6 On 30
May, a Conference of Interior Ministers took place in Rome to
discuss the setting up of a European Border Guard Corps on the basis
of an Italian feasibility study and in response to a Commission Communication
on integrated border management published earlier in the month (7 May). Ministers supported the idea of a pilot
project for the police at airports, open for Member States who want to
participate. Ministers also reached a principled agreement on the issue of
sharing out the costs for realising this project. Furthermore they agreed on
join operations, common risk analysis efforts, a common curriculum for the
training of border guards and the creation of a liaison officers network. Yet
the idea of setting up a European border guard is far from being accepted with strong Nordic opposition.
2.7 The JHA
Council meeting of 13/14 June was mainly devoted to the topic of illegal
immigration, integrated border management (on the basis of the 7 May Commission
Communication) and co-operation with third countries in JHA matters in
preparation for the Seville Summit. The meeting adopted Conclusions on joint
measures to combat illegal immigration by sea.
General Affairs Council
2.8 On 11
March 2002, at the General Affairs Council, the EU adopted Conclusions
at the occasion of the 58th session of the UN High Commissioner for Human
Rights. The Council particularly stressed the major role the EU has to play in
the Commission on Human Rights session. Consequently CFSP High Representative
addressed the session stressing that the EU would focus its action in the UN on
conflict prevention and crisis management, alleviation of poverty and a policy
of engagement and dialogue with third countries aimed at consolidating human
rights. Mr. Solana reiterated EU support for the early establishment of the
International Criminal Court following the completion of the required 60
ratifications of the Rome Statute.
2.9 At the
General Affairs Council meeting of 15 April, EU Foreign Ministers
discussed the urgent need for the Union to increase its capacity to deal with
illegal immigration, particularly at sea borders, by stepping up its co‑ordination
of migration control policy and foreign policy. The discussion had been
triggered by a letter from Italian PM Berlusconi referring to recent boat
arrivals in Sicily. Co-operation with countries of origin and transit (Egypt
and other Mediterranean countries) was emphasised as well as the need to make
greater use of readmission agreements.
2.10 The
mandate of the High Level Working Group on Asylum and Migration was modified
in Council on 4 June, with a view to achieving greater efficiency of its work.
More emphasis is laid on strategic policy development, based on increased
monitoring and analysis capacity,
a more flexible geographic scope of its work, more emphasis on regional
approaches, real partnership with countries of origin and transit and close
involvement of Second Pillar Council working parties. Co-operation with
international organisations should also be enhanced i.a. through the joint
submission of funding proposals for operational activity.
2.11 The General
Affairs Council of 17 June held a wide-ranging debate on immigration
policy prior to the Seville Summit. The debate focused in particular on how to
co-operate with countries of origin and transit to jointly combat illegal
immigration. It also adopted four
decisions authorising the opening of negotiations with Switzerland in i.a. the
implementation of the Schengen acquis and Dublin co-operation (parallel
agreement to be concluded).
3. EUROPEAN
COMMISSION - DG JUSTICE AND HOME AFFAIRS
3.1 The
Commission issued on 12 February 2002 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. The main objective of
the proposal is to combat networks
of smugglers and traffickers by offering temporary residence permits to victims
who co-operate with the authorities – it however is not a proposal aimed
at protecting victims or witnesses.
Some Member States have already introduced such schemes in their
national legislation. The proposal generated much interest with the NGO
community, yet Member States gave it a lukewarm response, who criticise i.a.
the, in their view unwarranted linkage between the distinct issues of illegal
immigration and human trafficking.
3.2 On 10
April the Commission issued a Green Paper on a future Community Return
Policy on Illegal Resident as announced in the November 2001 Communication
on combating illegal immigration as well as referred to by the 28 February Council
Action Plan on combating illegal immigration. In publishing this paper, the
Commission is seeking a wide‑ranging debate with partners whose views are
requested by 31 July 2002. A public hearing would be organised on 16 July. The
paper is limited to the return of illegal residents; it does not deal with
voluntary return of legally residing third country nationals (including
refugees). The paper proposes a number of issues to be examined, and places
these in the broader context of the
developing Community asylum and migration policy, and the external
dimension of that policy. It proposes the drawing up of common standards for
implementing returns, improvement of co-operation between Member States
possibly through adoption of a common Action Plan on returns, and the
establishment of a financial instrument. It also has a section on readmission
(policy, agreements). The paper proposes a number of concrete Community
measures aimed at establishing a common European policy on returns: in addition
to Directive on minimum standards for implementing returns, it suggests the creation of a Technical
Support Facility to improve co‑operation between Member States, the
inclusion of a section on return statistics in the forthcoming EU Annual Report
on asylum and migration data, and the use of an on‑line European Visa
Identification System in response to problems of identity checks and travel
documents.
