REFUGEES AND ASYLUM LAW IN EU

The process of developing a body of international law, conventions and guidelines to protect refugees began in the early part of the 20th century under the League of Nations, the predecessor of the United Nations. It culminated on 28 July 1951, when a special UN conference approved the Convention relating to the Status of Refugees.

The 1951 Refugee Convention clearly spells out who is a refugee and the kind of legal protection, other assistence and social rights he or she should receive from the states parties to the document.Eqaully it defines a refugee´s obligations to host governments and certain cathegories of persons, such as war criminals, who don´t qualify for the refugees status.

This first instrument was limited to to protecting mainly European refugees in the aftermath of World war II, but a 1967 Protocol signed in New York expanded the scope of the Convention as the problem of displacement spread around the world. It removes geographical limitation written into the original Convention under which mainly Europeans involved in events occuring before 1 January 1951, could apply for refugee status.

The original document also inspired the 1969 Africa Refugee Convention and the 1984 Latin American Carthagena Declaration.

According to the 1951 Convention relating to the status of refugees, a refugee is somone who:

• Has a well founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion
• Is outside his/her country of origin
• Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of persecution.

The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, a regional treaty adopted in 1969, added to the definition found in the 1951 Convention to include a more objectively based consideration, namely

• Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously distubing public order in either part or the whole of his country of origin or nationality.

In 1984, a colloquium of Latin American government representatives and distinguished jurists adopted the Carthagena Declaration. Like the OAU Convention, the Declaration adds a more objectively based consideration to the 1951 Convention refugee to include:

• Persons who flee their countries “because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”.

In most states a person fleeing war or genocide is not authomatically recognized as a refugee. Only countries of Latin America and Africa recognise such persons as liable to be granted asylum. People from area of conflict are required to prove that they personally were exposed to violence on the grounds mentioned in the 1951 Refugee Convention. It is often practically impossible after the miseries and difficulties the fugitives faced.

Denial of refugee status:

In certain cases persons may be excluded from refugee status. The “exclusion clauses” in Article 1 of the 1951 Convention, exclude from refugee status:

“any person with respect to whom there are serious reasons for considering that :

The rule of ”country of asylum”or ”host third country” plays an important role in the grant or refusal of asylum throughout the world and in Europe particular. According to the rule, if a person requests asylum in country B but is presumed already to have found or have had the possibility of finding asylum or protection agyinst persecution in country A, country B is not obliged to consider His/her request and the person concerned and, even if he/she is not returned to a country where s/he risks being persecuted, s/he might be sent from one border to another without any country showing the least readines to grant asylum or even to process the application for refugees status. In such case the asylum seeker is often referred to as a refugee “in orbit”.

The ”safe third country rule” allows denial of access to the asylum procedure for an asylum seeker who has transited such a country. This rule has become the central instrument in the emergent pan-European asylum and immigration regime.

Every EU State has signed the UN 1951 Convention and/or its 1967 Protocol. The standards are not the same: the vague and flexible statements of the Convention are interpreted variously around Europe. However, the States already signed a number of agreements concerning creation of the European Area of Freeom, Security and Justice, harmonisation of asylum policies and gradually towards so called Common Asylum Policy.

On 15 June 1990, the Member states of the European Communities signed at Dublin the Convention Determining the State responsible for examinig Applications for Asylum lodged in one of the Member States of the European Communities- the Dublin Convention. It was passed to do away with the “refugees in orbit” . It became an instrument of vital importance for asylum seekers arriving in one of the 15 Member States-it sets rules for determinig the State responsible for examining applications for asylum”.

These rules may be summarised as follows:

• Each application for asylum shall be examined.
• The application shall be examined by one single member State.
• The application shall be examined “by the responsible Member Stae in accordance with its national laws and its international obligations.”
• “Each Member State shall have the right to examine an application for asylum submitted to it by an allien, even if such examination is not its responsiblity under the criteria defined in this Convention, provided that the applicant for asylum agrees thereto.”
• Any Member State shall retain the right, pursuant to its national laws, to send an applicant for asylum to a third State (i.e. any ”safe” State which is not a member of the EC/EU)

• The Member State where a close family member of the applicant resides with recognised Convention refugee status.
• The Member State which has issued a residence permit or the permit with the longest validity or with the latest expiry date.
• The Member State which has issued a visa or the visa with the latest expiry data or with the longest period of validity.
• In cases of irregular entry the first Member State of entry.
• When no visa is required, the requested State.
• If “the application for asylum is made in transit in an airport of a Member State”, the requested State.
• If the rules above are not applicable, the first requested Member State.

