IAS response to the Commission s Communication on results of the Tampere programme and future guidelines

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1 IMMIGRATION ADVISORY SERVICE Community Legal Advice & Representation for Immigrants & Asylum Seekers Head Office, County House, 190 Great Dover Street, London SE1 4YB Tel: [020] Fax: [020] Direct From: the Chief Executive IAS response to the Commission s Communication on results of the Tampere programme and future guidelines IAS The Immigration Advisory Service is the largest charity in the European Union with over thirty years' experience and more than 300 staff members which gives free legal advice and representation to eligible immigrants and asylum seekers. It has 16 branches located throughout the UK and one in Bangladesh and participates in the Community Legal Service scheme. It is publicly funded through grant and the Legal Services Commission and quality is assured through the Specialist Quality Mark and compliance with the requirements of the Office of the Immigration Services Commissioner. All its caseworkers are professionals specialising in immigration, nationality and asylum. It is consulted regularly by government and other agencies, the European and UK Parliaments and comments on European developments on immigration and asylum. It is a Forum member of eu-politix. See the website ( under News Publications and Press Office for all IAS previous responses to consultation papers, briefings and proposed amendments to legislation. Contact the Chief Executive Keith Best (keith.best@iasuk.org) for any further material or information. Summary 1. IAS wishes to see positive progress as soon as possible on a Common European Asylum Policy (as well as a common immigration policy) in the interests of simplification and clarification for those wishing to access such a system as well as fairness between member states in sharing both benefits and burdens that come from migration. A common policy in both immigration and asylum should be based on optimum rather than minimum standards. IAS supports the concept of a comprehensive approach to asylum and migration. There should be a common European Documentation Centre. 2. An important aspect of this will be the position of third country nationals who are given permission to remain within the European Union and their movement between member states for the purposes of ensuring proper integration and their possible contribution to the economy and society of the European Union. Migrant workers who fail to find employment in one member state should be able to move to another state where their skills are in demand rather than member states following their own policies based only on national interest. 3. Migration should be seen as positive but forced migration should be avoided where possible by concerted action to reduce persecution and other factors that lead to forced migration. Care should be taken to ensure that the most vulnerable and those in greatest need of protection are given it. Protection provided closer to areas of persecution thereby enabling greater access to asylum seekers without having to rely on smugglers and Offices at Birmingham, Cardiff, Derby, Glasgow, Hounslow (Grove Road + Ebury Business Centre), Leeds, Leicester, Liverpool, London (Borough SE1), Manchester, Middlesbrough, Norwich, Oakington, Peterborough and Sylhet (Bangladesh)

2 financial resources available to only a few is welcome so long as it is genuine protection and those seeking it are resettled swiftly. Refugee camps in which residents remain for many years are unacceptable as a solution to such problems. There are inherent problems with the approach to Regional Protection Areas and Protected Entry Procedures. 4. Asylum seekers who fail to establish a need for protection under a disinterested system subject to an independent right of appeal and those who are no longer in need of protection should return to their countries of origin subject to the provisions of the European Convention on Human Rights. In order for this to become permanent there must be encouragement rather than coercion wherever possible, funding to enable persons to reestablish themselves in their countries of origin and effective monitoring to ensure that they re-integrate safely into their community and that the funding is used appropriately. The conclusion of effective readmission agreements between the European Union and countries which generate large numbers of asylum seekers are critical but must be accompanied by sufficient safeguards for those who are returned so that they will not be persecuted or returned in breach of the European Convention on Human Rights. 5. Persons seeking to access asylum and immigration procedures within the European Union should be given equal access to independent, competent legal advice and representation, free for those of inadequate means, and the Commission should take steps to ensure that this is done possibly through an European Union wide agency making such provision and regulating the quality of advice and representation. IAS is prepared to assist in this. Submission 1. IAS welcomes the provisions in the new Constitutional Treaty which will make it easier to meet the chief expectations and to raise the level of demands made as regards transparency and democratic answerability, especially with the extension of the European Parliament s role in the co-decision process. 2. In its Communication Improving Access to Durable Solutions paragraph 15 the Commission refers to the first objective of Thessaloniki Conclusion 26 how to arrive at more orderly and managed entry in the EU. There are ethical and legal questions of processing centres outside or inside the European Union. Where this includes deterrence of unwanted migration it is clear that such measures impact on genuine refugees as well as economic migrants as the UK example shows: acceptance rates have not increased despite a reduction in numbers which indicates that there has not been an increase in genuine asylum seekers at the expense of those who do not qualify for protection. This arguably avoids state responsibilities under the various International Conventions. It also potentially undermines 'effective protection' if set up in countries where there are serious human rights abuses. IAS notes the the new Commissioner, Rocco Buttiglione from Italy, for the renamed Directorate- General for Justice, Freedom and Security is reported as favouring a refugee detention centre in north Africa to hold and "process" asylum-seekers. In an interview with Deutschlandfunk he said it was a "good idea" to create processing centres in countries like Tunisia, originally promulgated by the UK. The idea will be discussed at yet another meeting of the "G5" ( big five ) EU states (Germany, Spain, Italy, France and the UK) in October in Florence. Both Italy and Germany are now working on a joint plan to look at the overall EU fight against illegal immigration for this meeting. 3. Such centres, if they were to process claims that might otherwise be dealt with within Europe, could be in breach of the EU states international obligation under the Refugee