3.3 On 30 April 2002 the Commission issued
a decision to start negotiations with Denmark on selected topics to ensure Denmark's
participation in a selected number of JHA matters. Denmark has a general
opt out and, unless some specific remedial measures are taken, no possibility ‑ contrary to the
UK and Ireland ‑ to opt in on each of the individual legal instruments
(except where they concern Schengen measures). Denmark has expressed an
interest in concluding parallel agreements with the Community to apply some of
the JHA measures: Dublin II Regulation and EURODAC are among these ‑ such
parallel agreements should be seen as transitional measures, maintaining the
ultimate objective of joining the Community JHA acquis (i.e. terminating the
protocol providing for its opt out). This resembles the ongoing discussions on
parallel agreements with Switzerland to include the latter in Dublin II/
EURODAC and other JHA matters.
3.4 On 2 May, the European Commission
published a revised proposal for a Directive on the right to family reunion. This
proposal, asked for by the Laeken Summit, replaces a previous proposal issued 1
December 1999, which had been the subject of very cumbersome Council
negotiations preventing reaching consensus on a number of issues. In the
modified proposal the Commission has tried to preserve what has been achieved
in the negotiations so far and has included as far as possible the compromises
reached in Council. It is therefore less ambitious in efforts to harmonise the
right to family reunion, and also lowers some of the standards included in the
original proposal. The provisions related to family reunification of refugees
remain unchanged, but the definition of the family unit has been narrowed,
reunion in the ascending line rendered more difficult and requirements and
conditions for reunion more stringent.
3.5 On 7 May, the European Commission
published a Communication setting out a number of measures for the
integrated management of the EU's external borders ‑ measures to be
taken on a genuine Community basis rather than as a compilation of national
measures. The document proposes a number of measures around four major
challenges: ensure mutual confidence between Member States in facilitating free
movement of persons; combating terrorism; combating illegal immigration and
human trafficking (while ensuring refugee rights); and guaranteeing the
security of the Union's external borders after enlargement.
3.6 On 18
June the European Commission put forward a modified proposal for a Directive
on minimum standards on asylum procedures, as also asked for by
the Laeken Summit. In comparison with the previous - September 2000 - proposal
this modified text adds four new key features to the original provisions for
inadmissable and manifestly unfounded cases: additional categories of cases to
be processed under an accelerated procedure as inadmissble or manifestly unfounded,
a specific procedure to deal with repeat applications, the possibility to
operate border procedures governed by a lesser number of procedural guarantees
and the possibility to make wider use of detention if deemed necessary for a
quick decision to be made. Changes
have also been made to the provisions on appeal: the text no longer opts for a
uniform institutional model and
the suspensive effect of the appeal is no longer upheld as a general principle.
Although this principle should be respected generally in the regular procedure,
Member States may derogate by virtue of laws and regulations in force on the
date of adoption of the Directive. In accelerated procedures - now proposed to
be widely used - the appeal may have non-suspensive effect. It is expected that
Council negotiations on the instrument will be held during the Greek and
Italian Presidency in 2003.
4. IMPLEMENTING
THE AMSTERDAM AGENDA
4.1The Asylum
legislative agenda
4.1.1.
Draft Directive on asylum procedures, September 2000
Following a call
by the Laeken Summit, the Commission prepared a modified proposal for a Council
Directive on minimum standards for asylum procedures which should take into
account the results of the negotiations in the Asylum Working Party and the
guidelines adopted by the 6/7 December 2001 JHA Council. The Commission consulted Member States at
expert level. A revised text was
issued on 18 June.
4.1.2
Draft Directive on reception conditions for asylum-seekers, April 2001
JHA Council of Ministers
reached political agreement ("general understanding") on the draft
Directive on reception conditions for asylum seekers on 25/26 April. Following
the adoption of the Directive on Temporary Protection last year, this is the
second key element of the common asylum system agreed upon, and the first which
relates directly to the regular asylum systems in Member States. While official
adoption has to await the lifting of parliamentary scrutiny reservations in the
UK and Netherlands, the negotiations can be considered closed. However, in a
last minute intervention, the German Minister of Interior raised the question
of the legal base for the provisions on access to the labour market. Formal
adoption of the instrument has now been delayed. Attached to the Directive are:
-
a Declaration by the Council and Commission committing them
to revisit the scope of the Directive once the instruments on asylum procedures
and subsidiary protection are adopted, in order to apply the Directive
automatically to claims for subsidiary protection.
