(Published in: Schengen en Panne, ed. Alexis Pauly, European Institute of Public Administration, Maastricht, 1994, pp. 157-167.)
LUISE DRÜKE[1]
ABSTRACT
This
paper is not designed as a discussion on the background of the cooperation,
structures and instruments relating to asylum-seekers or/and border crossings,
nor on the Treaty on European Union (TEU). Neither are we discussing the
efforts under way in the framework of the Council of Europe and more recently
of the Conference on Security and Cooperation (CSCE) concerning asylum-seekers
and refugees. Previous papers have already focused on the Dublin and the
Schengen Conventions.
In this paper, we shall first focus on priorities for
access to refugee protection in the Member States of the European Union (EU)
and then analyze the main areas of harmonization. After a brief comparative review
of asylum policies in some Member States, we shall examine the first results
since the entry into force of the Treaty on European Union, new structures and
the 1994 work priorities on asylum within the context of the Union's justice
and home affairs. Finally, we shall highlight certain elements of concern, such
as the application of the procedural devices of 'third safe countries' in
manifestly unfounded and accelerated procedures, possible difficulties of
asylum-seekers to gain access to the territory and the procedure in some
European Union Member States. We submit that the TEU, on the basis of Art. 100C
and K 1 (1-3), offers new ground for cooperation and structure, and thus for
the closer association of UNHCR with asylum-related bodies now functioning
under the Treaty, and potentially strengthened protection prospects for
asylum-seekers at the external borders of the European Union.
In conclusion, in the light of the examination, the
following elements are the first concrete results and indications of a
coordinated effort to help prevent the external borders of the European Union
closing for asylum-seekers:
a) The
established cooperation between the Centre for Information on Asylum (CIREA) of
the EU and UNHCR is a first concrete contribution to facilitate speedy and
efficient handling of asylum applications. With the country of origin and other information, UNHCR hopes
to assist EU MemberStates further in the implementation, both speedily and
flexibly, of the London resolutions.
b) Article
33 of the 1951 Convention, the prohibition against refoulement
continues to provide a basis for international refugee protection and
individual treatment of asylum requests, even if implemented as an accelerated
procedure or as a temporary arrangement for persons in need of protection
falling outside the refugee definition.
c) After a steady strengthening of contacts with the governments of the Twelve and Schengen since 1990, there is ground for UNHCR's association with bodies under the TEU and Schengen dealing with asylum and refugee questions, according to Art. 35 of the 1951 Geneva Convention, K.2 of the TEU and Article 28 of the 1990 Schengen Agreement.
1. PRIORITIES FOR ACCESS TO REFUGEE
PROTECTION AND ASYLUM IN EUROPE
According to the 1993
Note on International Protection of UNHCR to the Executive Committee of the
High Commissioners Programme[2],
the priorities may be summarized as follows:
a) Admission of Refugees to Countries of Asylum
Asylum, in the core
sense of admission to safety in another country, security against refoulement
and respect for basic human rights, forms the heart of international protection
today. Without asylum, the very survival of the refugee is in danger. The great
majority of states continue to adhere to generous asylum policies, providing
refuge to persons in need of protection until a solution can be found. The
sheer number of refugees seeking asylum, however, has been creating a great
challenge for the communities involved, be it in the USA, in Europe or
elsewhere. This has brought the institution of asylum under serious pressure and
is causing threats to asylum on several fronts. The challenges ahead include
access to safety for refugees through admission to a country of asylum and
protection against refoulement and ensuring their security and well-being once
they are within countries of asylum.
- Ensuring
refugees' admission to safety in countries of asylum:
Outright rejection at frontiers, interceptions,
push-offs at the sea and forcible returns of asylum-seekers to persecution or
danger are among the various forms of denial of access. At the same time,
application of administrative or legal measures which prevent asylum-seekers
from reaching a refuge and admission to procedures can also result in denial of
principle of international protection.
- Threats to the principle of
non-refoulement
The principal of non-refoulement is the cornerstone of
asylum and of international refugee
law, which is expressed in Article 33 in the 1951 Geneva Convention. It applies
to refugees irrespective of whether they have been formally recognized as such
- that is, even before a decision can be made on an application for refugee
status. A number of countries, where the admission or presence of certain
groups of refugees have been perceived as incompatible with national interests
or domestic concerns, have ignored or undermined this principle. In certain
countries border officials have denied entry to asylum-seekers coming directly
from their country of origin, resorting to electrified fences, barbed wire and
similar devices. Another threat to international observance of the principle of
non-refoulement has been the contention that it is not binding on a state
outside its own national territory, so that a government may return refugees
directly to persecution provided they have not reached or crossed its borders.
This claim is inconsistent with the purpose of the 1951 Convention and the
universal mandate conferred upon the High Commissioner by the international
community through the UN General Assembly to provide international protection
for refugees without territorial limitations.
