Time for EU to define refugee status

Date: 12/06/03

By David Cronin

With abuse of asylum procedures allegedly rising, the credibility of EU policy is coming increasingly under threat

FORTRESS Europe is being built in something of a legal vacuum.

Even though EU justice ministers are examining dossiers on sending home those who have had their applications for asylum rejected, they have so far been unable to agree on definitions of who qualifies for refugee status.

In theory, that question was answered way back in 1951 when the Geneva Convention was approved at a United Nations conference.

Still the cornerstone of international asylum law, its first article describes a refugee as someone "who is outside his/her country of nationality or habitual residence, has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution".

Because the convention was drawn up in the wake of the Second World War, many feel it is no longer sufficiently comprehensive to deal with today's migratory trends. As a result, the concept of 'subsidiary protection' has been developed to cover those deemed worthy of being granted asylum, without meeting the criteria set down in the Geneva Convention in their strictest sense.

In September 2001, the European Commission proposed a directive laying down the conditions for asylum-seekers to meet if they are to be granted refugee status or similar protection.

It asserts that the Union's member states shall grant subsidiary protection status to those who cannot return to their countries due to legitimate fears of facing a human rights violation there, or because of threats to their lives posed by an armed conflict or systematic repression.

EU governments had set themselves the objective of agreeing on minimum standards for refugee protection by June 2003. That deadline has been missed.

Ministers attending the EU's Justice and Home Affairs Council last week (5-6 June) in Luxembourg failed in their quest to adopt the 'qualifications' directive. Insiders say the main uncleared hurdle was Germany's objections to those granted subsidiary protection having the same entitlements to employment, education and social welfare as those with 'full' refugee status.

Pro-refugee campaigners argue it is premature to start assembling a common EU asylum and immigration policy until the foundations of protection are laid.

"We have been arguing from the beginning that this should have been the first thing to deal with," says María-Teresa Gil, from the European Council on Refugees and Exile. "Only when we know who is a refugee, who is in need of international protection, can we discuss everything else."

Green MEP Jean Lambert is urging an EU moratorium on expulsion and repatriation until governments find the common definitions that elude them.

"If they can't even decide who is entitled to stay, then they shouldn't be finalizing plans on how to throw them out," she remarks.

Unless EU ambassadors can swiftly break the logjam on the qualifications directive, the dossier could be passed on to the government leaders at the Thessaloniki summit (20-21 June).

In any event, migration issues loom large on its agenda.

Earlier this year the Commission published a paper, identifying what it described as real threats to the institution of asylum in the EU.

It alleged that the abuse of asylum procedures is rising and that migrants are applying for asylum solely in an attempt to carve out a better living.

Moreover, it reported, there is a growing trend towards people-smuggling, where traffickers attempt to bring both those with well-founded and weaker asylum claims into the Union.

A new Commission paper, published on 3 June, devotes considerable attention to a perceived need to send those considered illegal immigrants home. It states: "The credibility and integrity of the legal immigrant and asylum policies are at stake unless there is a Community return policy on illegal residents."

Yet progress on devising such a policy has so far been sluggish. Most of the Union's member states have failed to comply with a December 2002 deadline to implement in their national laws the provisions of an EU directive on mutual recognition of expulsions of immigrants.

The questions of both voluntary and forced return of immigrants are fraught. This was dramatically illustrated by the public outrage in Belgium after Semira Adamu, a 20-year-old Nigerian asylum-seeker, died of suffocation while being deported in 1998; the police escorting her onto a plane used a pillow to muffle her protests.

More recently, EU governments endorsed a scheme for the return of Afghan refugees in November last year. This plan emphasized it would "first and foremost" promote voluntary return, but raised the prospect of forcing home those "who do not have protection needs or compelling humanitarian needs justifying the prolongation of their stay in member states".

Human rights groups contend statements by the EU's own top-level policymakers prove the situation on the ground in Afghanistan is far too turbulent to justify the scheme. Indeed, Romano Prodi, the European Commission president, painted a grim picture of the security situation there at the recent G8 summit in Evian, as officials say 4.3 million Afghans are facing food shortages.

"The Afghan return plan is off the wall," claims Dick Oosting, Brussels director of Amnesty International.

The new Commission paper argues that securing re-admission agreements between the Union and outside countries "will facilitate the return in a way that is acceptable both for the EU member state and the receiving country".

To date, the Commission has concluded talks with Hong Kong, Sri Lanka and Macao on the conditions under which asylum-seekers from their countries, whose applications have been turned down, can be returned. It has also been granted a mandate by the Council of Ministers to hammer out re-admission pacts with eight other states - Russia, Morocco, Pakistan, Ukraine, Albania, Algeria, China and Turkey.

The paper acknowledges that these agreements are seen as being solely to the benefit of EU states and that the time needed to reach them can be considerable.

Therefore, the paper recommends 'compensatory measures' for the other side in the talks - such as more generous offers on visas and work permits for temporary migrants, higher development assistance or better access to EU markets.

The European Council on Refugees and Exile is critical of the readmission agreements. María-Teresa Gil is calling for safeguards to be inserted into the accords, to minimise the risk that people sent home will face torture or repression, and to ensure that those whose asylum bids have been spurned have the right to appeal.

But Pietro Petrucci, the Commission's justice spokesman, defends the readmission talks: "Whatever decision the Commission takes, we have an obligation to respect the European Convention on Human Rights."

The UN's High Commission for Refugees (UNHCR) says the right to appeal bids which are rejected must be part of the entire asylum procedure.

"If a person has gone through the whole procedure, with all guarantees built in, and found not to be in need of protection, then we would have no objection to them being returned," explains Diederik Kramers, UNHCR's Brussels spokesman. "It is a question mostly of access to the procedure."

Although some far-right parties have made electoral gains by scaremongering about a 'mass influx' of asylum-seekers in Europe, such claims are frequently not borne out by statistics.

UNHCR has calculated that the number of applications made in 14 EU states (no data was available for Italy) in the first three months of this year was 78,873. That was 17 less than the figure (95,348) for the last quarter of 2002.

Yet despite fewer asylum-seekers, migration issues look set to remain high on the political agenda for the foreseeable future.