-
a Declaration in which "the Council notes" that
Austria may regard nationals of
candidate countries as equal to EU citizens and, hence, not apply the provisions of the
Directive to these asylum-seekers who will remain destitute in Austria.
4.2
Draft Regulation
Dublin II, July 2001
4.2.1 After
of a first review of the text last
October, negotiations started on
20/21 March and continued at the level of the Asylum Working Group and
SCIFA.
Many provisions are considered controversial, with the Italian and
Greek delegations maintaining their position that the Regulation must not
include provisions which "penalise" Member States for being first
port of call because of their geographical location, and that the hierarchy of
criteria must be changed (formerly Article 10 must be put at the bottom of the
list). France is fiercely opposed to the "Sangatte" provisions in
Articles 12 and 13 which assign responsibility to a Member State which has
knowingly tolerated the unlawful presence for more than two months, or which
has done so unknowingly for six months or more. Sweden, the Netherlands and
Finland maintain their position that the Dublin II Regulation explicitly must
cover for persons eligible for subsidiary protection. Also, delegations remain
split over the provisions aimed at avoiding separation of family members during
the Dublin procedure, bickering over the definition of family members and the
provision related to unaccompanied minors and time periods for reaching
and implementing a decision. As regards the suspensive
effect of the appeal against a Dublin transfer, a compromise formula was found
stipulating that appeals have in principle non-suspensive effect except when courts or competent review
bodies so decide on a case by case basis if national legislation allows for
this. The European Parliament adopted a series of amendments related to
the draft regulation on 8 April. SCIFA was seized with a number of political
questions by the Spanish Presidency in June, yet the negotiations remained
inconclusive. The incoming Danish
Presidency was tasked by the Seville Summit with reaching agreement on the text
by the end of its term of office.
4.3 Draft
Directive on the refugee definition and subsidiary forms of protection,
September 2001
4.3.1 During the Spanish
Presidency a first reading of the text was completed. No major obstacles were
identified, however, technical negotiations on a number of legal concepts may
prove more difficult in the near future. The incoming Danish Presidency
announced it will make these negotiations a priority with a view to reaching
agreement on the qualification provisions by November (leaving the provisions
on contents of status aside for the
moment). The issue of
non-state agents or persecution remains for the moment uncontested (with
possible exception of France). A main element for debate is the definition of
beneficiaries of subsidiary protection (Article 15) , Member States appear to
be unwilling to go beyond their obligations under international instruments
(art. 3 ECHR mainly) although evolving jurisprudence needs to be taken into
account. There remained some uncertainty about the legal base for the
provisions on subsidiary protection but the Council Legal Service would issue
an opinion in July confirming that Art. 63 (2) (a) does constitute the legal
base.
4.4
European Refugee Fund (ERF), 2000-2005 (adopted September 2000)
4.4.1 An
overview of the allocations from the 5 % Commission budget facility under the
2001 European Refugee Fund was issued : among the interesting projects are a
fund for refugee employment and education (World University Service), a project
in mental health and social care for refugees and asylum‑seekers
(university of Kent), reception and integration of refugee women (university of
Florence) and the ECRE project on good practice in the reception and
integration of refugees. ICMPD and IOM also got funding from the 2001 ERF
Commission allocation ‑ both on return projects (N.B. the IOM awarenesss
campaign in which UNHCR participates is funded from the ERF 2000 budget). UNHCR prepared a funding submission for
the provision of country of origin information in the post-CIREA process under
the terms of the ERF 2002 Community budget facility.
4.5
The Migration legislative agenda
4.5.1 Freedom of movement for
third country nationals
4.5.1.1 On 6
February 2002 the Commission issued a proposal for a Regulation which should
end discrimination against third country nationals legally residing in the EU
yet who are currently unable to maintain their social security rights when they
move between EU Member States to stay, live or work. Since 1971 a Regulation is in force (Regulation 1408/71) on
this subject yet this text only applies to Community nationals and certain
categories of third country nationals - including recognised refugees and
stateless persons. The proposal
extends the provisions of Regulation 1408/71 to all legally, long‑term,
residing third country nationals. It potentially concerns the situation of some
13 million non‑EU citizens who would benefit from a transfer of their
rights to social security if moving to another EU Member State.