- Safeguarding the principle of non-refoulement in the context of
measures to control irregular migration:
In view of the
restrictions on immigration in most countries of the world, it is crucial to
distinguish between people in need of protection and other migrants. At the
same time it is important to limit the abuse of the asylum system, while
maintaining appropriate safeguards for people in need of protection. Measures
to prevent unauthorized immigration, such as visa requirements, carrier
sanctions and airport screening, if applied indiscriminately, can endanger
access to refuge of persecuted persons.
b)
Variable Approaches to Asylum (Temporary Protection)
Although the granting of
asylum has often been understood to imply permanent settlement, asylum need not
be linked to immigration and assimilation. Many states have been providing
protection under temporary arrangements such as 'temporary leave to remain' and
'temporary protected status' or specifically for the persons from ex-Yugoslavia
'temporary protection'. The granting of temporary protection to persons fleeing
human rights abuses and conflicts illustrates the value of prima facie group determination as an alternative to individual
procedures in situations of large-scale flight. When temporary protection has
had to be prolonged, a number of states have proceeded to recognize the refugee
status of some persons who had been admitted temporarily, while according to
others humanitarian status. In addition, legislative proposals in two
countries, while providing for a periodic review for all refugees of whether
the circumstances that were the basis for their asylum claim still prevail,
recognize the individual's need for stability and membership in a community by
authorizing provisional asylum to be transformed into permanent residence after
a specific period. They thus provide a bridge between the grant of asylum on a
temporary basis, as a means to provide safety and to meet the individual's need
for protection until a solution is found, and asylum in the broader sense as a
form of integration to meet the need for solutions by institutions where safe
return home is not possible.
c) Burden-Sharing,
International Solidarity and Asylum
As stricter controls are
imposed by the developed countries on the admission of asylum-seekers, there is
a risk that an even greater share of the burden of caring for refugees will be
shifted to those countries immediately adjacent, by land, sea or air, to the
refugees' countries of origin, and thus the fabric of international protection
may be weakened by an apparent decrease in international solidarity. First
asylum countries already shelter the vast majority of the world's refugees, but
they are also in many cases the countries least able to make available the
material resources needed to maintain them. Therefore it is important to
acknowledge both the enormous contribution made, without recompense, by host
countries and their need for additional development and rehabilitation assistance
to compensate for costs, e.g. to their infrastructure and their ecology.
Another form of burden-sharing that has helped to bolster asylum has been for
other countries to receive refugees both by maintaining open borders for
refugees arriving on their own and through special programmes for resettlement
or temporary protection of refugees coming from countries of first asylum. Such
reception policies are of benefit to the refugees concerned and lighten the
burden on countries of first asylum, making it easier for these countries to
continue to receive other refugees escaping from danger.
d)
Prevention and Solutions
For the individual potential victim of human
rights violations or armed conflict, as well as for the international community
faced with a growing >refugee problem=, the ideal policy and the most
effective form of protection is prevention. Prevention means action to address
and remedy conditions that could force people to become refugees. Recent events
have shown all too clearly the need for earlier and more effective action to
prevent potential refugee-producing situations from deteriorating to the point
where flight becomes the only option. Both preventive actions and the promotion
of the solution of voluntary repatriation involve action in and by countries of
origin to remove or reduce the factors which force displacement. Prevention and
solutions are in fact different aspects or phases of a single process with the
same goal, which is to maintain or restore the link between individuals,
communities and government within a country.
The
objective of prevention is not to obstruct escape from danger or persecution,
but to make flight unnecessary by removing or alleviating the conditions that
force people to flee. Defending the right to remain does not in any way negate
the right to seek and to enjoy asylum. The UNHCR has always insisted that its
activities in countries of origin are not incompatible with and must not in any
way undermine the institution of asylum or the individual's access to safety.
At the same time, the presence of UNHCR in a country of origin in connection
with prevention, humanitarian assistance and/or voluntary repatriation should
not be taken to imply that conditions there are safe or that persons fleeing
that country are not in need of international protection. Given the vast
potential field of action for preventive activities, and the fact that the
enterprise of prevention goes far beyond the purely humanitarian sphere, it is
obvious that there are limits to what a single humanitarian agency such as
UNHCR can undertake, and that there is little that UNHCR can accomplish on its
own. The contribution of UNHCR in the field of prevention must primarily be
catalytic and collaborative, with respect to both the action of states, whose
cooperation is indispensable, as well as that of other United Nations and
international agencies. UNHCR's role in prevention thus ranges from active
participation in early-warning mechanisms and alerting the international
community of the need to address specific situations that have the potential to
cause refugee problems, through active participation in inter-agency efforts
and in the humanitarian aspects of preventive diplomacy, to the assumption of a
lead operational role in humanitarian efforts within a particular country or
region to provide assistance and protection to people who might otherwise be
forced to flee their countries.
