For two weeks the stricken vessel loaded with illegal immigrants bound for Europe bobbed uncontrollably in the choppy Mediterranean waters between Libya and Italy. With little food and fresh water aboard for a dash across the sea which was expected to take only a few hours, casualties among the passengers mounted alarmingly as the days passed and the boat drifted aimlessly. Weaker civilians began to die and their bodies were unceremoniously dumped overboard.

When Italian officials finally stopped the boat off the Italian resort town of Lampedusa, at least 70 bodies, probably more, had been jettisoned. Thirteen corpses were still scattered around the ship of death – but 15 others had survived, including a young African named Mohammed.

Months before, the 20-year-old had abandoned his home in the failed state of Somalia on the Horn of Africa, trekking thousands of miles across the Sahara desert to Libya and then linking with a smuggling ring for a final dash to Europe.

At times, Mohammed had survived the sea passage buried beneath other dead bodies. "I can't sleep because I feel a terrible weight on me," he said later, recalling his ordeal. "It is the weight of those corpses that saved my life."

But would he risk such a nightmare again? an interviewer asked him as he recuperated. "I wouldn't advise anyone to pass through such an experience," Mohammed replied. He paused and then added, "But in Somalia we risk to be killed every day" a tacit acknowledgement that indeed almost any price was worth paying to escape the ruins of his own homeland in pursuit of a distant dream of a new life in Europe.

Across the continent, residents in a very different setting, in the sedate English seaside town of Portishead, were expressing their own views on foreigners trying to enter Europe.

The government's Home Office had earlier made an innocuous planning application to use two rooms in an industrial park to interview asylum seekers, little suspecting the storm which was about to break.

Portishead was split asunder by the proposal. Some angry residents told a packed public meeting at the local secondary school they would be afraid to let their children play in the street if asylum seekers were in town, according to The Observer newspaper. Sporadic attempts to speak in favor of the centre were noisily shouted down. The debate became so heated the newspaper called the would-be interview room "the most controversial 120 square meters of property in Britain."

The outbreak of local hostilities was particularly worrying because there had not been one previous incident of crime or violence involving asylum seekers in Portishead. The Home Office insisted interviews would be by appointment only, would often last only a few minutes and the applicants would then immediately leave town.

Locals, possibly influenced by a sustained and xenophobic anti-foreigner campaign mounted by some of Britain's tabloid press, were not appeased by those assurances and clergyman John Vickers lamented, "It's a very sad day for the town. If that's not racist, I don't know what is."

The timing of the incident was hardly propitious either, coming shortly before the 15-nation European Union was enlarged on May 1 by the addition of 10 new states (Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia) and 75 million new citizens.

MIXED RESULTS

Amidst the pomp and the glamour of the launch of the world's largest economic bloc with a combined population of 455 million people, the residents rebellion in Portishead and the mayhem on the high seas underscored a more mundane reality – that complex, highly emotional and often contradictory asylum, refugee and immigration issues will continue to be among the most contentious and vexing problems facing Europe.

As Julia Hall of the advocacy group Human Rights Watch said: "This is a hot button issue in every single European country" involving not only immediate asylum and migration problems, but also embracing related security, economic, budgetary and social concerns.

Humanitarian officials who see a dangerous drift in Europe's commitment to protect individual rights were pitted against groups of politicians, journalists and others who for years warned the continent was literally being overrun by unwelcome intruders and who often deliberately distorted and twisted fundamental facts about one of the central issues of the problem – distinguishing between groups of people fleeing persecution and who, as genuine refugees, were entitled to international protection, and illegal, economic migrants who were seeking a better way of life but who, in that role, were subject to national immigration controls.

Caught square in the middle were the migrants and asylum seekers, general publics who often became confused and frightened by the relentless propaganda blitz and embattled governments who spent $10 billion on their immigration systems last year and who, according to Irish Justice Minister Michael Mc- Dowell were afraid that "failure to deal with migration and asylum seekers could give rise to a right-wing backlash and racist politics" in Europe.

States spent years strengthening and fine-tuning national and EU-wide systems to meet these new challenges and the last of five pieces of legislation, officially known as directives or regulations designed to harmonize asylum policies among member states, was approved only days before the bloc's formal expansion.

