EU Asylum and
Immigration Policy (1)
Recognising peoples’ rights: Qualifying for Refugee
Status
Contents:
•
Introduction
•
Who
does the EU consider to be a Refugee?
•
What
happens now? What can you do?
•
Useful
Links
•
Other Papers in this Series
Introduction
Gradually
the development of the free movement of people within the European
Union has given rise to concerns about the differences between the
national immigration and asylum systems of the Member States. Throughout
the late 1980s and early 1990s, political discussions surrounded the
creation of common or coordinated systems of immigration control.
This was speeded up with the creation of the Schengen zone of free
movement. Gradually the Member States moved closer to create common
EU policies. Since 1999, and the ratification of the Treaty of Amsterdam,
the EU Member States and institutions have been working on the harmonisation
of European asylum and immigration systems. In
order to harmonise asylum application systems and requirements,
a common definition of ‘refugee’ is needed between the
EU Member States. Crucially, the scope of this definition is one
of the keys to whether the future European asylum system aims to
create a tighter ‘Fortress Europe’, or aims to provide
genuine security and protection for those in need of European refuge.
Through the so-called ‘Qualification Directive’ the
Member States aim to ensure a minimum level of protection for those
in genuine danger. However, the application of the definition of
refugee is highly dependent on the harmonisation of asylum procedures
(see Briefing 2).
In
the words of Kofi Annan when addressing the European Parliament
in January 2004,
‘… when refugees cannot seek asylum because of offshore
barriers, or are detained for excessive periods in unsatisfactory
conditions, or are refused entry because of restrictive interpretations
of the Convention, the asylum system is broken, and the promise
of the Convention is broken, too’ .
| The
United Nations High Commission for Refugees (UNHCR) is the guardian
of the Geneva Convention on the status of refugees (1951 and
amendments 1967), which contains the globally accepted definition
of a ‘refugee’: someone who owing to a well
founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political
opinion, is outside the country of his/her nationality and is
unable or, owing to such fear, is unwilling to avail himself/herself
of the protection of his/her country; or who, not having a nationality
and being outside the country of his/her former residence as
a result of such events, is unable or, owing to such fear is
unwilling to return to it. |
The
Geneva Convention’s definition forms the basis of all European
asylum systems but is interpreted in quite different ways by the
various EU Member States. Therefore, harmonisation has been concentrated
on the interpretation of this definition. Moreover, there are vast
differences between the Member States’ definitions and treatment
of those who fail to gain asylum but cannot return to their country
of origin.
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Who
does the EU consider to be a Refugee?
In 2001,
the European Commission proposed a Directive (1)
laying down minimum standards for the qualification and status of
third-country nationals and stateless persons as refugees or as persons
who otherwise need international protection. The Commission proposed
two separate but complementary types of beneficiary:
- Refugee
– as defined by the Geneva Convention above.
Importantly, the EU Directive accepts that state and non-state
actors are capable of inflicting persecution. Therefore,
those severely terrorised to the point of persecution by private
militias (e.g. in Dafur) or their neighbours and communities (e.g.
some national minorities, gays and lesbians in some countries)
could claim refuge. This is already the case in 13 of the 15 old
EU Member States, but not in Germany or France, where the acceptance
of persecution by state actors alone has been seen as a means
of reducing the numbers of asylum seekers in recent years.
- Beneficiary
of subsidiary protection – Essentially concerning
people who fail to claim asylum successfully, but cannot be returned
to their country of origin due to a well-founded fear of serious
harm, this is a new form of international protection although
it is used already in a number of Member States.
Currently,
in countries like Germany, those who fail to gain refugee status
but cannot return to their homes, or a safe third country, are treated
abysmally within the Duldung system. They and their families have
no rights to any form of social integration, help or services, education,
housing or the right to work. Consequently, they live in a legal,
economic and social limbo. The inclusion of this legal category
is therefore an improvement.
The
Directive acknowledges the fundamental right of displaced persons
not to be expelled from a Member State or sent back to a situation
in which their life or freedom are in danger (non-refoulement).
This right contained in the Geneva Convention has been supplemented
by the European Court of Human Rights in Strasbourg to ensure protection
for those in danger of torture, cruel, inhuman or degrading treatment
if they are expelled or returned.
The
proposed Directive also covers minimum rights and benefits to be
enjoyed by both refugees and those provided with subsidiary protection.
These include importantly, the right to work, multi-annual residence
permits, access to integration programmes etc. Although the rights
and benefits are the same in principle, to those with subsidiary
protection access is made available only on a gradual basis.
However,
the Directive opens the possibility for Member States to refuse
to provide international protection for people if they judge that
there is part of a country of origin where the applicant would not
be subject to persecution. While this may sound sensible, there
are no common criteria agreed to guide Member States in taking such
a decision! Safeguards are necessary to ensure that people can reach
these safe internal protection zones safely and that adequate protection
and resources are available there. (See concerns about the application
of non-refoulement in Briefing Paper 2)
(1)
Council Directive on minimum standards for the qualification and
status of third country- nationals and stateless persons as refugees
or as persons who otherwise need international protection (COM(2001)510)
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What
happens now? What can you do?
The Directive
was formally agreed in April 2004 by the national governments in the
Council of Ministers. Therefore, it will now be sent to the national
parliaments for adoption into national law. Normally there is a two-year
transposition period. This
is a crucial stage of the process as Directives can be modified
by national parliaments as long as the aims and spirit of the text
is guarded. Therefore it is important that we are vigilant of national
parliamentary debates.
It
is important to contact and press your national parliamentarians
to ensure that the text of this Directive is adequately adopted,
and to ensure that national governments do not reduce the level
of existing national rules as a result of the legislation, rules
which are currently higher than the common European minimum standards.
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Useful
Links
•
National
refugee councils and organisations, and the umbrella European Council
for Refugees and Exiles (ECRE): www.ecre.org
(includes a list of national organisations) •
UNHCR:
www.unhcr.org
•
Members
of the European Parliament can also be contacted: www.europarl.eu.int
(for full list)
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Other
Papers in this Series
(2)
A race to the bottom: Harmonisation of where and how asylum applications
are dealt with HTML
PDF (80KB)
(3)
Tools for integration: Harmonising reception conditions HTML
PDF (57KB)
(4)
Undocumented migrants: Halting the traffic of human beings while
protecting fundamental rights
HTML PDF
(63KB)
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