The European Policy Framework for Refugees, Asylum Seekers and Undocumented Migrants

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1 The European Policy Framework for Refugees, Asylum Seekers and Undocumented Migrants A) Defining the target groups - Migrant Immigration or migration refers to the movement of people from one nation-state to another, where they are not citizens. One has to distinguish between voluntary migration and involuntary or forced migration. Forced migration refers to the coerced movement of a person or persons away from their home or home region and can be due to religious and political persecution, as well as war. Under involuntary migration is also understood slave trade, trafficking in human beings or ethnic cleansing. Refugees can be considered as a subgroup of forced migrants or displaced persons. Illegal immigrants or irregular migrants are third-country nationals who enter the territory of a Member State illegally. Illegally means: - with false documents or - with the help of criminal networks of traffickers, or - persons who enter legally but overstay or change the purpose of stay without the approval of the authorities, or - asylum seekers who do not leave the host country after a final negative decision. 1 - Refugee The 1951 United Nations Convention Relating to the Status of Refugees defines a refugee as a person who owing to 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 nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. Based on this definition Human Rights Watch considers as a refugee someone with a well-founded fear of persecution on the basis of his or her race, religion, nationality, membership in a particular social group or political opinion, who is outside of his or her country of nationality and unable or unwilling to return. Refugees are forced from their countries by war, civil conflict, political strife or gross human rights abuses. The definition of a refugee enshrined in the EU legislation is also based on the Geneva Convention and its 1967 Protocol. A person who is granted status as a refugee by a Member State and admitted as such to the territory of that Member State is considered to have refugee status anguage=en&guilanguage=fr 2 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers 1

2 A person who is seeking to be recognized as a refugee is an asylum seeker. - Asylum seeker According to Art 2 c) of the Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, an asylum seeker is a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken. The asylum seeker is waiting for the authorities to determine whether or net he or she will be recognised as a refugee or given another form of protection. This same directive defines an application for asylum as a request for international protection from a Member State. B) The European Policy a. The international background (The 1951 Geneva Convention and its 1967 Protocol) As a reaction to the migrant and refugee flows of the second world war and with regard to the Universal Declaration of Human Rights of 1948 based on the principle that every human being shall enjoy fundamental rights and freedoms without discrimination, the Geneva Convention on the status of refugees was elaborated and signed in 1951 under the auspices of the United Nations and entered into force in The Convention was supplemented by the 1967 New York Protocol. The fundamental idea is that a State has to take over the protection function over a person if the home State of this person is unable or unwilling to fulfil this function itself. The convention lays down at the international level the minimum standards for the treatment of refugees. It is based on one of the most fundamental principles of human rights law, namely the principle of non-discrimination. Another important principle enshrined in the convention is the principle of non-refoulement, which means that persons cannot be returned to their country of origin if it can be seriously believed that they will suffer persecution, torture, inhuman treatment or other serious human rights violations. It also puts emphasis on the humanitarian and social nature of the problem of the refugees. However the convention remains silent about asylum and asylum seekers. The Office of the UNHCR is supervising the application of the provisions enshrined in the Geneva Convention and Protocol. b. Background for the development of an EU common policy: a little history It can be said that the awareness of the necessity of an EU immigration and asylum policy was a recation to the refugee and migration flows during the Balkan crisis and the inability of European countries to handle them in a coordinated way. The Treaty of Amsterdam which came into force in 1999, marks the beginning of the process of harmonising the national asylum systems and constitutes the first stage of 2