Perhaps unsurprisingly, the reviews were decidedly mixed. Governments congratulated themselves that their work would strengthen overall international agreements such as the 1951 Geneva Refugee Convention. Human rights activists said the legislation contained serious flaws and in some areas had actually lowered existing protection standards for asylum seekers.

According to Raymond Hall, director of UNHCR's Europe Bureau, a first step has been taken towards a better harmonized approach to asylum in the European Union. "But was it as ambitious and noble as we would have liked? In fact, despite some gains, it's been disappointing overall in terms of providing greater protection to bona fide refugees. The process has not lived up to the expectations we had when we started down this road. As states transpose the Directives into national law over the next couple of years, we will need to make sure we don't see further lowering of protection standards."

Anti-immigration and asylum forces continued to warn their particular countries would be 'swamped' either with asylum seekers arriving from outside Europe or by large exoduses from the new member states, but available evidence suggested otherwise.

On the eve of the continental expansion, the number of asylum applications had dropped dramatically from a high of nearly 700,000 in 1992 to 288,000. High Commissioner Ruud Lubbers noted that despite this, some governments continued to promote the wrong kind of hardline policies, in much the same way as generals were often accused of fighting the last war rather than any current conflict.

"The number of asylum seekers has dropped sharply and is continuing to do so," Lubbers said in one recent speech. "There is no need to focus so single-mindedly on reducing standards (of refugee protection) and trying to deter or deny protection to as many people as possible."

Academic research also suggested that less than 300,000 people from the 10 newest members would move to 'old' Europe over the next 12 months, despite scare newspaper predictions that tens of millions of people would hotfoot it to Britain and other desirable West European countries.

SECURITY PARAMOUNT

In the wake of the terrorist attacks in the United States on September 11, 2001, and earlier this year in the Spanish capital of Madrid, security considerations became paramount, often to the detriment of human rights concerns. European countries spent billions of dollars strengthening both their own physical borders and toughening immigration and asylum systems. The Union channeled more than one billion dollars to new member states alone to upgrade what will now be the EU's major frontier in the East.

Trafficking of anyone willing to pay as much as $10,000 for a one-way ticket ballooned into an annual multi-billion dollar industry and an estimated 500,000 people sneak into the Union each year.

Some, like the doomed Africans aboard the vessel bound for Italy, were prepared to gamble with their very lives. A consortium of non-governmental organizations called United Against Racism documented the deaths of around 5,000 people in the last decade who drowned, froze to death or suffocated in trucks, ships, aircraft or impenetrable forests; who died while crossing minefields; committed suicide by jumping off bridges and cliffs or setting fire to themselves – all in a doomed attempt to reach their promised land. Europe remained ringed by real or potential crises: Kosovo and other parts of the unstable Balkan region; Iraq and the Middle East. And the Caucasus.

As Chechnya's agony continued, Chechen citizens became the largest single group seeking asylum in Europe, underlining an obvious but often ignored premise and distorting national attempts to meet immigration challenges – that it is not the so-called social benefits in European countries that attract genuine refugees or increasingly daunting asylum procedures that deter them, but the real situation in their home countries which forces them to flee in the first place.

A SAFE HAVEN

Refugees have always been a part of Europe's landscape, but in the last century their numbers and the type of reception they received fluctuated dramatically, depending on the prevailing political, military and social climate.

Two global wars resulted in the flight of tens of millions of civilians across a ravaged continent. Between those cataclysmic events, millions of Armenians, Turks, Greeks and Spaniards sought sanctuary in other parts of Europe as genocide and conflict destroyed their own ancestral homes.

In 1921, the League of Nations, forerunner of the United Nations, appointed Norwegian explorer Fridtjof Nansen as its first High Commissioner, initially to help 800,000 mainly Russian refugees.

Following World War II, the establishment of the United Nations and the Council of Europe, the adoption of the 1948 Universal Declaration of Human Rights, the 1951 Convention relating to the Status of Refugees and other instruments guaranteed refugees minimal legal and human rights.

The movement of large numbers of uprooted civilians continued, but often in a relatively orderly and politically welcome way. During the Cold War, refugees became both political pawns and political capital. Western Europe and countries further afield such as the United States and Australia warmly greeted escapees from Soviet communism who were rapidly granted asylum and easily integrated.