The
Executive Committee of the High Commissioner's Programme and the General
Assembly have expressed their support for UNHCR's efforts to explore new
options and undertake new protection activities in the areas of prevention and
solutions, as well as asylum, consistent with its mandate and in coordination
with other United Nations organs.[3]
2.
MAIN AREAS OF HARMONIZATION
a) On Resolutions on Asylum of December 1992
UNHCR recognizes the
considerable increase in asylum applications in Europe and the high number of
claimants who are either determined not to qualify for refugee status or do not
fulfil the criteria to be allowed to
stay in the EC Member States on other compelling grounds.
The
resolution on manifestly unfounded applications for asylum does, indeed, contain a number of positive elements.
It is noted that the EC Member States guarantee to comply with their obligations
under the 1951 Convention. It is, furthermore, understood from its Flreamble
that the EC Member States will within national policies and legislation
continue to allow persons to stay in their territory for 'other compelling
reasons outside the 1951 Convention'. These are crucial elements for UNHCR.
Moreover, the procedural safeguards for the processing of manifestly unfounded
applications (decision-making by authorities, normally competent in asylum
matters, full interview, appeal/ review possibility) are in general in line
with Executive Committee Conclusion 30 on manifestly unfounded asylum claims.
UNHCR is, however, of
the opinion that a number of cases which according to this resolution
are to be considered as manifestly unfounded cannot be dealt with appropriately
in accelerated procedures because of their inherently complex nature. This
applies in particular when the possibility of an internal flight alternative is
to be established, or when one of the exclusion clauses of the 1951 Convention
(e.g. that relating to the commission of a common crime) is invoked by a Member
State.
The EC Member States may, according to the resolution,
consider asylum applications under accelerated procedures in case of deliberate
deception or abuse of the asylum procedure. It is UNHCR's view, in line with
Executive Committee Conclusion 58, that asylum applicants should cooperate with
the authorities and not provide them with misleading information. UNHCR
believes, however, that automatic recourse to accelerated procedures in all
cases of this kind could lead to inequitable results and may, therefore, not be
the most appropriate arrangement. The mere fact of having made false statements
to the authorities does not in itself necessarily vitiate an asylum application
and make it manifestly unfounded. In this connection, UNHCR notes that the EC
Member States recognize that deliberate deception or abuse >cannot in themselves
outweigh a well founded fear of persecution under article 1 of the Geneva
Convention=. It trusts that this crucial element will be duly
taken into account when applying these terms of the resolution.
With regard to the resolution on third host
countries UNHCR attaches the greatest importance to a proper assessment of
the situation in the country concerned before an asylum applicant is sent.
UNHCR notes with satisfaction that the EC Member States are obliged to assess
in each individual case the fulfilment of all the fundamental requirements
which determine whether a third host country is one to which an asylum
applicant can appropriately be returned. UNHCR is also prepared to share
relevant information with interested states. UNHCR has, however, recommended
that, in order to avoid the risk of so-called orbit cases, the agreement of the
third host country be obtained before an asylum applicant is sent to that
country. UNHCR has, furthermore, expressed the view - in line with the relevant
Executive Committee Conclusions -that the third host country concept should not
in the absence of compelling reasons be applied to a person who has been in
mere transit in another country with which he has no links and with whose
authorities he has had no contact.
b) Resolutions of June 1993
UNHCR welcomes the adoption by the ministers, further
to their Conclusions of December 1992, of a new resolution on the standards
of treatment of protection from the former Yugoslavia. The basis for this
policy has been laid at the International Conference in Geneva on 29 July 1992
in order to render protection and assistance to the greatest extent possible in
the region while, at the same time, allowing admission to safety of
specifically vulnerable groups and spontaneously arriving persons in need.
The resolution explicitly refers both to '...persons
whose admission has been organized directly by the Member States and of those
who make their own way to national territory...'. UNHCR urges governments to
take full account of and overcome the increasing difficulties for the latter to
get admission to safety effectively.
The resolution recognizes the necessity of family
reunion. Given the protracted period of stay, family reunion is another
token of humanitarian policy towards those who benefit from temporary
protection, and UNHCR appeals to governments to apply this principle
generously.
UNHCR has also taken note of the general resolution
adopted on family reunion and, in particular, of the intention of the EC Member
States to study family reunion of persons recognized as refugees at a later
stage, since this resolution does not relate to this category of persons for
whom some states have a more favourable policy.
UNHCR welcomes the decision of the ministers to engage
in an of public domain information between CIREA and the CDR (Centre for
Documentation on Refugees) of UNHCR.