4.5.2
Short‑term residence permit for victims of trafficking who are willing to
cooperate with the competent authorities
4.5.2.1
On 11 February, the European Commission issued a proposal for a Directive on a
short‑term residence permit for victims of trafficking who are willing to
cooperate with the competent authorities (see above). This proposal is part of
ongoing EU action to combat trafficking and smuggling networks (see also the
(draft) EC Framework Decision and the November 2001 Commission Communication on
combating illegal immigration and the February 2002 Presidency Action Plan) ‑
in this case by laying down arrangements for victims who lodge complaints or
provide information to the police or the courts.
4.5.3
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
4.5.3.1
Negotiations on this proposal continued during the Spanish Presidency.
Delegations raised the question of the legal basis (for the Commission, Article
63.3 of the Amsterdam Treaty) for initiating the proposal, as well as the
suggestion to automatically grant the right to work when a residence permit is
issued.
4.6.1
Draft Directive on Family
Reunification, December 1999 (modified October 2000, new version issued
2 May 2002)
4.6.1.1 Awaiting the
modified proposal, which was issued by the Commission on 2 May 2002 , the
discussions on this issue were not taken any further during the Spanish
Presidency. In the meantime,
changes made in domestic legislation (in Germany, Italy, Denmark) are likely to
have an impact on the future Council negotiations on the modified proposal.
4.7.1
Draft Directive on the status of long term third country nationals
residents, March 2001
4.7.1.1 A
third reading of this text was completed during the Spanish Presidency. A
number of questions remained open for discussion at SCIFA level during the
subsequent Danish Presidency. These concerned the scope as regards refugees -
some delegations do not agree with the inclusion of refugees in the scope as
they would like to have refugee issues dealt with in separate texts - , the
duration of residence required in order to obtain a long-term status (the vast
majority of delegations however supports the Commission proposal for a period
of five years), the need for additional conditions for acquiring long-term
status (such as accommodation, integration prospects and compliance with tax
obligations), the standards of treatment (equivalent to, or approximative of
the rights and benefits of EU nationals?) and the mobility of long-term
residents in exercising economic activity (some delegations are opposed to an
automatic transfer of the right to work from one to another Member State).
Negotiations would be continued at SCIFA level during the incoming Danish
Presidency.
4.8 Carriers
sanctions
4.8.1
Following the adoption of the Directive on carrier sanctions in 2001 and the organisation
of a Round
Table on 30 November 2001 by the transport industry, in co-operation with the
European Commission, in which Government officials, international
organisations, including UNHCR, and non-governmental organisations
participated, a Steering Committee was established with a view to organise follow-up expert meetings around agreed themes.
Four Working Groups will meet in the course of the year which should culminate
in the organisation of a Second Round Table by end of year. UNHCR participates
in Working Groups on legal instruments (meeting on 22 April) and on the
humanitarian dimension (meeting on 24 June).
4.9 Draft
Directive defining the facilitation of unauthorised entry, movement and
residence and Framework Decision on the strengthening of the penal framework to
prevent the facilitation of unauthorised entry and residence, September 2000.
4.9.1 Both
texts, proposed by the (then) French Presidency back in September 2000, and on
which political agreement was reached in 2001, were scrutinised by legal
linguists yet formal adoption remained in suspense as long as a number of
parliamentary reservations had not yet been lifted. Also, the position of
Ireland had to be verified as regards the implementation of some
Schengen-related instruments. Once the instruments are adopted, foreseen by
autumn 2002 at the latest, Member States must review their national legislation
in order to ensure that the provisions of Directive and Framework Decision are
fully implemented. UNHCR expressed concern about the wording of the texts in
the past, arguing these are not in line with the agreed language of the Palermo
Protocol (as regards the "financial gain" issue) and pointing out
that the compensatory humanitarian clause is merely optional. The Framework
Decision does not aim at real harmonisation but is limited to establishing a
minimum threshold for maximum penalties.
5. OTHER
EU INSTITUTIONS
5.1 European Parliament
5.1.1 Pat
Cox, Irish member from the Liberal group, was elected for a two year and a half
mandate as President of the European Parliament, to succeed Nicole Fontaine.
