Refugees Magazine Issue 113 (Europe : The debate over asylum) - It's a long way to ... harmonization

Refugees (113, 1999)

European nations struggle with the delicate task of coordinating their asylum procedures

By Stefan Telöken

When Mina H. and her eight-year-old daughter joined her refugee husband in Germany after more than one year's enforced separation, the story should have ended there on a happy note; instead the family fell foul of a complicated and at times seemingly unfathomable set of asylum laws. Because they had transitted Vienna with a valid visa but then entered Germany illegally, German law stipulated that they must return to Austria - their first port of call on their journey from their homeland - where their asylum claim would be considered.

The family appealed against what is innocuously called a 'safe third country' policy and this time the law worked in their favour. The Dublin Convention, signed seven years earlier in 1990 by member states of the then European Community (except Denmark which signed one year later), had recently become legally binding.

Its main thrust was to ensure that one member state would take responsibility for dealing with a claim, deterring asylum seekers from 'shopping around' for the most favourable place to ask for refuge. Effectively, anyone arriving without a visa would have to file an application in the first Convention country he or she reached. An exception was allowed for people whose immediate family members were already recognized in another country, as in the case of Mina.

Dublin was the first major step by Europe to coordinate and, what would later become a buzz-word for the process, 'harmonize' often conflicting national policies on just who would be allowed to apply for and receive asylum and under what conditions. This has proved to be one of the most sensitive and complex of issues facing Europe as it moves inexorably toward greater economic, political and social integration.

The movement was given added impetus by the end of the Cold War and the breakup of the former Soviet empire. The once almost impenetrable Iron Curtain collapsed and central and eastern Europe became an easy gateway to the West, both for people from the former communist countries themselves and asylum seekers transitting from further afield. The numbers of people seeking refuge in western Europe increased significantly. In 1985, for instance, 160,000 asylum applications were recorded. That number jumped to 441,800 five years later and peaked at 696,500 in 1992. Germany received 438,000 of those applications.

A framework for a European policy

The Feb. 7, 1992, Maastricht Treaty on European Union empowered Justice and Home Affairs Ministers to establish a framework for a Europe-wide asylum policy. Ten months later in London they approved the first three non-binding Resolutions and Conclusions.

The first embodied a safe third country concept allowing states to refuse individuals access to their asylum procedures if the applicant could have sought protection in another 'safe' country. In the second, concerning manifestly unfounded asylum applications, member states were given wide scope for rejecting asylum requests on formal grounds and for limiting appeal possibilities. The third Conclusion on 'safe' countries of origin allowed for an accelerated procedure in the case of claimants coming from countries in which there is generally no serious risk of persecution.

Two years later in Brussels, the ministers adopted a model 'readmission agreement' which could be concluded between EU and non-EU states, making it possible to send asylum seekers back to countries they had passed through en route to European territory. In general, one state's safe third country regulation cannot be implemented without complementary bilateral readmission agreements and today Europe is covered by a dense web of such accords.

If the restrictive trend in European asylum policy was not evident before this development, which Amnesty International called a 'network of organised irresponsibility', it was unmistakable thereafter.

In June, 1995, a Resolution on Minimum Guarantees for Asylum Procedures was adopted. It contained a number of safeguards: removal would not be allowed during an appeal, a specialized authority would examine asylum claims and applicants would be informed about how the asylum procedure worked and about their rights and duties in a language they understand. However, states can set aside these minimum standards in certain circumstances, underlining that the lowest common denominator vis-à-vis genuine safeguards had once again prevailed.

States then turned their attention to the very core of refugee proection, the 1951 Geneva Convention and the definition of a refugee. Though not binding, a so-called Joint Position allows member states to follow a restrictive interpretation of the refugee definition supported at the time by a minority of states, notably Germany and France. This allows countries to limit recognition to persons perscuted by a government and its agents. Other people who suffered just as badly, perhaps at the hands of a rebel movement during a civil conflict (as is the case in Algeria) would not be recognized as refugees.

Even if all state authority had broken down in a country of origin, a request for protection could be turned down on the spurious logic that persecution cannot exist in the absence of state authority.

Moving forward

The Amsterdam Treaty on the European Union, signed in 1997 and expected to become legally binding in 1999, stipulates a series of steps to be taken in the next few years, with several already adopted Resolutions and Joint Positions becoming EU law in the year 2000.

The treaty forsees binding measures in such tricky areas as harmonization of social assistance for asylum seekers, temporary protection of refugees in the event of any mass influx and burden sharing among member states.

Germany hosted a disproportionate number of refugees from the former Yugoslavia during the early 1990s and is determined this will not happen again. When large numbers of 'illegals' started landing in Italy earlier in the year, the issue was heatedly debated at a meeting of Justice and Home Affairs Ministers in Birmingham, England. Member states subsequently adopted a 46-point Action Plan in order to tackle future large flows of illegal immigrants from such areas as Iraq and Kosovo.

Bonn has insisted it would not surrender its veto on asylum and refugee issues until member states work out a more equitable system of handling refugees. But positions remain polarized. Some member countries appear ready to agree on a formal, provisional status for temporary protection, but do not agree to any fixed burden-sharing system. Others refuse to consider one without the other.

Temporary protection and burden sharing

The European Commission has drawn up a series of informal proposals on temporary protection and burden-sharing, including the type of benefits people would receive, financial aid to countries supporting large numbers of displaced people and the possibility of eventually moving at least some of these people to other countries.

The European Council on Refugees and Exiles (ECRE), an association of European non-governmental organizations, believes that more equitable 'sharing' of refugees among member states could help avoid further restrictive asylum measures. In 1996 ECRE urged governments to adopt a system to "share the responsibility" for the protection of refugees and displaced people while at the same time maintaining enough flexibility to accommodate cultural, historic, linguistic considerations and the unity of families.

"Pragmatism, yes. But not at the expense of principles," says Erika Feller, Deputy Director of UNHCR's Division of International Protection. "Solidarity and burden-sharing (are) not prerequisites for respecting the fundamental principles of non-refoulement and asylum."

With conditions varying widely from state to state, UNHCR has urged EU countries to follow a set of fair and efficient asylum policies and procedures. They include full implementation of the 1951 Convention, including its recognition as refugees of people fleeing persecution by non-state agents; temporary protection to people arriving in any large-scale influx and burden-sharing among states in such conditions; and a proper balance in providing adequate reception facilities for new arrivals and longterm integration for recognized refugees.

The challenge is to find a reasonable balance between the states' legitimate interests and those of refugees. That will largely depend on whether the measures foreseen in the Treaty of Amsterdam merely cement the restrictive trends of the 1990s or whether the new millennium will bring with it genuine improvements in refugee protection.

Source: Refugees Magazine issue 113 (1999)