Starting in the late 1970s, the continent was exposed for the first time to the large-scale arrival of non-Europeans when thousands of Indochinese boat people were granted sanctuary in the wake of decades of war in that region. In the prevailing political climate they, too, were openly embraced even in such unlikely places as Iceland.

For a quarter of a century the number of asylum seekers arriving in Western Europe remained relatively stable at under 100,000 annually. But as more people arrived from Africa, Asia and the Middle East as well as Eastern Europe, the figures climbed inexorably, doubling in 1986 to 200,000, to 316,900 in 1989 and peaking during the early stages of the war in the former Yugoslavia at 696,500 in 1992.

SHAPING A DIFFERENT FUTURE

It was those spiraling asylum figures, the large increase in the number of people moving across the world in search of a better economic life, Europe's planned expansion and, in the last few years, the deteriorating security situation and the global war on terror, that shaped the continent's asylum debate and its latest raft of legislation.

In essence, the proclaimed objectives were designed to produce a level playing field among very diverse national asylum systems – in official parlance member states would 'harmonize' their policies. In practice, this would produce a more streamlined, efficient and humane European-wide system benefiting both governments and the people seeking sanctuary.

A harmonized system would allow countries, for instance, to more easily sift out genuine asylum seekers from economic migrants and also halt a practice known as 'asylum shopping' whereby applicants moved from country to country seeking the best deal possible. Conversely, however, the basic rights of applicants would also be strengthened.

In June 1990, governments meeting in the Irish capital approved the Dublin Convention, the first major step by Europe to try to coordinate national asylum policies by establishing the responsibility of individual countries to examine asylum requests. This proved ineffectual and 13 years later, the role of member states was redefined under what became known as Dublin II.

In the interim, the 1992 Treaty on European Union (Maastricht) empowered Justice and Home Affairs Ministers to establish a framework for a Europe-wide asylum policy. The 1997 Treaty of Amsterdam provided a legal basis for the development of common policies and two years later the Tampere Conclusions established the political objectives of such policies based on "the absolute respect for the right to claim asylum" and the "full and inclusive application" of the 1951 Convention. Other treaties and legislation including the five directives and regulations mentioned earlier added legal muscle to the framework.

But the migration conundrum – the movement of peoples across borders and the authority of governments to control them – is one of the most delicate and fundamental tenets of sovereignty. According to UNHCR's Raymond Hall, countries had not fully responded to the challenge of shaping new policies and a new direction.

As a result, there was a glaring paradox at the centre of the continent's attitude toward asylum and immigration, he said: While national capitals recognized the only effective way to tackle those issues was by fully harmonizing their individual systems, they still remained unwilling, after years of debate and discussion, to cede the degree of national sovereignty necessary to bring that about.

To be sure, there were welcome advances in the new legislation. The so-called Qualification Directive spelled out a common definition of who could qualify as a refugee, hopefully ending years of confusion and disagreement on who was and who was not entitled to sanctuary. It explicitly included victims fleeing not only from the more widespread and common form of political, religious and other persecution committed by governments, but also from guerrillas, irregular militias and other 'non state' actors. Some governments in the past had excluded such victims from their safety net.

There was further agreement for other groups to receive so-called 'subsidiary' protection, including those fleeing from armed conflict and generalized violence.

Persecution based on gender was recognized.

Fixed minimum levels of social benefits, employment and health care were established. Reception facilities for migrants and asylum seekers and administrative procedures were strengthened, especially in the new member states.

THE DOWNSIDE

However, UNHCR and human rights organizations expressed major reservations about other parts of the new legislation, particularly those dealing with asylum appeals, so-called 'safe countries', and the deportation of failed applicants.

People in future could be expelled even before the results of any appeal they might lodge is known, despite the fact that in some European countries between 30-60 percent of refugees were only recognized after an appeal.

They might be returned to countries through which they had earlier traveled but which were considered 'safe' by the expelling authorities, without the asylum seeker having an opportunity to rebut that presumption. Under an even more draconian regulation, some could be refused the chance to even make an asylum application if they had transited a new category of country designated as 'super safe' by a particular European country.

The refugee agency warned that in some cases this could spark a string of chain deportations through a series of countries with the unlucky applicant eventually dumped back in his or her home state where they faced a very real risk of persecution.

Other concerns were also tabled.