The Dublin Convention provides for mutual exchange of general information (national laws, regulations and practices, statistical data, situation in the countries of origin,…) as well as of information on individual cases (personal data, documentation, travel routes,…) between Member States.

Human rights organisations and agencies commited to the protection of asylum seekers and refugees have criticised not only the exchange of information on personal data but particularly the provisions preventing asylum seekers from submitting their application to the country (from among the Fifteen) where they believe their application would be more likely to succeed and where they wish to work and integrate. The Dublin Convention precludes the possibility for asylum seekers rejected in one Member State to submit a new application to another Member State.

Referring an asylum seeker to a third State includes a danger of refoulement and may therefore, put the referring State in the individuous position of violating the principle of non-refoulment. The Dublin Convention does not oblige the referring Member State to ensure that the third State is a party to the 1951 Conventionand/or the 1967 Protocol or that it is otherwise commited to applying the principle of non-refoulment.

On 1 June 1985, five Member States of the European Communities concluded in Schengen the Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders. This particular agreement did not include measures of immediate concern to asylum seekers or refugees. It took the “Schengen Countries” five years to negotiate and conclude the Convention applying to the Schengen Agreement.

It obliges the contracting parties to incoprorate to their national laws these rules:

• Obliging air, sea and land carriers to assume responsibility for alliens refused entry and- at the request of authorities- to ”return the allien to the third State from which he was transported, to the Third State which issued the travel document on which he travelled or any other Third State to which he is guaranteed entry”.
• Obliging air and sea carriers as well as cariers of groups by coach ”to take all necessary measures to ensure that an allien… is in possesion of the travel documents required for entry into the territory of the Contracting Parties”.

The introduction of carrier sanctions in the legislation of European countries has elicted strong objections from jurists, UNHCR and non-governmental organisations. A group of experts met under the auspices of the European Council on Refugees and Exiles. (ECRE is an umbrella organisation of 72 refugee-assisting agencies in 28 countries working towards fair and humane policies for the treatment of asylum seekers and refugees.) The experts concluded that such carrier sanctions are” ”clearly inconsistent with the right of all persons to seek and enjoy asylum from persecution” amount ”to an unacceptable limitation of the right of asylum” and ”could well amount to a broad breach of international obligations under the (1951) Convention”.

At the Tampere Summit in 1999, the European Union governments committed themselves to an asylum policy ”based on the full and inclusive application” of the 1951 Refugee Convention; to the ”absolute respect of the right to seek asylum”; and to ”guarantees to those who seek protection in or access to the European Union”. They also endorsed the need to study the situations that refugees flee from with a view to finding solutions to the root causes of refugee flight.

At the summit a new Title IV was added to the Treaty establishing the European Community, under which, within a period of five years after the entry into force of the Treaty (which took place on 1 May 1999) the policies on visas, asylum and immigration, those relating to the free movement of persons are to be brought within the ambit of the Community, while administrative cooperation is to be strengthened. (All this is subject to the proviso that, under the relevant protocols annexed to the Treaty, the United Kingdom and Ireland will take part in the development of Title IV only on a case-by-case basis, while Denmark will not participate at all, unless it gives up its opt-out altogether.)

This is the institutional and legal framework created by the Treaties, the basic principles of which are necessary with a view to establishing European Area of Freedom, security nd Justice, without internal frontiers:

• respecting fundamental rights as one of the foundations of the area of freedom, security and justice;
• abolishing any kind of discrimination within the Union;
• evolving a common response to the problem of migration,
• allowing mutual recognition of court decisions in civil and criminal matters;
• creating a climate of confidence between national administrations in the customs field and in the area of judicial and police cooperation.

After the attack on the World Trade centre in New York, USA, the need of controlling illegal immigration and harmonising asylum processes reemerged in multiplicated scale. European Parliament already adopted proposals for common laws concerning this area., also the European Commission has adopted a Communication on common asylum policy.

