Information

Karl Kopp, PRO ASYL, June 2003

European Asylum Policy

Minimum Standards - Maximum Deterrence

The UNHCR is greatly disappointed with EU states for not having fulfilled promises that were made during the commencing of harmonisation processes at the Finnish city of Tampere. Confirming their absolute respect in seeking the right to asylum , they commited themselves there to the setting up of a common asylum system based on the comprehensive application of the Geneva Convention on Refugees (UNHCR press release, 30 April, 2004)

Since May 1999, EU Member States have been wrestling with the issue of legal minimum standards concerning asylum law.

PRO ASYL along with other human rights organisations have been accompanying this process very intensively, for only with binding European standards do we actually see a chance where asylum law will no longer be crushed between the particular interests of individual Member States.

Granting protection to refugees on the basis of the comprehensive and unrestricted application of the Geneva Convention on Refugees, fair asylum procedure, providing conditions of admission which are humane and most importantly access to EU territory free of all danger all represent key elements in a future European system. Yet, over the last five years of negotiation, hope for better protection for refugees has been scattered to the wind. The main impression today is that the debate around a common European asylum system has less to do with the protection of refugees and more to do with the "protection" of EU countries against refugees.

The Daily Death Toll on Europe*s Outer Borders

Officially, since the beginning of 2002, over 1,000 people have died on Europes outer borders. Actual number of deaths is substantially higher. While refugees and immigrants continue to get killed in the mine fields between Greece and Turkey, others drowned on the way to the Canary Islands, in the Agean Sea, in the Straits of Gibraltar, off the coasts of Italy etc.. Tragedies like sunken boats full of refugees in the Mediterranean rarely make headlines. The price paid for this barrier often tends to be booked under the ledger fighting illegal migration . In this way the conditions often forcing people to leave their lands, such as the ravages of civil war, dictatorship, warlords, the denial of the rule of law as well as extreme poverty are all kept well hidden away.

The Consequences of this Border Barrier

The closing of Europes outer borders has developed into a huge job creation scheme, where commercially available refugee services (smugglers) often entail life threatening and inhuman conditions.

Studies show that those who have acquired official refugee status were only able to reach EU territory through using their services .

Over recent years, the EU has closed off almost all legal entry possibilities. Refugees coming from their country of origen are now required to have a visa.

There are no visas granted normally to refugees. Yet, the EU has not only prevented refugees legal entry of refugees free of danger. Indeed, for many years it has been working towards the stopping of all illegal border crossings. This has been achieved all along the EUs outer borders through a re-equipment programme which include radar towers, night-viewing equipment, heat sensitive cameras, special carbon dioxide probes and much more.

So-called readmission agreements are being made with as many neighboring countries as possible as well as various designated countries of origen. With substantial participation from Germany, a common Border Protection Agency will now be set up. At the same time, protection against the entry of refugees is already taking place far beyond the EUs borders. For example, at the EU Summit in Thessaloniki in June 2003, various European Heads of State as well as Heads of Government approved a sum of nearly 400 million Euro in order to further extend European border protection, including especially the establishing of closer ties with transit countries and countries of origen, thereby further improving control over immigration and the passage of refugees.

Asylum Figures in Free Fall

All these measures are having an effect asylum figures within the EU are in a state of free fall. According to the UNHCR, considerably more than 80% of the actual current 12 million refugees worldwide live under catastrophic conditions in their own countries of origen. In addition to this, there are an estimated 20 to 25 million internal refugees.

In contrast, the number of those applying for refugee status within the EU over the last ten years has been reduced by half. For example, in 2003 alone there were only 288,000 asylum applications made a reduction of over 20% in comparison with the previous year. This trend has continued throughout 2004.

Indeed, with the sole exception of Slovenia (plus 37%), all other new EU Member States have registered a reduction in the number of asylum applications made in the 1st Quarter of 2004. Thus, in comparing the time periods between October to December 2003 and the 1st Quarter of 2004, the Czech Republic registered a reduction in the number of asylum applications of 36%, in Slovakia of 39%, in Hungary of 26% and in Poland of 31%. In Germany, the number of people applying for asylum in 2003 was 50,000 - the lowest figure since 1984. On the other hand, the number of deportations in Europe has steadily been rising.

European Asylum Law: A Good Start from Brussels

Between December 1999 and September 2001, the EU Commission published various proposals in relation to the issues of asylum procedure, social conditions for asylum seekers, the reuniting of families as well as proposals concerning refugee definition and complentary forms of protection. These plans for a common asylum system have created, however, such a sensation within certain circles of Europe, for Brussels has sought to reach higher minimum standards instead of merely accomodating to the lowest common denominator found in existing asylum practice. Indeed, the translation of the Commisions proposals into concrete action throughout the EU would have clearly represented a partial break with the restrictive asylum policies of the 1990s, in which the race for implementing the most restrictive policy between EU Member States were dubbed European harmonisation .