3. ASYLUM POLICIES IN SOME MEMBER STATES: COMPARATIVE REVIEW
As indicated before under the British and
the Danish EC Presidencies, the resolutions on manifestly unfounded asylum
applications, third host country, safe country of origin, and former
Yugoslavia, represent in UNHCR's view procedural devices to facilitate a more
effective implementation of determination procedures.
Looking at the statistical data available, we find
that in 1992 there were around 560,000 asylum applications in the EC Member
States. Germany alone had a sharp increase of 71 % with 438,000 applications,
whereas the other EC Member States experienced a decrease by 50,000 asylum
applications. Germany alone had almost 80% (78.18% of the 560,000
asylum-seekers in the EC). With Finland, Norway, Sweden, Austria and
Switzerland included, Germany had about 64% of all asylum applications in the
EC and EFTA states (63.9% of some 685,000).[4]
In 1992, the recognition rate was below 10% in the
following countries: Belgium (8%), Germany (4.3%), UK (3.42%), Ireland (2.9%),
Italy (4.8%), Spain (5.8% of which 1.54% were according to the 1951 Geneva
Convention and the rest were under 'asylum' in Spanish law, which has yet to be
abolished), Finland (0.88%), Sweden (5%), Norway (2.3%), Austria (9.7%) and
Switzerland (4.5%). The recognition rate was much higheronly in France (27.95%,
including the recognition application after the appeal body) and in The
Netherlands (14.15%).
Concerning the countries of origin in 1992, the former
Yugoslavia was not only in the first place in Germany, but also in many other
countries (such as the UK, The Netherlands, Sweden, Finland, Switzerland,
Austria, France and Belgium). One of the top places was also taken by Romania
(in Germany, Italy, Portugal, Austria, Belgium, Spain, The Netherlands and
France). Bulgaria was also among the most important countries of origin (in
Germany in third place and in Italy and Spain in fourth place). There were
particularly many asylum-seekers from Sri Lanka (in France, first place and, in
Switzerland and UK, second place). Turkey was also among the important
countries of origin, in Austria (second place), Greece (second place),
Switzerland (third place), Germany (fourth place) and Belgium (fifth place).
If one considers the origin by continent, the majority
of asylum-seekers in Europe (70% in 1992) were from Europe. In Sweden, about
80-85% alone were from ex-Yugoslavia until October 1992. In Belgium, about 40%
were from Romania and Bulgaria. Asylum-seekers in the UK came mainly from Asia
and, in France, mainly from Asia and Africa, with only 23% from Europe.[5]
As the concept of first host country is much under discussion, we have found that most
states in Europe deny entry to asylum-seekers if they come from a so-called
'safe third host country' (meaning that no refoulement to the country of origin
is supposed to have taken place). This is decided either on the basis on a
procedure of admissibility, as in Belgium or in France, or in a procedure of
non-admissibility as in Switzerland, or on the basis of an accelerated asylum
procedure, as in Austria. In Germany, an accelerated procedure is also applied
in which normally the entitlement to asylum according to Article 16a para. 1 is
not examined.
Considering the application of accelerated
procedure in cases of safe countries of origin and other manifestly unfounded
asylum applications, it can be said that, until June 1993, no states had
binding lists of safe countries of origin, except Switzerland[6]
and Germany. In practice, however, the competent authorities and courts apply
these lists to certain countries of origin. In these cases, the application is
kept flexible, especially in view of possible changes in the countries of
origin. As is known, even the ministers responsible for immigration were not
able to agree in their resolution of 30 November 1992 on the lists of countries
where there is generally no serious risk of persecution.
Today, most states apply the accelerated procedure in
cases of manifestly unfounded asylum requests, be it in the framework of asylum
procedures (in Switzerland, stronger acceleration at airports)or in the
determination procedures (in Belgium, where the deadline is fixed by decision
by the authorities within 8 days).
A new immigration law approved by the French
Parliament in July 1993 was amended on 12 October 1993 by the Senate (by 229
votes against 85) following the decision of the Constitutional Court that four
of its provisions were found not to be in accordance with the French
Constitution. In line with the first findings, the following four subjects were
addressed: >Les fraudes au mariage, la retention administrative,
la retention judiciaire et l'interdiction du territoire.[7]
a) Germany
In Germany, a particularly accelerated procedure is
also foreseen for airports, according to Article 18a of the asylum procedure law
of 1 July 1993. This procedure is intended to be applicable to asylum-seekers
from safe countries of origin, according to Article 16a, ' 3 of the new Grundgesetz, as well as to
asylum-seekers who have no valid passport. Of the 6,851 asylum-seekers at Frankfurt
airport in 1991, 6,269 (91.5% of all) had no or a falsified passport. But only
a total of 2.53% of all asylum applications were submitted at the air, sea and
land borders (= 11,802). Asylum-seekers at airports have their cases determined
by the Bundesamt (the authority
usually responsible for treating asylum applications; this is in line with
Conclusion No. 30 of the Executive Committee of the UN High Commissioner's
Programme on manifestly unfounded asylum applications). The asylum application
submitted at the airport must be treated within the country if it is not
possible to complete the procedure within 19 days at the airport (2 days for
the decision of the Bundesamt, 3 days
for the submission of an application to obtain initial protection and 14 days
for the judicial accelerated decision in the preliminary protection procedure).