5.1.2 On 6
February 2002, the European Parliament approved the EU Framework Decision on
combating terrorism and the EU Framework Decision on the European arrest
warrant. The European Parliament,
during the plenary debate, expressed criticism about the lack of parliamentary
consultation on the texts yet eventually approved the two texts. Parliament had
wished the Council to add a few amendments yet these were not accepted - it should
be recalled that Parliament does not have a right to veto in these
matters. The following day the
European Parliament adopted a critical resolution on the 27 December Council
decision establishing a list of terrorist individuals and groups, adopted by
written procedure without any consultation with Parliament. In its resolution
Parliament criticises the absence of consultation and the choice of two
different legal bases under both the second and the third pillar, since such
choice makes it unclear as to which obligations the Member States have
subscribed to. Parliament considers the complex legal construction a method
designed to circumvent parliamentary scrutiny. Parliament also urges the
Council to heed safeguards with
regard to human rights (freedom of expression and assembly).
5.1.3 On 7
February 2002 the European Parliament also adopted a resolution on progress
made in 2001 towards the establishment of the area of freedom, security and
justice in the European Union (Title IV of the Amsterdam Treaty). Regarding
asylum and immigration, the Parliament regrets that the transfer to the first
pillar has not yet resulted in any guarantee of greater effectiveness because
of the perpetuation of voting by unanimity and the absence of co‑decision. Parliament regrets the absence of
progress in negotiations in Council and that with the exception of the
Directive on Temporary Protection all other progress in Council in 2001 has
been on instruments of a repressive nature. As regards the institutional
aspects, Parliament reiterates its call to the Council to improve consultation
with Parliament allowing the latter to comment on the drafts that are current
and on which political agreement has not yet been reached ‑ in order to
allow the inclusion of the substance of Parliament's comments in the final
version of the Council decisions (at the moment, Parliament comments against
the original Commission draft which at the time of parliamentary discussion has
often undergone major amendments during Council negotiations).
5.1.4 On 5
February, the European Parliament adopted its amendments to the draft Directive
on the status of long term third country national residents. These amendments are of a rather
restrictive nature, not supported by the rapporteur who was in favour of the
Commission approach. On 26 April, the European Parliament adopted its
amendments to the draft Directive on reception conditions, which was agreed
upon in Council the same day however. The European Parliament adopted its
amendments to the Dublin II Regulation on 9 April: while agreeing with the
overall approach taken by the Commission, the Parliament asks for some
improvements in the text particularly as regards family reunion, unaccompanied
minors, the application of the humanitarian clause and data protection
provisions. On the same day, the European Parliament also delivered its opinion
and amendments on the ARGO programme (which the JHA Council would approve later
that month).
5.1.5 On
17 April, a public hearing took place on ‘respect for human rights,
the situation in the EU in 2001’ to which UNHCR Brussels contributed.
5.1.6 During
the reporting period the European Parliament was also in the process of commenting on the Commission
Communication on an open co-ordination mechanism in asylum, the Commission
working document on asylum and terrorism (rapporteur Mr. Robert Evans), and
drawing up its amendments on the draft Directive on the qualification as
refugee/beneficiary of subsidiary protection (rapporteur Ms. Jane Lambert).
UNHCR and NGOs were in close contact with rapporteurs and parliamentary staff
in preparing these reports.
5.2
Committee of the Regions
5.2.1
The Council appointed 222 new members of the Committee of Regions in February.
A new President was also elected. T he Committee, a consultative body created
by the Maastricht Treaty, and whose members serve on a four year term, adopted a report on asylum,
immigration and racism in May. The
report, while supporting the Commission’s proposals on asylum and
migration, calls for greater involvement of cities and regions in drawing up
policies and suggests increased funding for the services local and regional
authorities provide in terms of housing and education and other social services
to asylum seekers, refugees and migrants. The committee was also in the process
of drawing up a number of other reports on i.a. the ARGO programme, asylum and
migration-related Communications issued by the Commission in 2000 and 2001, and
the issue of asylum and terrorism.