The Shabby Race Continues

Under these given institutional and political constraints, a positive turn in present EU asylum policy is not expected.

Indeed, most Interior Ministers have shown in very tough negotiations absolutely no inclination whatsoever towards giving up restrictive asylum law. What is worse, while common standards have continued to be heatly debated, Member States have already established a whole new set of facts on the ground. Most Member States have already implemented fundamental changes in asylum law. The tone of these changes include accelerated asylum procedure, longer detentions, more camps and more efficient deportation practices as well as the complete or partial exclusion from social benefit provisions. With these new laws stacked in their pockets, Interior Ministers have returned to the negotiation table in Brussels, again further watering down actual drafted directives.Inspiring each other in further sharpening the law, they have quickly agreed at EU level to implement measures which are binding, effectively, blocking the way to Europe for refugees. The establishing of a set of common European asylum law really worth its salt has yet to come.

Germany*s Blockade Politics

Among the major blocker nations, Germany, sadly, wins first prize. No other country is more vehement in its support of the principle of unanimity or makes such full use of it in reinforcing a blockade in European politics as does Germany. Setting its sights at the higher European standards, it consistently attempts to lower these standards to German levels. Driven by the fear that European directives and regulations may liberalise both asylum and aliens law as a consequence, Germany clings to the principle of unanimity as a sort of security blanket , thereby allowing it a certain degree of control concerning the transfer of specific rights of sovereignty.

For months the German government blocked the passing of directive concerning the concept of a refugee against all other EU Member States! It essentially argued: German immigration law first; Europe must wait. Moreover, so that required qualification directive could be accepted by the 29th of April 2004, they were further watered down in order to take into account Germanys numerous reservations.

Yet, Germany has had to make a concession on one central point: victims of non-state and gender specific persecution are now to fall under the protection of the 1951 Convention. Current guidelines now stipulate this. By correctly translating this into national law, protection gaps can now be finally closed in Germany.

Germany has seen to it that the rights of refugees, especially those social rights providing complementary protection, have been cut back massively. Binding minimum standards have now been made conditional. It is therefore now possible to provide these specific refugee groups with only certain core social and medical services, while restricting their access to the labour market. Programmes promoting integration are now only provided when the individual nation state sees fit, viewing it as useful . Furthermore, other family members of the refugee can be given a lower status, thereby entitling them to fewer social benefits.

The sought after higher European standards for the protection of child refugees have suffered drastic restrictions under reception directive. Unaccompanied minors over 16 years of age can already be allocated to reception camps with adult asylum seekers. Germany has further watered down European standards in asylum procedure directive by reducing the age when majority is attained from 18 to 16 years of age. Germanys specific anti-children practice will probably be successfully exported throughout the other 24 EU Member States. As regards to reception directive, Germany has pushed through its unique restriction concerning the freedom of movement of asylum seekers (the so-called compulsory residence). Moreover, it prevented that access to the labour market for asylum seekers be regulated at European level. Indeed, the German Chancellor personally intervened on this issue despite the fact that this respective area clearly falls under the competence of the EU and even though the German Federal Republic had already agreed to this under the political agreement of April 2002. Moreover, Great Britain used Germanys months long blockade politics as a further excuse to prolong negotiations, further sharpening the already agreed upon directive. Thus, in the future, all asylum seekers who have not immediately submitted their application for asylum shall be refused all social benefits. Germany and Austria together have so cut up the directive concerning the family reunification that the final accepted version has nothing left in common with the original points first presented by the Commission. Due to German pressure, the directive contain a specific exception rule which allows for the reduction in the age of immigrant children who may not be permitted to come after parents from 18 to 12 years of age. This paragragh, along with others, provoked widespread indignation in the European Parliament. For this reason it was decided on the 11th of December 2003 to present these directive before the European Court in Luxembourg, in order to have them annulled.

Already since the first drafted directive on common asylum procederes were presented in September 2000, Germany has maintained such a sustained resistance that they have had to be fully revised with fatal consequences. The second set of proposals that were presented by the Commission in July 2002 marked a clear shift in direction, reflecting a greater degree of deterrence towards aslyum seekers.

An Alliance Preventing the Protection of Refugees

In the shadow of the so-called war against terror, a dramatic restructuring of the international refugee and human rights systems has taken place. Human rights achievements, which were and, indeed, are nothing other than civilisations answer to the barbarism of National Socialism are under threat of completely being done away with. Historically, it is important to remember that with the existence of the Geneva Convention on Refugees the defining shift away from regarding the receiving of refugees as an act of grace on the part of the state to that of a claim on the part of the individual refugee for protection had fully taken place. Today, asylum law as well as the complete ban on subjecting anyone to torture and other inhumane treatment are increasingly being placed at open disposal.