3 the elaboration of an EU immigration and asylum system. Article 2 establishes that the purpose of the EU is to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration, and the prevention and combating of crime. The treaty created Community competences in the field of immigration and asylum (EC Treaty Title IV on Visas, asylum, immigration and other policies related to free movement of persons, first pillar) and allowed the development of binding EC instruments such as directives and regulations in this area. Article 63 EC Treaty sets the framework for the elaboration of EU minimum standards in the areas of asylum, refugees and immigration. Amongst others should be developed - criteria and mechanisms for determining which Member State is responsible for considering an application for asylum; - reception conditions for asylum seekers; - minimum standards for the qualification of refugees; - procedures for granting or withdrawing refugee status; - minimum standards for granting temporary protection to displaced persons and for persons who otherwise need international protection; - measures on illegal immigration and illegal residence. At the 1999 Tampere European Council the objectives for a Common European Asylum System were laid down. This common European asylum system shall be based on the 1951 Geneva Convention relating to the Status of Refugees, as supplemented by the 1967 New York Protocol. The EU has also the duty to comply with other relevant human rights instruments such as the European Convention on Human Rights and Fundamental Freedoms (1950). The Member States set out the four key areas for the development of a common policy on asylum and immigration, namely: partnership with the countries of origin; a common European asylum system; fair treatment of third country nationals; more efficient management of migration flows. A common European asylum system requests the alignment of the legislations of the Member States in this matter. Common rules for determining the State s responsibility for asylum applications, common minimum standards for reception and common rules for recognising refugee status shall be developed. 3 The EU aims to establish a comprehensive approach towards effective migration management. In this sense the Hague Programme adopted at the European Council of 4 and 5 November 2004, sets out ten priorities for the Union with a view to strengthening the area of freedom, security and justice in the next five years. It also 3 Bertozzi Stefano, Pastore Ferruccio, Towards a Common European Asylum Policy, European Policy Centre (EPC) Issue Paper No.49, October

4 sets new targets for cooperation on asylum and calling for a complete Common European Asylum System by Among the ten priorities figures: - Defining a balanced approach to migration - Setting up a common asylum procedure - Maximising the positive impact of immigration. c. the instruments developed for 5 - asylum policy Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a thirdcountry national [Official Journal L 50 of 25 February 2003] or Dublin Regulation. This Regulation lays down the rules which determine the country responsible for assessing an asylum application. The Regulation shall prevent asylum seekers to formulate multiple asylum applications in different countries. Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, [Official Journal L 31 of ]. The aim of the Directive is to ensure the asylum seekers a dignified standard of living with living conditions comparable in all Member States and so limit secondary movements. The Directive deals in particular with the issues of information, documentation, freedom of movement, healthcare, accommodation, schooling of minors, access to the labour market and to vocational training. In addition, special rules are laid down for persons with special needs, minors, unaccompanied children and victims of torture. (Denmark and Ireland have not taken part in the adoption of this directive and thus are not bound by it and do not have to apply it.) Council Directive 2004/83/EC of 29 April 2004 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 and the content of the protection granted. The aim of this Directive is to ensure that the Member States aplly common criteria to identify and qualify persons in need of international protection. The Directive also aims at according a minimum level of benefits and rights to these persons. Different forms of protection and status are foreseen in this Directive. One can be granted either refugee status or subsidiary protection. Subsidiary protection can be granted when the applicant does not fulfil the requirements for becoming a refugee, but still risks to suffer serious harm in his/her home country (because of civil war or 4 Bertozzi Stefano, Pastore Ferruccio, Towards a Common European Asylum Policy, European Policy Centre (EPC) Issue Paper No.49, October 2006, Introduction p.5. 5 Only the most pertinent instruments for the ICAASE study are listed in this section. 4

5 generalised violence) and thus needs international protection. Depending on the status the person benefits from different rights. However the Directive requires the Member States to guarantee certain minimum rights to the persons who qualify for refugee status or subsidiary protection status 6. (Denmark has not taken part in the adoption of this directive and thus is not bound by it and does not have to apply it.) Council Directive 2005/85/EC of 1 December 2005 on Minimum standards on procedures in Member States for granting and withdrawing refugee status. This Directive provides a minimum framework for Member States on common procedures for granting and withdrawing refugee status. Certain benefits and guarantees are also laid down such as the possibility of every applicant to have an effective access on procedures, the opportunity to refer to a legal adviser and interpreter, the right to an individual, objective and impartial examination of the asylum application (Art. 8(a)). The Directive also introduces the notion of safe countries of origin, which are countries presumed to be safe, with a stable human rights situation. Member States shall consider the asylum application from persons originating from so called safe countries of origin as unfounded, as far as there are no serious grounds submitted for considering the country not to be a safe country of origin. (Art.38) (Denmark has not taken part in the adoption of this directive and thus is not bound by it and does not have to apply it.) - immigration policy Concerning the immigration policy, many Council Resolutions and Regulations have been issued, communications from the Commission and programmes for integration have been developed. Also a number of Directives have been adopted in the last few years. The immigration policy concerns amongst others integration and illegal immigration and return. Concerning legal migration the mot interesting directive adopted is the Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [Official Journal L 251, 03/10/2003 p ]. The Directive contains dispositions on who can be considered as a family member and determines the conditions under which family reunification of third-country nationals is possible. Concerning integration, the Commission has issued a communication in September 2005 setting A Common Agenda for Integration - Framework for the Integration of Third-Country Nationals in the European Union (COM (2005) 389). Member States are encouraged to adopt national integration strategies. Concerning illegal immigration and return, the EU Council adopted in 2002 an Action Plan to combat illegal immigration. In this sense a proposl for a Directive 6 Subsidiary protection must not be confused with humanitarian protection. It is specifically mentioned in the Qualification Directice para (9) that Those third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of this Directive. 5