According to the Conclusions of the Presidency at the Tampere European Council in October 1999, a Common European Asylum System is to include

• clear and workable determination of the State responsible for the examination of an asylum application,
• common standards for a fair and efficient asylum procedure,
• common minimum conditions of reception for asylum seekers and the approximation of rules on the recognition and content of refugee status.

The issue of Common Asylum Policy seems to be promising but though it has already came to discussion, any provision hasn´t been passed yet. However some messures following the Tampere summit have already been agreed on:

On 28 September 2000, the Council adopted a Decision (2000/596/EC) establishing a European Refugee Fund as a solidarity measure to promote a balance in the efforts made by Member States in receiving and bearing the consequences of receiving refugees and displaced persons.

On 11 December 2000, the Council adopted a Regulation (2725/2000/EC) concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention on the State responsible for examining applications for asylum lodged in one of the European Union Member States.

On 20 July 2001, the Council adopted a Directive (IP/01/1046 Date: 2001-07-20)on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof. Temporary protection has been proposed to meet emergency refugee influxes. It is an interim form of protection, which must give way to durable solution. Through its use, governments can initially avoid having to undertake individual screening (which is both time consuming and costly) of people replaced by civil wars and other forms of generalized violence. Everyone fleeing an area of generalized conflict or human rights abused will be offered refuge. Beneficiaries of temporary protection will be given residence permits, appropriate information, the right to work, accommodation, social assistance, health care, and education. At least, close family members will be able to reunite. The Directive estabilishes some standards for returning people to their country of origin and for measures after the end of temporary protection.

Temporary protection does not prejudge recognition of refugee status under the Geneva Convention and the directive establishes access to the normal asylum procedure if the people concerned wish to apply.

Solidarity measures among Member States include financial assistance (via the European Refugee Fund) and the actual reception of persons by Member States (on the basis of the principle of "double voluntariness", i.e. the persons concerned must be willing to go as no transfers can be made against the will of individuals - and Member States are willing to receive them). In particular, information sent by Member States on reception capacity must be inserted in the decision triggering temporary protection.

European Union is said to be a popular destination for asylum seekers. However, in fact they face many almost unpassable difficulties till they get to a country, in which they hope to get protection. They can be turned back right at the border or at the airport, or once they are recognized as asylum seekers and eventually are granted asylum (only a tiny fraction is) they face conditions deeply under minimum living standards of the State.

The demand by governments for entry visas and fines upon those found transporting refugees into the EU make it almost impossible for refugees to enter the EU legally and so many are forced to turn to traffickers and smugglers.

The journey to Europe is therefore often a dangerous one. United for Intercultural Action has documented the deaths of 2406 refugees and migrants, most of whom have died whilst attempting to reach Europe in the last 6 years. There are doubtless more people whose deaths have not been documented. The World Migration Report 2000, produced by the International Organisation for Migration, stated that ”stricter immigration controls appear to play into the hands of organized crime networks”.

No European country pays asylum seekers social support at the same level as is paid to nationals.

Where reception centres are used to house asylum seekers, basic provisions are normally given in kind – there may be canteens providing food and access to donated second hand clothes. In such cases, asylum seekers may receive little or no cash.

Where asylum seekers live independently, payments are still lower than the minimum paid to nationals - in Germany, 20% and in the UK it is 30% lower. In both these countries much of this is paid in vouchers, which are stigmatising and inflexible.

In some European countries there is neither a state run system of welfare payments to asylum seekers nor a network of reception centres providing services in kind. In such cases asylum seekers may be destitute, relying on handouts from churches or small charities, and on their wits.

Life is far from easy for many other reasons. Struggling to learn a new language, without friends, confused by the asylum process and fearful of return, asylum seekers face many difficulties. All too often, the asylum and reception systems in operation in the host country compound these problems.

Even the wealthiest European countries appear unable to find sufficient accommodation for asylum seekers and to ensure that accommodation provided meets minimum standards – squalor, overcrowding and homelessness are common.

Asylum seekers access to healthcare is restricted in many European countries and there are also far too few health practitioners with the skills to treat asylum seekers appropriately. In particular, lack of interpreters can make it difficult to get the correct treatment.