The new legislation might result in countries with the most fragile asylum systems and the least resources – the new member states in Central Europe – processing a disproportionate number of migrant and asylum applications, with the very real threat that their systems could then simply collapse.

Other restrictive and highly controversial practices currently contained in the national legislation of individual countries could eventually make their way into the legislation of all 25 EU states.

All in all, many human rights and refugee organizations said the European Union had missed a major opportunity to adopt high asylum standards and instead had opted for the lowest common denominator.

High Commissioner Ruud Lubbers warned on several occasions through the lengthy negotiating process, that parts of the draft legislation as it then stood fell short of recognized legal standards, could lead to the erosion of the global asylum system and jeopardize the lives of future refugees. It could also send the wrong signal to other states, especially poorer ones, giving them an excuse to lower their own levels of help.

"It would be a real pity if Europe were to undermine the great tradition of protecting real refugees," Lubbers said. In rebuttal, in a meeting early in 2004, Irish Justice Minister McDowell argued: "UNHCR and others are saying the EU is dismantling the 1951 Convention. I don't see it that way. I think we are taking practical steps to deal with the realities. These (rules) will offer protection to refugees and others in need of protection... and will help to build confidence in our individual asylum systems."

THE FUTURE

May 1, 2004 marked the end of the first phase of Europe's grand harmonization project. On UNHCR's role Raymond Hall said, "A lot of questions can be asked about the level of protection and the degree of harmonization actually achieved. But overall, our interventions have had a positive impact. Things may have been a lot worse had we not been involved. The European Commission also played a very positive role throughout the entire process, as did the Irish Presidency in the final difficult stages of discussions."

The next round of harmonization may offer better prospects for a truly common European asylum system based on high protection standards. New actors such as the European Court of Justice and European Parliament will become more involved. The European Commission will take over part of the role until now undertaken by individual states and majority decisions rather than the need for unanimity should make it easier to forge compromise decisions.

In the meantime, states themselves will take the next couple of years or so to meld their own national and EU legislation and the refugee agency will also shift its focus somewhat back to this national level to, as one official said, "make sure governments do not slip below the minimum standards established by the harmonization process. We must try to prevent minimum standards becoming maximum standards."

UNHCR insisted only a multi-faceted approach in coming years could meet Europe's immigration and asylum challenge. More resources had to be allocated to crisis areas, either to prevent fledgling conflicts spinning out of control or, if that failed, to help the resultant refugees and immediate host countries in the region.

Though substantial funds had already been earmarked, further assistance was needed to strengthen not only the still fragile Central European member states, but also nations immediately on the other side of the new frontier such as Ukraine (see separate story).

With Europe itself now moving into a second stage of immigration and asylum reform, there was a fresh chance to refine or strengthen legislation particularly in such areas as sharing the refugee burden more equitably between countries and creating a common system for asylum processing to produce both fairer and faster decisions for people trying to enter the bloc.

More ambitiously, UNHCR has already tabled a set of national, European and global proposals. These include the establishment of centralized reception centres where certain categories of asylum seekers entering the EU would be processed speedily and efficiently by multi-national teams. Rejected applicants would be returned promptly to countries with which Europe had already negotiated readmission agreements, again under EU rather than national auspices. So-called burden sharing among states would be improved so that individual countries would not receive a disproportionate number of refugees. Eventually, an EU asylum agency and an asylum review board to manage centralized registration and processing systems would be established.

Nationally, immigration and asylum systems would be strengthened. Additional resources would be earmarked to help build capacity in poor countries in Africa, Asia and elsewhere who receive the bulk of the world's uprooted peoples and the refugees themselves – the message being that if this project was successful and protection standards in regions of origin improved, the number of asylum seekers traveling further afield to Europe would be reduced.

"We are now in a position to concentrate on the quality of our asylum systems in industrialized countries and on improving conditions in the refugees' region of origin so that those who go home are able to stay there, and fewer are forced to leave in the first place," High Commissioner Lubbers recently told a global audience. "It is time to shift away from a largely negative approach – closed borders, detention, interception at sea, cuts in benefits – to one which focuses on continuing the ancient tradition of welcoming refugees."

That will be the next challenge – in Europe and across the globe.

Source: Refugees Magazine Issue 135: "New Europe and Asylum – What Next?" (June 2004). Download the complete issue in pdf format: low-resolution (520Kb) here or high-resolution (1.5Mb) here