3 Convention. For them to be acceptable there would have to be [1] adequate protection [2] access to independent competent legal advice and a transparent appeals system [3] welfare provision during the process of the same kind as citizens of the EU enjoy [4] guaranteed resettlement in European Union states for those granted refugee status or temporary protection until such time as it is safe to return them to their country of origin and [5] a maximum time in which asylum seekers should remain there. All this could prove more expensive than dealing with claims within Europe and be self-defeating. The European Parliament needs to approve the new Commissioners after hearings in September: MEPs must ask searching questions and obtain commitments from them. 4. There are inherent dangers in setting up such centres. They could become permanent camps for many asylum seekers. They could cause resentment among resident populations if the conditions are more favourable than in the host country and could act as a magnet. Alternatively, they could fail to offer proper protection and would attract few asylum seekers. 5. IAS takes the view that Regional Protection Areas could never provide an acceptable substitute to international protection away from the site of persecution. A victim of persecution or an economic migrant who is determined to reach Europe or the UK is unlikely to be content to remain in an RPA near their home area, where they are unable to live a normal life, unable to find employment, would not have access to adequate health and education facilities and where there is no long-term prospect of settlement or establishing a new life. 6. Additionally, there are many instances in existing UNHCR camps where protection has been blatantly flouted. For example, the Israeli government has successfully targeted Palestinians refugees in Lebanon. Following the Rwandan genocide, international aid agencies found that they had housed both persecuted and persecutors side by side in the camps. In Kenya there are major problems with Somali gangs continuing to persecute Somalis who have fled. Probably the worst example are the Sierra Leoneon refugees who fled to Guinea only to face marauding raids from their persecutors. 7. IAS understands the RPAs to be large refugee camps. At the ECRE biennial general meeting held at the World Council of Churches, Geneva, on Saturday 27 September 2003 HE Mrs Amina Chawahir Mohamed, the Ambassador of Kenya to the United Nations in Geneva, gave a chilling account of the situation in the Kenyan camps. She said that presently there are between 220,000 and 230,000 refugees registered in Kenya. 16,000 of them are without shelter and food rations are at the lowest ever level. Not even the basics are being provided to the refugees. The camps have been badly affected by the rains. Refugees have to look for firewood in what are arid areas. There is no schooling and inadequate healthcare and the refugees are competing with local residents. She said that her country could think about integration only if there are massive resources and skills training available to encourage local residents to accept refugees. Without such resources for the existing population, integration remains a dream. The proposals are tantamount to burden shifting and not burden sharing. She is concerned that the countries that have been mentioned as possible Regional Protection Areas are all in Africa, yet there are suspicions between African countries and there is no unified view. There is a need to encourage voluntary repatriation of refugees so that people can go back bearing in mind that they want to go back but they feel that they are being forced to remain in the camps. She emphasised the need for resources for voluntary repatriation.