This is unless the asylum application is rejected as manifestly unfounded and
against which no appeal is submitted.
Germany intends to ensure that the asylum application
is examined fully by the authority normally responsible for asylum procedures (Bundesamt). Furthermore, protection is
expected to be possible either inside the country or through an appeal from
outside the territory. In the case of rejection at the airport, the air
carriers which brought the asylum applicants to Germany are, in principle,
responsible for their return, which is no longer the case once they have
entered the country.[8]
During the hearings for the new asylum procedure law, UNHCR had already warned
of potential dangers of mass refoulement as one of the problems of the new
asylum procedure law. In fact, on 24 March 1993, UNHCR Bonn publicly warned
pointing out that, in the future, it would no longer be the cause of flight but
the method of flight which would become the critical factor for obtaining
asylum. UNHCR urged that, in order to avoid a chain refoulement, 'it is
important that the application of the third host country concept be accompanied
by necessary procedural safeguards and regulations and that asylum applicants
should have the possibility to rebut the assumed safety in the third host
country[9]
(which also corresponds to the EC standard in the resolution on third host
countries of 30 November 1992).
According to the Ministry of Interior in Germany, there were 20,658 asylum applications in Germany in
the month of July 1993 after the application of the new asylum procedure
law on 1 July 1993, as compared to 31,123 the month before (a decrease of
33.7%). It also stated that there had been a sign if scant increase in
foreigners rejected at the border - from 9,945 in June to 15,679 in July 1993.
Sonic 72% of these foreigners were denied entry due to lack of or insufficient
travel documents. More importantly, of the 573 submitted asylum applications in
July at the border, 187 have been denied entry on the basis of the new asylum
procedure law and 36% of these applicants did not have the necessary entry
documents. Thus, the number of asylum applications submitted at the border
decreased in July 1993 by 1.9% compared to the total number of asylum-seekers
in Germany. In order to ensure the return to the countries of origin in July,
the border authorities provided a total of 288 substitute travel documents.[10]
Furthermore, it appears that some 65% of the land
crossings were detected at the Czech border and the remainder at the Polish
border. This might be due to the fact that a readmission treaty between the
German and the Czech Republic has not yet been concluded which makes it
difficult for Germany to apply the safe third country principle.
As has been the case until now, the majority of asylum applications have been lodged after entering the country. Still, only 2.8% of all asylum applications in July were lodged at the border. The accelerated airport procedures at the Frankfurt airport have received a great deal of media coverage during the initial phase, as a number of rejected asylum-seekers made use of their right under the Constitution to appeal to the Federal Constitutional Court (FCC). As of 13 August 1993, the FCC has concluded that, in 5 cases (out of 15), the Federal Office for the recognition of Foreign Refugees (FO) and the Administrative Court were not sufficiently careful in their judgment under the new legislation, as they had even included two cases of Ghanaian nationals, as coming from a' safe country of origin'. The rebuttal of the presumption 'safe country of origin' was deemed not to have been examined with the prerequisite care and, therefore, the cases concerned were allowed to enter Germany and to pursue their cases in the regular asylum procedure. In the cases of other Ghanaians, the FCC was satisfied that the necessary care had been applied. Only 14 out of the 234 asylum-seekers at Frankfurt airport during July appealed to the FCC.
Concerns have arisen from the fact that people who
have come through a 'safe third country' (i.e. country of first asylum), which
in the case of Germany applies to all its neighbouring countries, maybe
deported immediately without any guarantee of access to a fair procedure in
that third country. Although persons coming from 'other safe third countries'
(where they have stayed for at least 3 months) are by law still required to be
given an opportunity to rebut the presumption of security elsewhere, it can be
feared that such an opportunity will not or hardly be given. Though
refoulements have not (yet) been substantiated, there appear to be deficiencies
in the present monitoring mechanisms. It becomes clear that the implementation
of the safe third country principle in European state practice is reaching well
beyond the relationship between Germany and its immediate neighbours. This
brings one to fear that there is a 'domino effect' in the new German asylum
regime.[11]
Reports of August 1993 include a case of a significant
judgment rendered on 13 September 1993 concerning the third country principle
by the Federal Constitutional Court.[12]
On 19 August 1993 an Iraqi asylum-seeker (female) arrived at Frankfurt airport
from Athens. She had reached Greece overland (Iraq -Turkey - Greece). Upon
approaching the border police with a request for asylum she was refused
admission to the procedure on the grounds that she had arrived from a safe
country (Greece). The hearing grated by the Federal Office in an accelerated
procedure on 24 August 1993 found her application manifestly unfounded. The
border police ordered that she be returned to Greece. She then appealed again
to the Administrative Court for a temporary protection injunction to allow
entry to the regular asylum procedure. On 7 September she was given a negative
response on the grounds that she had entered from a safe third country.
