Protection against refugees vs. refugee protection

6 janvier 2010 | Par Sebastian RIETZ

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The state-of-play in the creation of a Common European Asylum System

The right to asylum designates the human right to seek protection in another country. Thus, asylum constitutes a form of protection given by a state on its territory based on the principle of non-refoulement and internationally or nationally recognized refugee rights. It is granted to a person who suffers a lack of protection in his or her country of citizenship or residence principally for fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. This article focuses on the development of a common European policy regarding asylum that, since the entry into force of the Treaty of Amsterdam in May 1999, has fallen within the range of competence of the European institutions. Despite the good intentions to develop a generous policy based on humanitarian principles for those in need of international protection, the reality for asylum-seekers often is a different one due to the concentration on combating illegal immigration.

The legal basis of a common policy on asylum

During the attempt to cross the open sea by boat in order to reach European shores, hundreds of migrants and asylum-seekers are risking their lives, every month.

Source : noborder network, Flickr.com

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Rescue operation off the Canaries

During the attempt to cross the open sea by boat in order to reach European shores, hundreds of migrants and asylum-seekers are risking their lives, every month.
Source : noborder network, Flickr.com

Initially, the provisions of the Treaty of Rome of 1957 establishing the European Economic Community did not contain any Community competences as regards asylum and immigration. The foundations of a European asylum policy were set in the 1980s by police cooperation and informal working group meetings (in particular the so called “TREVI-group”) between member states, leading to the strictly intergovernmental framework of the Schengen Agreements in 1985. Though, the adoption of the Single Act in 1986 aiming to establish a single market that involves the free movement of persons in an “area without internal borders” forced the member states to develop a common approach towards asylum in order to compensate the apprehended “security risks”. The Treaty of Maastricht of 1992 formalised the intergovernmental cooperation within the third pillar under the aegis of the EU – asylum policy became a “matter of common interest”. Decisions were adopted unanimously by the member states within the Justice and Home Affairs Council and in the absence of any parliamentary and judicial control – refugee protection remained an exclusive competence of national governments.

The Treaty of Amsterdam can be seen as a qualitative step forward in European asylum policy since measures on external border controls, asylum and immigration as well as the Schengen acquis for the most part were transferred to the Community pillar in order to implement an area of freedom, security and justice. By this rather astonishing acceleration of the European integration process member states handed over competences in fields so far considered as an integral part of national sovereignty. Nevertheless, member states did only agree under reservation by keeping unanimity decisions during a five-year transition period. Only after this period they were ready to accept co-decision and qualified majority voting provided that the Council had previously adopted Community legislation defining the common rules and basic principles governing these issues. In addition, the United Kingdom, Ireland and in particular Denmark decided not to apply all or part of the measures adopted in the area of asylum and immigration policy.

After ratification of the Lisbon-Treaty by the Czech President, the legal framework of European asylum policy has changed, once again, with the entry into force of the Treaty on 1 December 2009. Thus, the Union shall share competences with the member states regarding the creation of an area of freedom, security and justice, according to article 3 and 4 TFEU. Consequently, the EU’s legislative power is preferential while respecting the principle of subsidiarity. The new article 67 para 2 and article 78 TFEU establish an explicit legal basis for the creation of a Common European Asylum System (CEAS) and stipulate co-decision pursuant the ordinary legislative procedure. Furthermore, the European Court of Justice now are competent to review the legality of EU-institutions’ acts and their compatibility with the now binding Charter of Fundamental Rights. Previous restrictions concerning the legal protection in issues dealing with Home Affairs and the limited right of action for individuals were omitted.

The political aim of a Common European Asylum System

In particular, Mediterranean countries like Malta, Italy or Greece due to their geographical situation are in difficulty to take the proportionally high amount of asylum-seekers.