4 8. There is a considerable risk that the burden will be shifted rather than shared. As discussed above, RPAs will have an enormous and very likely deleterious impact on their local economy, culture and population. In the opinion of IAS, the exercise is very clearly intended to shift the burden away from Europe and for the problem of mass migration to be dealt with at what is considered to be a safe distance. There is a danger that such an exercise could worsen the global north/south divide, breed resentment and that this could have security consequences. 9. Protected Entry Procedures in principle allow asylum seekers to travel legally to access potential protection, reduce reliance on smugglers and the other dangers associated with that but can deny entry and block access to a fair determination procedure. The other negative factors as identified by the Commission are: extent of resources required; direct contact with decision makers and lack of access to legal assistance (which is a serious concern to IAS). 10. IAS recognises the Commission s view (paragraph 17) that, in general, the legal, orderly and managed entry to the EU would allow the member states to anticipate the arrival of the persons determined to be in need of international protection and that this advance notice could bring a number of advantages in terms of planning. Clearly, the EU must maintain the capacity to deal with the influx or processing of large numbers of asylum seekers in the event of situations such as Kosovo, Rwanda and others which show how rapidly such events can overtake systems. There must be better early warning of the development of such situations and contingency planning for safe areas of containment of asylum seekers if Protected Entry Procedures are to have any chance of success. 11. IAS shares the view (paragraph 25) that the basic premises of an EU Resettlement Scheme should strongly emphasise that resettlement was complementary and without prejudice to member states obligations to determine asylum claims in fair procedures and to provide protection in their territories in accordance with international law. 12. On refugee resettlement transfer of refugees from first to second host country targets (paragraph 28) IAS notes that these will initially be non-binding according to the Commission. If left at state discretion targets are likely not to be met. The number should be fixed otherwise there is likely to be no impetus to achieve the number. NGOs and UNHCR should develop and implement the numbers to be resettled by each state. 13. With regard to the integrated approach to asylum-decision making and resettlement this must always be in accordance with the human rights guaranteed under international law. There should be a consistent high level of decision-making, increased training, higher standard of qualifications of decision-makers, etc 14. All of the points set out in the EUROPA press-release under 'results of the Tampere programme' are important, especially the protection of fundamental rights in relation to the common procedure on asylum. 15. A Common European Asylum System should encompass a European Documentation Centre giving information on countries of origin of asylum seekers on which all decisions by member states should be made. Despite a new common definition the present system leads to member states applying their own criteria according to their information on countries of origin which will make some states more or less attractive to particular nationalities. A common source of information would lead to more effective burden sharing. IAS has recently issued an analysis of the Home Office Country Information and Policy Unit (CIPU) country

5 reports. These are used by Home Office caseworkers and asylum adjudicators to make decisions on claims but our detailed examination and analysis concluded that they do not lead to accurate decisions. 16. A Common European Asylum System should be monitored by the Commission and the Parliament for its effectiveness. This would look at acceptance rates between member states for particular nationalities as well as percentage success on appeals against initial refusal. The current rate of success on appeals in the UK has led the UN High Commissioner for Refugees (Mr Ruud Lubbers) to express concern at the validity of initial decisions. Levels of support as well as the practice of allowing asylum seekers to work (to be covered by the new legislation as from 2005) should also be monitored. 17. There is a link between asylum and immigration policy in so far as asylum may be followed by those who do not require protection but who wish to migrate for economic reasons. It is important to bear in mind that persecution may be economic in nature and that suffering persecution and desire for a better life are far from mutually exclusive. It is also likely that the knowledge that it is difficult to remove many failed asylum seekers is an incentive to claim asylum if persons wish to remain in the UK, although asylum seekers are unable to work lawfully. IAS has in the past advocated the opening up of legal forms of migration in order to offer an alternative to the asylum system for potential migrants who possess skills, initiative and the desire to work. The Government has taken positive steps in this direction, most notably though the sectors-based work permit scheme for the food manufacturing, hotel and catering trades, relaxation of the terms of the Commonwealth Working Holidaymakers scheme, the review of the Seasonal Agricultural Workers scheme. Other than through the Working Holiday Maker scheme, however, those seeking work cannot apply individually, they must come through an employer. IAS has urged for the introduction of a scheme allowing individuals to come to the UK as provisional work permit holders in search of work and would wish to see a common system throughout the European Union. 18. It would not be acceptable to (forcibly) transfer an asylum applicant to a centre in another country for processing. The obligation under the Refugee Convention is that a signatory state should process asylum claims of those who are within its jurisdiction. Any removal as suggested would be in breach of this obligation. There is power to remove only those in respect of whom a member state claims it has no obligation under the Convention. Moreover, if the country to which the applicant were to be removed were outside the application of ECHR then this would in many cases represent a breach of the member state s obligations under ECHR. 19. IAS shares the Commission s view (paragraph 47) that in the short term, action with a view to enhancing the protection capacity of third countries so that the need for secondary movements may be reduced, could be taken under the new AENEAS Programme for financial and technical assistance to third countries in the area of migration and asylum. IAS strongly urges that this should include access to independent, competent legal advice (as stated above). Keith Best Chief Executive 31 August 2004