5.3 Economic and Social Committee
5.3.1 This
Committee, representing the views
of employers, employees and various interest groups (socio-professional sector,
civil society), has been increasingly active in commenting on various
legislative and policy initiatives taken by the Commission. During the
reporting report, the Committee issued opinions the draft Dublin II Regulation;
the draft Directive on the qualification as refugee/beneficiary of subsidiary
protection; the draft Directive on long-term residence, the modified proposal
on family reunion, the Commission Communication on combating illegal
immigration; the Commission Communication on the open co-ordination mechanism
in asylum; the Commission Working Document on asylum and terrorism; and the
Commission proposal for a directive on trafficking victims who are willing to
co-operate with the judicial and police authorities. The committee also adopted
an own-initiative report on immigration, integration and the role of civil
society, in which the Committee sets out how it sees the contribution of civil
society to shaping the area of freedom, security and justice. It calls i.a. for
a Community framework programme to promote the social integration of immigrants
and refugees. In early September 2002 the Committee will organise a conference
on the issue with the support of the European Commission.
6. COUNCIL FORA
6.1 CIREA
6.1.1
During the Spanish Presidency, CIREA invited UNHCR for an exchange on Rwanda,
Colombia and the Central Asian republics of Turkmenistan, Uzbekistan and
Kazachstan, as well as the
application of art 1 D of the 1951 Convention and the situation of Palestinian
refugees. Expert papers were
issued on the Central Asian Republics, and a Background paper on Rwanda was in
preparation. A note on the application of art. 1 D to Palestinian refugees and
an overview of their situation in Middle eastern countries was also in
preparation. In March, COREPER decided that CIREA as a Council body would be
discontinued as of 1 July 2002, by which date the Commission would take over its
work. Since then the Commission has created a new expert group called EURASIL
which should continue many of CIREA's functions, particularly the exchange of
country of origin information, benefiting from written and oral UNHCR
contributions.
6.2 UNHCR
AND THE EUROPEAN UNION
6.2.1
Agenda for Protection
The
European Union - both the Commission and the EU Member States - actively
participated in the preparations of the Agenda for Protection which was agreed
upon in the June 2002 Standing Committee meeting for transmission to the next
EXCOM session. The European Commission also prepared background papers for the
final series of meetings organised within the framework of the third track of
the Global Consultations in March.
6.2.3
UNHCR commentaries
In March 2002,
UNHCR published its comments to the draft Regulation Dublin II Regulation.
UNHCR was also preparing commentaries on the Commission Communication on a
Community Policy on Illegal Immigration and the Commission Green Paper on
return, both of which would be issued in July. In June, UNHCR published a
comprehensive Memorandum for the incoming Danish Presidency outlining its main
priorities for the further development of a consistent, coherent and balanced
asylum and migration policy.
6.2.4
Semestrial Partnership UNHCR - European Commission DG JHA
In mid
February 2002, UNHCR and the European Commission met in Geneva for their
bi-annual 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 Laeken Summit Conclusions and the legislative agenda in asylum and migration
areas. It also addressed future information exchange (CIREA and Statistics),
the external dimension of the EU JHA policy and the DG JHA funding instruments
and programmes and the possibility to
envisage a more structured programming dialogue.
6.3
ENLARGEMENT
6.3.1 During
the Spanish Presidency the pace of negotiations with candidate countries
continued unabated. After Slovenia, Hungary, the Czech Republic and Cyprus at
the end of last year, chapter 24
was closed for Malta and Estonia in March 2002, Latvia and Lithuania in May 2002, and Slovakia in June 2002
(the JHA chapter with Poland would be closed in early July 2002).
Early 2002,
the Commission developed a post chapter 24 monitoring strategy developing techniques, tools and means
to be used in the next two years for measuring commitments made by candidate
countries upon closure of this chapter. The Commission undertook in various
areas a screening exercise/peer review to make sure the recent legislation is
being aligned with the acquis. It also conducted targeted monitoring missions.
The pre-accession budget was increased in order to make provision for
increased institution building
efforts. Together with the Council (Collective Evaluation Working Group) the
Commission drew up a monitoring table per country reflecting the shortcomings
identified in the EU Common Positions (unofficial Commission document for
bringing the negotiations on the chapters of the acquis to a satisfactory
conclusion) as well as any commitments made by the candidate country. Such
tables will be regularly updated and will help record progress made. In
parallel, EC Delegations and Member States Embassies in capitals contributed to reporting on specific
items set out in the monitoring table. The Commission also prepared a report on
the monitoring of commitments made by candidate countries for the Seville
European Council in June 2002.