Source : Audiovisual Service of the European Commission

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Asylum-seekers in a reception centre in Malta

In particular, Mediterranean countries like Malta, Italy or Greece due to their geographical situation are in difficulty to take the proportionally high amount of asylum-seekers.
Source : Audiovisual Service of the European Commission

The legal framework for the creation of a common policy on asylum has been established by the Treaty of Amsterdam. To fill this framework with substance, the Heads of State or Government launched the “Tampere Programme” at the correspondent European Council in Tampere (Finland) in October 1999. One of its ambitious political goals is to establish a CEAS and to implement a common policy on asylum with a view to realise an area of freedom, security and justice. The ultimate objective is to make the EU a single protection area for refugees, which guarantees to persons genuinely in need of protection access to a high level of protection under equivalent conditions in all member states. The underlying idea of the CEAS, as defined in the Tampere Programme, consists in the establishment of a common asylum procedure and a uniform status for those granted asylum valid throughout the EU. Concretely, the aim pursued in the first stage was to harmonise member states’ legal frameworks in the field of asylum within a five year period on the basis of common minimum standards and on the full and overall application of the Geneva Convention on Refugees of 1951 – signed by all EU member states – and its principle of non-refoulement.

This approach has been confirmed by the European Council in Brussels in November 2004, where the “Hague Programme” was adopted – setting the agenda for the next five years. During the preparation process, the influence of the pivotal goal of preventing and combating terrorism was obvious as a result of the attacks in Madrid on 11 March 2004. Security concerns as combating illegal immigration and external border controls via the creation of the “European Agency for the Management of Operational Cooperation at the External Borders” (FRONTEX) are still predominant in the scope of EU asylum policy. However, the Hague Programme also contained the commitment to fully respect fundamental rights, as guaranteed by the European Convention on Human Rights and the EU Charter of Fundamental Rights, including the explanatory notes, as well as the Geneva Convention. After evaluation of the first stage instruments and initiatives, the goals set out for the second phase were to achieve both a higher common standard of and greater equality in protection across the EU and to ensure a higher degree of solidarity between the member states. To achieve these goals it was considered to foster practical cooperation between them and the external dimension of asylum by 2010.

The Commission’s Policy Plan on asylum of 17 June 2008 defining a road-map for the years to come contains a common European approach. The aim is to approximate conditions for asylum-seekers in order to ensure that wherever an asylum-seeker makes his or her application in Europe, there is certainty that he or she is able to access support, have a fair hearing and not be disadvantaged in another European country. Through this, secondary movement and a disparate repartition of refugees from one member state to another shall be avoided. It explicitly states that the establishment of a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection across the EU shall be implemented by 2012. To uphold the Union’s humanitarian and protection tradition and to ensure the respect of fundamental rights, protection has to be accessible to those who are in need of it.

The integration of asylum policy in two phases

On Tuesday 22 September 2009, the French authorities dismantled the makeshift camp of migrants and asylum-seekers on their way to the United Kingdom, known as « the Jungle », in the woods next to the city of Calais.

Source : Zoriah, Flickr.com

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Homeless Afghan refugee in France

On Tuesday 22 September 2009, the French authorities dismantled the makeshift camp of migrants and asylum-seekers on their way to the United Kingdom, known as « the Jungle », in the woods next to the city of Calais.
Source : Zoriah, Flickr.com

The harmonisation process of European asylum policy is taking place in two phases. During the first phase, the foundations of a CEAS have been laid down by adopting the four main legal instruments on asylum, which constitute the present acquis. (1) The so-called “Dublin II-Regulation” determines that the member state which allowed an asylum-seeker to enter EU-territory is responsible for assessing the application and orders the transfer to the state responsible in such cases. This measure is seconded by the EURODAC-system, a data-base used to store and compare fingerprints of claimants. (2) The Reception Conditions Directive guarantees minimum standards for an equal reception of asylum-seekers in all member states, including housing, education and health. (3) The Qualification Directive contains a number of criteria for qualifying either for refugee or subsidiary protection status, defines what rights are attached to each status, and thus introduces a harmonised system for subsidiary protection. (4) Finally, the Asylum Procedures Directive establishes equivalent minimum standards and safeguards for asylum-seekers in their procedure. In addition to the legislative work, measures in the field of refugee protection are financed by the European Refugee Fund since 2000.