6 on common standards and procedures in Member States for returning illegally staying third-country nationals was adopted by the Commission in September This Directive contains common rules regulating voluntary as well as forced return of illegal residents in the Member States. C) Appreciation and Criticisms concerning the EU policy The idea of a common European asylum system based on the full respect of the 1951 Refugee Convention has been positively received by the UN High Commissioner for Refugees (UNHCR). 7 Despite good initiatives, the EU legislation developed in the area of asylum and immigration reveals some shortfalls and raises scepticism among refugee and immigration organisations. Indeed, the first period of the establishment of a Common EU Asylum Policy, the Tampere process ( ), was marked by a cascade of legislation partly of dubious quality and content. Both the European Parliament and the Commission have brought proceedings against Council measures arguing that they fail to meet the minimum requirements of the European Convention on Human Rights. According to the Immigration Law Practitioners Association (ILPA) 8, the EU is criticised that measures have been adopted in a spirit of exclusion and marginalisation of third country nationals. The rules on visas, limitations on the labour market, the fight against illegal immigration have made it increasingly difficult for asylum seekers to get access to protection in the EU. The access to an asylum procedure within the EU is limited. As a matter of fact the number of refugees and applications gradually decreased in the last few years, reflecting the restrictive policies of the States often inconsistent with their human rights commitments. A general criticism on the different EU directives is that the standards set are based on the lowest common denominator and that the language leaves much space for diverse interpretations. Concerning the Reception Directive Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers: The Reception Directive is an important instrument in as far as it lays down certain minimum obligations Member States must fulfil when receiving asylum seekers in order to ensure them a dignified standard of living 9. Among these obligations count the provision of information (Art. 5), documentation (Art. 6), education for minors (Art. 10), and material reception conditions as well as health care that ensure a 7 see, UNHCR Comments on the EC Directive 2004/83/EC OF 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who otherwise need International Protection and the Content of the Protection granted (January 2005) 8 Immigration Law Practitioners Association and The Standing Committee of Experts International Immigration, Refugee and Criminal Law, An Area of Freedom, Justice and Security Five Years On Immigration and Asylum for the Next Five Years, Utrecht and London, June Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L31/18, , paragraph (7). 6

7 standard of living adequate for the health of applicants and capable of ensuring their subsistence (Art.13). The provisions of the Directive however leave a wide margin of appreciation and interpretation to the Member States which leads to diverging implementation and practices in the different Member States. 10 As an eaxmple, Art.3 (4) leaves it to the discretion of the Member States to apply the Directive to third country nationals applying not for Convention status but for subsidiary forms of protection. The request of the ECRE would be that the Directive is applied to all applicants seeking some form of international protection. Another criticism forwarded by the ECRE concerns the schooling and education of minors where it is also left at the discretion of the Member States whether they provide education to children in accommodation centres and whether they postpone access to education up to one year. 11 Criticised is also the important freedom of action accorded to the Member States in the domain of access to the labour market for applicants of asylum. The ECRE is of the opinion that asylum seekers should not be excluded from the labour market for more than six months after they have lodged an application, to prevent exclusion from the host society, promote self-sufficiency, and facilitate integration or re-integration upon return. 12 Concerning health care, Art.15 (1) only asks Member States to guarantee access to emergency health care, essential treatment of illness and care for applicants with special needs. However, asylum seekers often have complex health needs and would need access to general health care. According to the ECRE mental and psychological health care should also be made available to asylum seekers. 13 Concerning the Qualification Directive Council Directive 2004/83/EC of 29 April 2004 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 and the content of the protection granted. Amnesty International welcomes the fact that the Qualification Directive provides for the protection of persons who do not qualify for refugee protection under the Geneva Convention but who nevertheless are in the need for international protection. 14 The Directive provides for minimum rights and benefits to be enjoyed by persons qualifying for refugee or subsidiary protection status. 15 However persons with subsidiary protection status are accorded a lower level of rights than persons with refugee status. E.g. Member States can reduce the benefits for 10 See ECRE, Broken Promises Forgotten Principles, An ECRE Evaluation of the Development of EU Minimum Standards for Refugee Protection, Tampere 1999 Brussels see ECRE, Broken Promises Forgotten Principles, An ECRE Evaluation of the Development of EU Minimum Standards for Refugee Protection, Tampere 1999 Brussels 2004, p ECRE, Broken Promises Forgotten Principles, An ECRE Evaluation of the Development of EU Minimum Standards for Refugee Protection, Tampere 1999 Brussels 2004, p see ECRE, Broken Promises Forgotten Principles, An ECRE Evaluation of the Development of EU Minimum Standards for Refugee Protection, Tampere 1999 Brussels 2004, p Amnesty International The European Union - Now More Free, Secure and Just? Amnesty International's Human Rights Assessment of the Tampere Agenda, Brussels, 2 June European Commission, Justice and Home Affairs, Freedom Security and Justice, Refugee Subsidiary Protection, 7