6.3.2
Particular attention was given to the pre-accession strategy for Bulgaria and
Romania which do not yet fulfil the economic Copenhagen criteria, as well as
Turkey, which continued mobilising efforts for opening membership talks with
the EU before the end of 2002. For the first time candidate countries were
invited to participate as full members in a working session on economic and
social modernisation – referred to as the Lisbon strategy - at the
Barcelona European Summit on 15/16
March 2002. Candidate countries were also represented at the JHA
Ministerial Council in February 2002. In addition, newly elected European
Parliament President Cox, has invited deputies of candidate countries to
participate with an observer status in EP debates as of the signature of the
accession treaties.
6.3.3 The Commission issued in
March 2002 a document ‘Explaining Enlargement ; a progress report on the
communication strategy for enlargement’ analysing trends in public
opinion in Member and Candidate States towards enlargement, suggesting various
means and tools to reinforce the Union's communication strategy to meet the
challenge of explaining the benefits of enlargement to all concerned (i.e.
about 400 millions citizens).
6.3.4 UNHCR worked closely
with the Commission services in raising the profile of asylum issues during chapter 24
negotiations. A series of updated background notes on the state of play in
asylum capacity-building in candidate countries was prepared. Commission and
Member State experts visiting candidate countries during monitoring
missions/peer reviews were met by UNHCR staff. A number of asylum-related
projects were included in the last round of pre-accession assistance in JHA matters.
Close contacts were also maintained with the Council Collective Evaluation
Group which continued its review of the legislative, administrative and
judicial aspects of the JHA systems in a selected number of candidate
countries.
7. EXTERNAL DIMENSION
7.1
During the reporting period, Justice and Home affairs co-operation between the
EU and the Eastern European region intensified, focussing on combating illegal
immigration and international crime, including human trafficking. With Russia, the
Presidency developed a work plan on the implementation of the EU Common
Strategy in which the fight against terrorism and the co-operation on JHA
matters are highlighted. A Ministerial JHA meeting took place on 25 April
(Co-operation Council), followed by an EU-Russia Summit. The issue of the status of Kaliningrad – and
more importantly the right of free movement of persons -, once Lithuania
becomes an EU member was addressed at regular intervals. Negotiations for
concluding an EC readmission agreement continued to encounter resistance from
Russia. The prospects of concluding such an agreement with Ukraine appear to be
more promising, as this is a priority issue included in the JHA Action Plan for
Ukraine . A scoreboard for the implementation of this Action Plan was prepared.
In late January the Ukrainian Border Police organised a seminar in Brussels to
present to the EU institutions Ukrainian’s efforts to address illegal
immigration and reinforce their border management system.
7.2 UNHCR prepared a 2 Million Euro
submission to the Commission,
TACIS Unit, DG External Relations on asylum related projects in the Western
CIS
(Ukraine, Moldova and Belarus) for implementation in 2003 and beyond. The
Swedish Migration Board together with UNHCR submitted to the Commission a
project proposal to finance some follow up seminars and workshops to the
so-called Soderkoping process (Western CIS countries and bordering candidate
countries).
7.3 The EU
continued to strengthen its relationship in JHA matters with the five Central
Asia republics. Discussions were held on 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. UNHCR submitted a project proposal for support in asylum
capacity-building to the HLWG
7.5 UNHCR continued its dialogue with the
Office of the Co-ordinator the Stability Pact in Brussels (as of 1 January 2002
Mr. Erhard Busak succeeded Mr. Bodo Hombach). The Office, through its seconded
staff for refugee return and asylum capacity-building (the latter Vienna-based
in the MAI unit), took the work of the Pact in refugee work forward. Mr. Soren Jessen-Petersen, former
Assistant High Commissioner, was appointed chairman of the Refugee Return
Initiative, followed by his designation as chairman of the Justice and Home
Affairs working table (overseeing the work of the MAI unit). UNHCR continued to provide substantial
inputs in the preparations of National Action Plans for asylum
capacity-building, on the basis of needs assessments and strategy papers, drawn
up within the framework of the MAI initiative. UNHCR was also prominently involved in discussions of the
working tables and the Regional Table hosted in Bucharest in June related to
refugee and asylum issues. The Regional Table decided to focus on a limited
number of priority objectives for the Stability Pact for 2002, among which
figures refugee return (target set for sustainable solutions for at least
100,000 refugees and IDPs).
7.6 Following the EU decision to
establish an EU Police Mission (EUPM) in Bosnia and Herzegovina to follow on
from the UN International Police Task Force (IPTF) as of 1 January 2003, UNHCR
staff participated in training courses for future police units organised in
Germany and France. An EUPM planning team was deployed in Sarajavo as part of
the arrangements to ensure a smooth transition between the IPTF and the EUPM.