Although the States of European Union have been trying to harmonise procedures and treatment of refugees, there remain differences in the kind of reception an asylum seeker can expect. Here is survey of some choices refugees are facing when seeking asylum in EU:

UK

In 2000, the UK received the largest number of asylum applications of any EU country, leading to fears that the country was being perceived as a "soft touch".

Key facts

• Number of asylum applications 2000: 97,860
• Recognition of asylum-seekers in 1999: 72.5%
• Percentage granted refugee status in 1999: 12.1%
• Cases still pending 1999: 102,870

In the last 10 years the number of asylum seekers in Germany has more than halved.

The backlog of cases pending has been reduced from over 80,000 in 1996 to approximately 40,000 at the beginning of 2000.

Key facts

• Number of asylum applications 2000: 78,760
• Recognition of asylum-seekers in 1999: 13.5%
• Percentage granted refugee status in 1999: 11.3%
• Cases still pending 1999: 65,860

• Monthly pocket money has been reduced to 42 euros. All other assistance is given in kind.
• All asylum seekers are placed in reception centres where they stay for up to three months before being housed elsewhere.
• Asylum seekers are examined for contagious diseases on arrival, but psychological assistance is rarely available at reception centres.
• Asylum seekers who have arrived since May 1997 do not have the right to work at any stage during the asylum determination process.
• School is not compulsory, but children have the right to education. It is rare for children to be taught in their mother tongue, or to have extra German language lessons.

FRANCE

The French government is struggling to find accommodation for the tens of thousands of asylum seekers that arrive in the country each year.

On average it takes about six months for an asylum seeker to be allocated to a reception centre. To qualify for a temporary residence permit asylum seekers need to make an appointment with the local authorities, for which there is a four-month waiting list.

This discourages anyone who does not have friends or relatives in the country from even applying.

Even before the most recent Sangatte row, the UK complained that the French are not doing enough to stop asylum seekers attempting the crossing into the UK.

Key facts

• Number of asylum applications 2000: 38,590
• Recognition of asylum-seekers in 1999: 19.3%¨
• Percentage granted refugee status in 1999: 19.3%

• Asylum seekers without friends or family in France usually have to struggle alone due to overcrowding at the reception centres. Many end up in homeless accommodation.
• Asylum seekers receive a one-off allowance equivalent to 314 euros, in addition to a monthly payment of 283 for those not accommodated at reception centres.
• There is a mandatory medical test for asylum seekers admitted to reception centres. The larger centres provide psychological care once or twice a week.
• Asylum seekers have no access to the labour market.
• School is free and compulsory for children until the age of 16. There are no specific integration programmes or state-sponsored language classes.

Estimates suggest that only a third of all asylum seekers in Austria benefit from federal care.

Austria offers state assistance only to those asylum seekers who are unable to provide for themselves through their own means and efforts.

Asylum seekers who are considered not to be in need include those in possession of a mobile phone, and those who are citizens of a member state of the Council of Europe.

Also asylum seekers who are absent from their accommodation for more than three days lose their entitlement to state help.

Key facts

• Number of asylum applications 2000: 18,280
• Recognition of asylum-seekers in 1999: 56.6%
• Percentage granted refugee status in 1999: 41.7 %
• Cases still pending 1999: 11.080

• Asylum seekers granted federal care are provided with accommodation in private pensions or federal-run centres. Otherwise they rely on non-profit organisations and night shelter.
• Those on the federal care programme are entitled to a monthly allowance equivalent to $323 (348 euros).
• There is a mandatory test for tuberculosis at reception centres.
• Asylum seekers receiving federal care may be employed in auxiliary activities directly connected with their accommodation (e.g. cleaning, maintenance)
• School is compulsory for children between the ages 6 and 15. Children who do not speak German may take language classes for two years.

• Refugee protection: A guide to International Law , Kate Jastram and Marilyn Anchiron, UNHCR, Inter-Parliamentary Union, 2001
• Asylum in Europe- an introduction, Volume I, European Consultation on Refugees and Exiles, 1993
• Protecting of Refugees: questions and answers, UNHCR, Public Information Section, 1996
• The 1951 Refugee Convention: questions and answers, UNHCR, Public Information Section, 2001

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FSV/ IMS III.

2001-02