8 persons with subsidiary protection to core benefits (Art.26 & 28) 16, whreas persons enjoying refugee status are to be treated as EU nationals concerning social assistance and health care. The access to the labour market can also be very much restricted for beneficiaries of subsidiary protection. Persons with subsidiary protection can even be excluded from some rights such as the right to family reunification. The ECRE criticises this differentiation operated by EU law between persons all in need of international protection. ECRE as well as UNHCR are of the opinion that persons with subsidiary protection should be granted the same rights than those having refugee status. 17 In general UNHCR deplores that the Directive is not fully in line with the 1951 Geneva Convention and the language seems sometimes unclear and too vague leaving a wide range of discretion to the Member States in their implementation and application. E.g. Art 23(4) leaves it to the national law of Member States to decide when to refuse or withdraw benefits. 18 Concerning the Procedures Directive Council Directive 2005/85/EC of 1 December 2005 on Minimum standards on procedures in Member States for granting and withdrawing refugee status : UNHCR as well as ILPA 19 and Amnesty International 20 are very much concerned that the implementation of this Directive will lead to human rights violations. ECRE is of the opinion that the Directive allows too many restrictions, exemptions and derogations so that it does not guarantee a fair and efficient procedure for all asylum seekers. As ECRE stated, there are five minimum guarantees from which there should never be derogation (even in so-called accelerated procedures): access to free legal advice, access to UNHCR/NGOs, a qualified and impartial interpreter, a personal interview and a suspensive right of appeal. 21 However these rights are not entirely guaranteed by the Directive, e.g., where it is not reasonably practicable a personal interview can be omitted (Art.12 (3)). The right to an interpreter is limited which can have consequences on the right to be informed (Art.10). The suspensive effect of the appeal 16 Core benefits are defined as income support, illness, pregnancy and parental assistance, Qualification Directive, Article ECRE, Broken Promises Forgotten Principles, An ECRE Evaluation of the Development of EU Minimum Standards for Refugee Protection, Tampere 1999 Brussels 2004, and UNHCR Comments on the EC Directive 2004/83/EC OF 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who otherwise need International Protection and the Content of the Protection granted (January 2005) 18 UNHCR Comments on the EC Directive 2004/83/EC OF 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who otherwise need International Protection and the Content of the Protection granted (January 2005) 19 see ILPA Analysis and Critique of Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, July 2004, and ILPA Response to the Hague Programme: EU Immigration and Asylum Law and Policy, January Amnesty International, The European Union - Now More Free, Secure and Just? Amnesty International's Human Rights Assessment of the Tampere Agenda, Brussels 2 June in ILPA Response to the Hague Programme: EU Immigration and Asylum Law and Policy, January 2005 and in ILPA Analysis and Critique of Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (July 2004) 8