This led to an appeal to the Constitutional Court
which decided[13] that
a temporary injunction was justified as the absence of such action could have
serious consequences for the applicant who maintained that she would not be
protected in Greece from further expulsion (presumably to Turkey, from where
she had entered and where she would not be assured safety). The Court ordered
the entry of applicant (who had stayed more than the limit of 19 days in
transit at the Frankfurt airport) accepting the fact that the safe third
country principle is temporarily suspended for those applicants who arrive
ex-Greece and who reached Greece not directly from the country of origin but
indirectly, via another country.[14]
Although the number of asylum applications has gone
down, the total number is still significantly high. As long as the majority of
asylum-seekers only submit their asylum claims once they have safely entered
Germany and as long as the only effective readmission agreement is between
Poland and Germany, it could be that the number of asylum applications will
remain very significant, since the persons concerned would be able to hide
information on the safe third country through which they reach Germany. Even
though the Federal Office has considerably increased its number of decisions
(49,501 in July 1993), the quality of decisions has been a continuing topic of
discussion between UNHCR in Germany and the Federal Office. There are reports
that many rejected asylum-seekers prefer to depart voluntarily in order to keep
the chances open for re-entry legally in the future. Other indications show
increasing complaints that deportation centres (Abschiebehaftanstalten) are filled to full capacity or even too
full, which causes great difficulties.[15]
Up to the end of July 1993, there were a cumulative
number of some 244,700 asylum applications in Germany. This represents an
increase of 4.6% compared to the same period the year before.[16]
This would on the whole appear to be an interesting development. What remains to be
seen, however, is the price at which this new relatively low trend for Germany
is occurring?
b) France
The Constitutional
Council of France declared on 13 August 1993 that the eight provisions of the
new French law on immigration and the entry conditions of stay in France, which
were adopted in July 1993 by the French Parliament, do not conform with the
Constitution. Among these provisions are those which foresee a denial of entry
at the border. Concerning asylum, the Constitutional Court ruled that an asylum
applicant who has been rejected in another European country may have his case
examined in France. With this, the Schengen Convention becomes 'non-applicable'.
The Constitutional Court affirmed that the asylum right which is recognized in
the Preamble to the Constitution of 1946 implies:
'd'une manière
générale, que l=étranger qui se réclame de ce droit soit
autorisé à demeurer provisoirement sur le territoire j'usqu=à ce qu'il ait
été statué sur sa demande; que, sous reserve de la
conciliation de cette exigence avec la sauvegarde de l'ordre public,
l'admission au séjour qui doit lui permettre d'exercer effectivement les
droits de la défense qui constituent pour toutes les personnes, queues
soient de nationality française, de nationalité
étrangère ou apatrides, un droit fondamental à
caractère constitutionnel=.[17]
As the
Constitutional Court affirmed that France is held by its obligation under the
1951 Geneva Convention relating to the Status of Refucees (referred to further
as '1951 Geneva Convention'), it forces France to renounce any preliminary
controls the moment a foreigner invokes the said Preamble. The police (at the
border) or the préfet inside
the country cannot deny temporary stay to the asylum-seeker until the competent
authority (Office française de
protection des réfugiés et apatrides/ OFPRA) has decided on
the case. As restrictive measures are inconceivable with this decision, it is
difficult to see how the government can avoid a constitutional reform if it
wishes to implement Schengen and other obligations.[18]
4. ENTRY INTO FORCE OF THE TREATY AND PRIORITIES FOR 1994 ON ASYLUM
The
entry into force of the Treaty op European Union on 1 November 1993 and the
programme for abolishing internal border controls are both of direct relevance
for asylum-seekers and refugees. The free circulation of persons, according to
Article 8A of the 1987 Single European Act, which also benefits this category
of persons, remains an objective to be attained in the years to come. The entry
into force of the Treaty on European Union and three following events, however,
are likely to provide new impetus in cooperation on justice and home affairs,
including free circulation and asylum.
At the European Council of 29 October 1993 the Heads
of State and Government confirmed that the Treaty introduced the principle of
greater cooperation in justice and home affairs. They emphasized that the
policy of the EU on such sensitive matters should provide citizens not only
with an assurance that the creation of an area without frontiers will not be
achieved at the expense of security, but also that the latter will be
guaranteed more effectively in future 'thanks to systematic co-operation
between the Member States'.[19]
Besides focusing on common action in the field of asylum laws in accordance
with the Declaration annexed to the Treaty, the European Council considered of
priority the establishment, in accordance with the new provisions of the
Treaty, of the list of third countries whose nationals require visas and the
question of the readmission of illegal immigrants.