In the Spring of 2003, the British government under Prime Minister Tony Blair presented the most radical model for asylum prevention: refugees who have successfully reached European territory shall now be interned at short notice and be taken back to protection zones in their countries of origen as quickly as possible. Together with other states in a coalition of the willing Great Britain plans a worldwide network of refugee reservations. While in the first phase of this pilot project, standards set by the European Convention on Human Rights and the Geneva Convention on Refugees still tend to be followed, in the medium-term changes to the Geneva Convention on Refugees and a revision of the European Convention on Human Rights are increasingly being considered.

The British vision for refugees apparently has as its goal the creation of a largely refugee free Europe. Already this year, the British government has initiated a first series of pilot projects. Thus, for example, the British government is attempting for a couple million Pounds Sterling to financially persuade certain African states to receive asylum seekers whose asylum application have been rejected although they come from different African states. Moreover, Tony Blair would like to have asylum systems already put in place and functioning in the various regions where refugees come from, thereby allowing asylum procedures for specific groups to be carried out at the place of origen.

At the moment, these British proposals are only a vision . Great Britain was unable to ensure these initiatives form a common EU project. Yet, these proposals are very much reflected in EU asylum procedure guidelines.

A Meltdown in Refugee Policy

On the 29th of April 2004, European Interior Ministers shocked all those committed to the issue of refugee assistance, for the ministers reached a political agreement regarding asylum procedure guidelines. Labelling them asylum procedure guidelines is a scandalous misnomer. They should rather be called asylum deterrence directive ! For months, the UN High Commmisioner for Refugees, the European Council on Refugees and Exiles (ECRE) as well as a wide alliance of organisations in Germany ranging from PRO ASYL, Amnesty International and social charity associations to various judge and lawyer organisations have all tried vainly to ensure that these guidelines not be accepted - sadly, without success.

Should these guidelines be formally accepted in their present form, asylum seekers run the risk of possibly being deported to third countries they have never even set foot in. Under these directive only a connection between the applicant seeking asylum and a designated third country is required. Even states that have not even ratified the Geneva Convention on Refugees may qualify as safe third countries.

During its negotiations, Great Britain even pushed through the point that partial states can be declared safe countries of origen.

In summarising these criteria, the guidelines enable a sort of what might be termed out-sourcing of refugee protection directly unto either the refugee*s country of origen or even region of origen. Germanys success in exporting its safe third country rule unto EU level completes this asylum hindering programme.

Henceforth, border officials throughout Europe can turn back asylum seekers to these new safe third countries without even examining each individual case. Eleven years after the constitutional amendment, the Europe of 25 Member States has taken up the German model concerning the third country rule, producing, in effect, a meltdown in refugee policy.

In the future, potential safe third countries may include Russia, Belorussia, Rumania, Bulgaria, Serbia, Croatia, Macedonia and Turkey states in which human rights violations are a daily occurrence, and where international standards regarding the rights of refugees are non-existent.

Were these guidelines to become the European standard, asylum seekers in a EU country could be turned back to a state where he or she may be under the threat of human rights violations or even, following a chain reaction, be deported back to the original land of persecution.

How Does the Future Look?

Even if a political agreement regarding guidelines has been reached, it does not follow that they have already been introduced into practice. No matter how grave and disastrous decisions taken by Interior Ministers may be, there still remains room for manoeuvre in which content and application may be influenced.

Indeed, parliamentary reservations in some Member States have been expressed. That is to say, various national parliaments still have to decide over these guidelines including the German Federal Parliament.

Besides, at present there is no list of supposedly safe third countries available. The European Commission must propose a list. Moreover, while Interior Ministers may decide, they still must first listen to the European Parliament. Arriving at a joint decision, however, is not permitted by the newly elected European Parliament. Finding these asylum procedure guidelines to be contrary to international law on several points, PRO ASYL intends to do all in its power to support initiatives which attempt to bring these asylum procedure directive before the European Court of Justice in Luxembourg. These directive must be annulled. Together with our umbrella organisation, ECRE, we are developing strategies particularly in regard to approaching the European Parliament.

On the whole, as new issues and a new scope for action emerge, the work of refugee organisations are becoming more and more important than ever before: Strong networking is our answer to the attempt of EU Member States to shirk off their responsibilities toward providing protection for refugees. PRO ASYL is intensifying its cross-border cooperation. Since January 2004, we have been building up a close network of organisations from Austria, Poland, Hungary, Slovenia, Slovakia and the Czech Republic. Only through cross-border collaboration are we able to carry together our responsibilities towards those seeking protection.