9 is not foreseen either. Thus asylum seekers can be expelled while the appeal is pending. 22 Another concern is directed to safe countries provisions. This concept can lead to discriminations among refugees. According to ECRE it is absurd to consider that a country is safe for all persons. The situation has to be examined on a case by case basis, during a regular procedure, taking into account the circumstances of the individual s claim. 23 The issue of detention is very poorly regulated, leaving the Member States much discretion in that matter (Art.18). Concerning the immigration policy and more specifically the policy on illegal immigration: Today, the EU countries not only have to take care of asylum seekers, but more and more they face illegal immigration (e.g. the flow of illegal migrants coming from Africa and landing on the Canary islands, Lampedusa ). One explanation why the number of illegal immigrants is so important is that the asylum seekers have no possibility to get visas or travel documentation in order to enter the EU regularly. 24 The term illegal immigration or illegal immigrant is associated with negative connotations placing them almost at the same level as criminals. Undocumented migrants are among the most socially excluded in Europe today. Some countries deny access to social services (health care) to undocumented migrants. In many countries undocumented migrants do not have the minimum protection of their basic social rights and cannot get access to public services. The violation of undocumented migrants rights and the lack of salaries should be considered as human rights violations. These violations cannot be justified by the irregular legal status of these people. Fundamental rights and principles must be guaranteed to all persons living on EU territory. 25 The EU is violently criticised that it focuses too much on the fight against illegal immigration instead of adapting laws in order to regulate the status of these persons 26 and improving refugee protection Concerning Integration: 22 see UNCHR Press Release UNHCR regrets missed opportunity to adopt high EU asylum standards 30 April see ECRE, Broken Promises Forgotten Principles, An ECRE Evaluation of the Development of EU Minimum Standards for Refugee Protection, Tampere 1999 Brussels 2004, p see OXFAM, Foreign Territory The Internationalisation of of EU Asylum Policy, OXFAM GB see ILPA Response to the Hague Programme: EU Immigration and Asylum Law and Policy, January see ILPA Response to the Hague Programme: EU Immigration and Asylum Law and Policy, January see OXFAM, Foreign Territory The Internationalisation of of EU Asylum Policy, OXFAM GB see ECRE, Broken Promises Forgotten Principles, An ECRE Evaluation of the Development of EU Minimum Standards for Rfeugee Protection, Tampere 1999 Brussels 2004, p.4. 9

10 Restrictions on the access to the labour market and to education hinder integration. Denying access to employment risks to push refugees into illegal work. 29 They alsobecome dependent on public and social assistance. Exclusion from economic activity Concerning beneficiaries of subsidiary protection, Member States are not even obliged to offer them integration programmes (Art.33 Qualification Directive). 30 The Migrtion Policy Group brought it to the point when stating that the EU should recognise the inherent contradiction in wishing on the one hand for greater social integration of refugees and migrants, while on the other hand pursuing deterrent tactics during the asylum determination period which impose unnecessary hardships upon the same people. 31 Concluding Remarks The European Council of Refugees and Exiles ECRE called upon Member States not to lower their existing standards when implementing the EU legislation. 32 Indeed the standards laid down in the EU Directives are minimum standards and Member States may always provide for more favourable provisions. 33 However the trend goes on lowering the standards and restricting the policies for asylum seekers and refugees. Although the aim of a Common European Asylum System is to define common rules and procedures applicable in all EU Member States, in practice there are still differences in the standard of protection. Much work remains to be done to create a common asylum policy and system capable of offering humanitarian protection and guaranteeing asylum seekers a life in dignity. Effective implementation and political commitment will be essential to ensure such a system. Anne Mertens see Migration Policy Group, Guarding Standards Shaping the Agenda, Updated Version, Brussels, May ECRE, Broken Promises Forgotten Principles, An ECRE Evaluation of the Development of EU Minimum Standards for Refugee Protection, Tampere 1999 Brussels Migration Policy Group, Guarding Standards Shaping the Agenda, Updated Version, Brussels, May ECRE, Broken Promises Forgotten Principles, An ECRE Evaluation of the Development of EU Minimum Standards for Refugee Protection, Tampere 1999 Brussels see UNHCR Comments on the EC Directive 2004/83/EC OF 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who otherwise need International Protection and the Content of the Protection granted, January

11 This report was produced by a contractor for Health & Consumer Protection Directorate General and represents the views of the contractor or author. These views have not been adopted or in any way approved by the Commission and do not necessarily represent the view of the Commission or the Directorate General for Health and Consumer Protection. The European Commission does not guarantee the accuracy of the data included in this study, nor does it accept responsibility for any use made thereof.