The Council on Justice and Home Affairs at its first
meeting after the entry into force of the Treaty on 29/30 November 1993
elaborated the priority work programme for 1994 in the field of justice and
home affairs to include the following matters in the area of asylum:
a) Follow-up concerning the implementation of the
Dublin Convention;
b) Considerations relating to the fingerprint
system of EURODAC;
c) Harmonized
application of refugee definition;
d) Definition of
minimal guarantees in determination procedures; and
e) Examination of the possibility to use the
London Resolution as a basis for elaborating a common action or a convention.
Other matters foreseen for 1994 include: the
harmonization of certain guarantees in the determination procedures, adjustment
of reception of asylum-seekers in the Member States (especially concerning
their rights and obligations); adoption of common positions of the Member
States in external bodies (namely in the Executive Committee of the UNHCR and
the Council of Europe); and burden-sharing.
Activities envisaged in the field of immigration
address specifically border and visa policies, admission and readmission, as
well as deportation and illegal immigration questions. In order to take a
broader perspective external aspects relating to asylum and immigration are
planned to be examined, such as principles that should figure in bilateral and
multilateral treaties on readmission.[20]
The new structures established on 1 November 1993 to deal with these matters
were agreed to be groups on:
- migration
- asylum
- visas
- external
borders
- false
documents;
plus, CIREA (Centre for Information on Asylum) and
CIREFI (Centre for Information on External Borders) have been invited to
continue their work.[21]
The European Council of 10/ 11 December 1993 expressed
its determination to use to the full the new possibilities under the Treaty in
the area of justice and home affairs, with due regard to the free movement of
persons and the security of citizens. It took note of the initial work done on
the matter and recorded its agreement on the plan of action drawn up by
the Council on points which include the following:
- establishment
of a common list of non-member countries whose nationals require visas;
- better coordination between policies in the
field of justice and home affairs and the Common Foreign and Security Policy,
particularly as regards re-admission of illegal immigrants by non-member
countries.[22]
During the Belgian Presidency and on the occasion of
the European Council, UNHCR, in its ongoing contacts, exchanged views and
information on issues under discussion. These issues focused on the cooperation
between the clearing house on asylum situated C . ~q$T9 |&8BZߪ㊅
&
A=ܠiQ .>v;pcOrNJ)k$l'hݣߴg%* )a= tFeZ}?$ %$x DX`商ܩ1J _w??[AÉ
#czs_ 8Uppy@
~diޭՐh7UP_bO^^X^[YfMbjQToj۬߱}ڀ!-]m;Z ?,c=\]5 )~?tdcxLZYn+["N3)"MLvj`]&і
T;
b) Access to the territory of and the asylum
procedures in the Schengen member states, and readmission agreements
for aliens should not be applied for asylum-seekers, without guaranteeing that
the third country will examine the asylum request as foreseen in the Schengen and
Dublin Conventions; general aliens-policy provisions of Schengen may affect
refugees, therefore visa policy and air-carrier sanctions should be applied in
such a way as to avert damaging effects on refugees;
c) Interaction between the Schengen/Dublin
harmonization process, migration control measures, general readmission
agreements, and national policies. What are the effects on admission and access
to procedures of all these measures together? Schengen and Dublin cannot be
considered in isolation;
d) UNHCR had provided its advice in the
process of drawing up the London Resolutions on asylum (manifestly
unfounded asylum requests, the third host country and safe
country questions). Some of our recommendations have been taken into
account, others not. We hope that with the implementation of issues, such as
internal flight alternative, or lack or false documents, asylum claims will not
automatically be considered manifestly unfounded. It would be preferable that
prior to returning an asylum applicant to a third host country, confirmation is
obtained as to the safety for the person(s) in question.
6.SOME FINAL REMARKS
a) UNHCR particularly appreciates the strong
commitment of the European Parliament, specifically of the Committee on
Development and Cooperation for its strong support for humanitarian aid and of
the Civil Liberties Committee for a number of important initiatives and reports
on refugee related questions. The most recent reports include the report of Mr
Cooney and the draft report by Mr Lambrias which both take a comprehensive
approach.
b) UNHCR is encouraged to see the comprehensive
approach taken by Mr Flynn of the Commission of the EC who, in a meeting
on 15 November 1993 with the High Commissioner, Mrs Ogata, expressed his
intention to translate the concept of the comprehensive approach into concrete
action in seeking to join hands in the Commission between internal and external
affairs and humanitarian/development and refugee aid.
c) UNHCR believes that for a number of reasons it
is particularly important to pursue comprehensive strategies in Eastern and
Central Europe, which should include strengthening inter-agency
cooperation, in order to mitigate the effect of suddenly becoming transit and
asylum countries and of the re-emergence of refugee generating conditions in
Eastern and Central Europe.