However, after completing the first phase of the Hague Programme there is still a need for further harmonisation to achieve the goal of a CEAS. The evaluation of the first stage instruments and initiatives not yet accomplished, the European Commission already launched the second phase by publishing a Green Paper on the future CEAS in June 2007. In this second stage the approach that is to be adopted shall be an integrated and comprehensive one, seeking to improve all aspects of the asylum process. The results of the subsequent public consultation process with a wide range of stakeholders were presented in the abovementioned Policy Plan on asylum. The Commission proposed as upcoming measures a three-pronged strategy that focuses on (1) better and more harmonised standards of protection through further alignment of member states’ asylum law, (2) effective and well-supported practical cooperation and (3) a higher degree of solidarity and responsibility among the member states, as well as between the EU and third countries.

The criticism on European asylum policy

Refugee center near Brussels

Often, refugees seeking protection are detained to manage illegal immigration. A refugee committed suicide behind these barbwires.

Source : han Soete, Flickr.com

From the point of view of the European Parliament, the Council of Europe, and many NGOs and refugee protection organisations like UNHCR, ECRE or Amnesty International, the measures adopted do not meet the requirements to establish high standards of protection and a fair proceeding for asylum-seekers, but are perpetuating the foreclosure against refugees. The fear of terrorist attacks and a “massive inflow” of people in need and of illegal immigrants resulted in the development of an asylum policy considered under the sole angle of security risks. Up to today, European harmonisation in the area of asylum falls under a more general concern to control (illegal) migratory flows leading to the installation of physical and legal barriers at the external borders of the EU – a situation that is blamed by the expression “fortress Europe”. These measures are supplemented by visa requirements, sanctions imposed on the carriers, fast track procedures, detention of asylum-seekers, and restrictive provisions for family reunion on national level. The debate on externalisation and regionalisation of refugee protection, starting in 2003, and a closer cooperation with countries of transit and origin are still ongoing, as the example of the bilateral readmission agreement between Italy and Libya shows.

These organisations criticise the double-faced European human rights policy that also results in the push-back of refugee boats on the high seas to the African coast often without providing water and fuel. People seeking protection are removed to transit countries like Libya, Turkey, Mauretania or the Ukraine, without any substantive consideration of their claims. Hereby, the EU and its member states are violation the non-refoulement principle and, consequently, international law and in particular the European Convention on Human Rights. They are accepting that refugees from Eritrea, Sudan or Somalia may be once again the victims of serious human rights abusesin countries like Libya or in their countries of origin. Recently, the enforcement of nightly extraditions by the Greek authorities to Turkey was reported, further straining the already difficult relations between both countries. As a consequence of these restrictive European measures, the number of asylum claims within the EU declined from 680.000 in 1992 to only 220.000 in 2007 – a trend that is contradicting global tendencies. This year, already more than 500 people died during their attempt to cross by boat the Strait of Sicily alone. The estimated number of unreported cases for the maritime borders of the EU runs into the thousands.