The
Mediterranean Basin
7.8 In view
of the Euro-Mediterranean Ministerial session on 22-23 April in Valencia, the
European Commission published in February a Communication on the
Euro-Mediterranean Partnership which aimed at drawing up a balance sheet of the
progress achieved, as well as putting forward new ideas. Prior to the Valencia
Ministerial meeting, senior officials of EU Member States and Mediterranean
partner countries met regularly to prepare a EUROMED Regional Programme in
Justice and Home Affairs (called "Freedom, Justice and Governance").
Thanks to some consistent lobbying by UNHCR and others, the programme,
eventually adopted by EU‑ Mediterranean Ministers in Valencia on 22 ‑
23 April, includes a reference to asylum capacity-building as an element of
mutual interest and co-operation. As a result of the situation in the Middle
East, Syria and Lebanon did not attend and hence did not sign up to the various
texts adopted, yet it is expected that both countries will continue their
co-operation within the framework of the Barcelona process.
7.9 In late
May, UNHCR had a first exchange of views with Commission DG JHA services on the
future implementation of the asylum chapter of the Valencia regional Action
Plan on JHA matters, focussing on awareness raising, including training and
exchange, based on a needs analysis, NGO capacity-building and a regional
dialogue among all partners concerned.
Common Foreign and
Security Policy
7.10 During
the Spanish Presidency, various Council bodies responsible for the CFSP focused
their work on how to bring the fight against terrorism within the remit of the
CFSP, including the European Security and Defence Policy. The Seville Council
adopted a Declaration to this effect.
Further progress was made in the development of the civilian and
military capabilities and it was decided to establish a EU Police Mission in
Bosnia and Herzegovina as of 1 January 2003. The Seville Summit also expressed
the Union's willingness to take over from NATO in fYROM at the end of NATO's
mandate. Discussions with Greece continued concerning Turkey's involvement in
the ESDP and access to NATO assets. In the civilian field, work continued in
the four priority areas (police, the rule of law, civil administration and civil
protection) on both the qualitative and quantitative aspects of the
capabilities. ESDP structures and
decision-making procedures were tested during a first crisis management
exercise conducted by the Union. A special conference was held on rule of law
commitments, similar to previous conferences on police capabilities.
8. RACISM AND
XENOPHOBIA
8.1 Council
negotiations continued on the draft Framework Decision on Racism and Xenophobia presented by the
Commission in November 2001. 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 instruments establishes a maximum
penalty that is not less than two years; aggravating circumstances should
result in more severe sanctions. The text includes an expanded list of racist
crimes. The Commission has entered a legal squabble with the Council over what
criminal law measures on racial discrimination should be included in the
Framework Decision, in particular "incitement/instruction to
discrimination". The Commission believes that "instruction to
discriminate" on the basis of race is already covered by the Racial
Equality Directive 2000/43/EC, a First Pillar instrument and, hence, does not
need to be included in a Third Pillar Framework Decision - whereby sanctions
for such crime would remain outside Community legal action, and would be
subject of agreement on minimum levels of maximum penalties rather than real harmonisation..
Yet the majority of Member States maintain the view that all criminal law
issues - in this case on racial discrimination - must be regulated in the Third
Pillar. The discussion prevents the rapid adoption of the instruments for the
time being. The European Parliament adopted its opinion and amendments to the
Commission proposal in early July 2002, calling for clarification of certain
concepts (such as freedom of expression and the definition of intent), and
softening some amendments whereas toughening others.
8.2 The 25/26
April JHA Council adopted a set of Conclusions on Racism, Anti-Semitism and
Xenophobia following a series of attacks on Jewish and Muslim buildings (see
above).
8.3 The
European Parliament actively contributed to the International Day For the
Elimination of Racial
Discrimination on 21 March 2002 by organising a debate on the subject.
The Commissioner for Social Affairs, Anna Diamantopoulou, expressed concern
over the rise of hostility towards migrants and refugees and called on Member
States to transpose the two anti-discrimination Directives into their national
legislation, i.e. the June 2000 Racial Equality Directive and the November 2000
Directive on equal treatment in employment and occupation (including race,
ethnic origin as one of a number of non-discrimination grounds). The European
Monitoring Centre on Racism and Xenophobia in Vienna also made a statement at
this occasion., as it did on 8 April, at the occasion of the Roma Day.
UNHCR Brussels
July
2002