To conclude, there are issues which constitute
priority areas from UNHCR's perspective and they include the following. Even
though the 1951 Geneva Convention may no longer cover all those seeking
protection, Article 33 of the 1951 Geneva continues to remain the
cornerstone of refugee protection. In 1991 UNHCR had already indicated,
subsequent to the Albania influx into Italy, that in mass influx situations
individual examinations might not be practical. But normally the individual
examination of asylum applications, even in an accelerated manner, remains an
indispensable safeguard. The established cooperation CIREA/UNHCR is
starting to facilitate the exchange of information by which UNHCR hopes to
better assist Member States with country of origin and other information
to determine speedily refugee status in normal and accelerated procedures. This
will also facilitate the careful and flexible application of the London
Resolutions on asylum, and thus provide certain procedural safeguards. After
a steady strengthening of UNHCR/EC/Schengen contacts since 1990, the time
seems to have come to consider UNHCR's closer association with bodies under
the Treaty on European Union (TEU) dealing with asylum and refugees questions,
according to Art. 35 of the 1951 Geneva Convention and K.2 of the TEU, and Art.
28 of the 1990 Schengen Agreement. With
such closer association these regional bodies would be able to ensure that
universal protection principles of the European harmonization process are not just on paper,
but that they could be translated into action in accordance with international
legal standards. With these strengthened forms of cooperation between the
European institutions and UNHCR, where appropriate with the input of
independent specialized non-governmental expertise, refugees and other persons
in need of international protection could look to the European Union not with
fear of rejection but with hope.
Tirage à part d'un article du
livre:
Schengen
en panne
Sous la
direction de Alexis Pauly
ISBN
90-6779-084-2
81994,
European Institute of Public Administration Institut européen
d'adrninistration publique Maastricht, The Netherlands / Pays-Bas
Asylum-Seekers
and Refugees in the Turmoil After the
Opening
(or Closing) of the Frontiers and After the
Entry
into Force of the treaty on European Union
Luise Drüke[24]
[1] The views expressed here are those of the author and do not necessarily reflect those of UNHCR or the UN, who is currently the UNHCR Sr. European Affairs Officer in Brussels.
[2]
Note on International Protection (submitted by the
High Commissioner), A/ AC.96/815, 31 August 1993 to the Executive Committee of
the High Commissioner's Programme, forty-fourth session.
[3]
See Executive Committee Conclusion No. 68 (XLIII),
paras. (o) to (u); General Assembly resolution 47/105, paras. 9 to 17.
[4]
See Peter Schoenemann, 'Vergleich neuerer
Entwicklungen des Nationalen Asylrechts in Europa', in: Luise Drüke, Klaus
Weigelt (eds.) Fluchtziel Europa,
Strategies für eine neue Flüchtlingspolitik, Bonn Aktuell, 1993,
pp. 65-82.
[5]
Peter Schoenemann, ibid.
[6]
New on the list since the I October 1993: Albania,
Gambia, Ghana, Senegal.
[7]
See: Liberation, 13 October 1993, (annex 5).
[8]
Peter Schoenemann, ibid.
[9]
'Pressemitteilung- Kettenabschiebungen vermeiden',
UNHCR Branch Office in Bonn, 24 March 1993.
[10] Pressemitteilung des Bundesministerium des Inneren of
5 August 1993, pp. 1-3
[11] Internal assessment of UNHCR of 7 October 1993.
[12] Urteil 2 BvR 1938/93.
[13] Based on Art. 32(1) of BVerfGG.
[14] UNHCR, 16 September 1993.
[15]
Information from UNHCR in Germany.
[16]
'Zahl der Asylbewerberum cin Drittel
zurückgegangen',FrankfurterAllgemeine
Zeitung, 6 August 1993, p. 1.
[17]
4th paragraph of the Preamble to the 1946 French
Constitution, cited in: Le Figaro, August
1993.
[18] 'Droit d'asile: l'écueil de l'harmonisation.
Pour se conformer à la convention de Schengen, qui réglemente
l'acceuil des demandeurs d'asile, la France devrait passer par une
réforme de la Constitution', in Libération,
August 1993.
[19] European Council in Brussels, 29 October 1993,
Presidency Conclusions, SN 288/93, p. 4.
[20] Rapport du Conseil (Justice-Affaires
intérieures) au Conseil européen, plan d'action dans le domaine
Justice et Affaires Intérieures, 10655/93, JAI 11, 2 décembre
1993.
[21] Programme de travail prioritaire pour 1994 et structures
à instaurer dans le domaine 'Justice et Affaires intérieures',
10684/93, JAI 12, 2 décembre 1993, p. 4.