According to the beforementioned NGOs and refugee protection organisations, the first phase instruments can be seen as consent on the lowest common denominator level and show important weaknesses concerning their incomplete transposition to national law and the remaining discretion of national authorities. As a result, national decisions about asylum claims defer significantly, depending on the member state. In addition, asylum systems of border-states like Malta, Italy and Greece are under great pressure due to their geographical position. The provisions of the “Dublin II-Regulation”, denying asylum-seekers to apply for asylum in the member state of their choice, aggravate the situation. However, the majority of the member states are stubbornly sticking to the Dublin-system in its current form, because they clearly benefit from it. The perpetuation of the status quo would only be acceptable, if all countries had the same standard of protection. The example of transfers of refugees to Greece and the alarming accommodation and protection conditions show that this is not yet the case. As a matter of fact, people seeking refuge do not have access neither to a fair asylum procedure nor to an effective remedy, due to the serious deficiencies of the Greek asylum system. For this reason, UHNCR advised to stop their transfer to Greece, for the present – an evaluation that is followed by several national courts. Some refugee organisations now have submitted a claim to the Commission concerning failure to comply with Community law. In order to establish a fair and efficient CEAS, the reception conditions and procedures have to be improved and effectively harmonised. The concepts of “safe third country” and “safe country of origin” meet with massive criticism, because they allow member states to reject a claim as “inadmissible” or “unfounded”, to return refugees without a substantive consideration of their application, and thus to discharge from their responsibility. Moreover, the rules on qualification of refugee or subsidiary protection status have to be adjusted to conform to international refugee law and in particular the Geneva Convention.

The future of a common European asylum policy

Justice and Home Affairs Council meeting

Despite the continuous affirmation of European solidarity, tangible commitments in establishing a human asylum policy will only arduously be reached, in the future.

Source : Fredrik Persson/Government Offices, Se2009.eu

The European Pact on Immigration and Asylum, adopted by the European Council in October 2008 in Brussels, was designed to trigger a new impulse to build up a “Europe of asylum”. Therefore, the objectives laid down in the Hague Programme and in the Commission’s Policy Plan on asylum shall be implemented by 2012. Furthermore, a European support office –that shall be based in Valetta (Malta) – and solidarity mechanisms for overstrained member states shall be established. The “Stockholm Programme” that has been approved under the Swedish presidency during the European Council on 11 December 2009 sets out the priorities for the five years to come. It reaffirms the 2012 deadline to complete the CEAS as well as the abovementioned goals. During the negotiations, a consensus on the basis of the Commission proposal became apparent, although the ministers of Justice and Home Affairs introduced further restrictive amendments. Due to UK’s resistance, the reference to mutual recognition of protection decisions in the initial text were dropped. In addition to the commitment to high standards of protection and solidarity measures, the Stockholm Programme aims for a fair and efficient asylum procedure with comparable treatment and comparable outcome in all member states. It also contains – at the request of the Netherlands – a pledge to take steps to prevent further tragedies at sea and to establish more accurate statistics on the loss of lives in the Mediterranean. It also makes it clear that border controls should not prevent refugees from finding protection in the EU. Despite these commitments, refugee protection and human rights organisations are still concerned that the Programme will extend restrictive EU measures perpetuating the foreclosure against refugees as well as the external dimension of European asylum policy. Also the Dublin-system, as the cornerstone of a CEAS, has not been questionned.

The Commission has already suggested proposals for a revision of all existing legislative instruments and tried to be in line with international refugee law. These proposals indeed present a considerable improvement of refugee protection, compared to the present situation, and should definitely be welcomed. Nevertheless, one has to wait for the political outcome. During the last Justice and Home Affairs Council on 30 November 2009, the Commissions’s proposals faced massive criticism particularly by Austria, the United Kingdom, Germany and France. Though, the co-decision procedure will increase the influence of the European Parliament. However, these proposals are only designed to improve the conditions of asylum-seekers within the EU, but not to facilitate access to European territory. A fundamental paradigm shift, as suggested in the intended common approach on immigration and asylum, is – except the combating of illegal immigration – still missing. Possible progress in European asylum policy will continue to depend on the will of all political actors. Of course, the economic and social costs of the reception of refugees and the absorption capacity of member states have to be considered. This shows the urgent necessity of an efficient solidarity and burden sharing mechanism within the EU. Ultimately, the Union must be measured by its commitment to respect human rights and notably the right to asylum that is guaranteed in article 18 of the EU Charter of Fundamental Rights in order to alter the current protection against refugees into a real refugee protection.

Headline Photo : Flickr, Libertinus

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