The legal regulations behind refugeeism-related migration

Transcription

1 Stadniczenko Stanistaw Leszek ISSN ,,Pedagogika 2004"; ISBN ,,Pedagogika 2004" The legal regulations behind refugeeism-related migration In the wake of Poland's joining the European Union the problem of migration must be viewed from the perspective of the enlarged Union, bordering on new neighbors. At present Poland is in the group of states where the percentage of illegal immigrants is the smallest. In the other member-countries of the EU the problem of illegally staying foreigners is much more severe. In 2003 there were 6,903 applications to grant the status of refugee in Poland, submitted at the Department of Repatriation and Foreigners. In the EU, it can be noticed, for some time now there has been implemented a stricter and stricter policy towards foreigners' staying on the territory of the member-countries. This is connected, primarily, with the question of internal safety of particular states and also with the economic aspect. Refugees and migrants often evoke contrasting reactions ranging from fear, uncertainty, threat to identity, on the one hand, to people's solidarity, sympathy and hopes to enrich the national culture and economy, on the other one. There are also observed reactions against racism, xenophobia, applying stereotypes and discrimination. On the 1 st May, 2004, Poland and Lithuania became part of the EU, which entails disappearance of problems connected with traveling, transferring goods, choosing one's place of abode. However, there will remain the question of the Polish and Lithuanian citizenship since the internal law in Lithuania does not include the status of a double citizenship. Everybody will become a citizen of the United Europe, though. The state borders, formerly separating the two independent states, will function as external borders of the Union. The problem of standards concerning going to and staying on the territory of another membercountry is regulated by the agreement drawn in Schengen in June 1985, called "Convention of Schengen I" and the agreement of June 1990 on realization of the previous agreement of 1985, called "Convention of Schengen 11" or Execution Convention. The idea of Schengen assumes increasing control on the internal borders together with a simultaneous application of clear and uniform regime of crossing the external ones. It follows from the Conventions that checking in citizens from countries outside the EU should be carried out according to the regulations accepted by the internal law of the given host country. However, during the control interests and safety of the remaining states - parties of Schengen Conventions - must be taken into account. There was established the System of Schengen Information, whose central unit is placed in Strasbourg and also includes national data bases of the individual countries. The latter serve the purpose of exchange of the applied information related to foreigners. Among all the foreigners who decide to settle down abroad, immigrants and refugees find themselves in a special legal situation: a refugee - a foreigner who reaches the EU crossing the Ukrainian, Belorussian or Russian borders will be able to apply for the status of refugee solely in Poland, Lithuania, Latvia or Estonia. Thus. the application submitted in other member-countries of the EU will not be accepted for consideration, and the applicant will be sent back to the country whose border helshe crossed. Therefore, it is a matter of prior importance to secure effective realization of instruments of human rights, international humanitarian rights and refugee's rights, as well as to limit the range of enforced migration.

2 THE LEGAL REGULATIONS BEHIND REFUGEEISM-RELATED MIGRATION It is vital, then, that both in social policy and education there should appear strategies to strengthen intercultural understanding of ethnic problems, dialogue, teaching people to be open to and tolerant of newcomers. The life of immigrants and refugees very often depends on people's good will, gestures made in different places at different moments. Certainly, the most decisive voice is that of public administration institutions - central or local governments, since migrants and refugees need help in having their needs satisfied both on the humanitarian and legal planes. Most religions of the world also support this idea strongly: the person in need - a newcomer, migrant, refugee, foreigner - should be helped. lnternational obligation related to the legal situation of migrants and refugees The factors shaping the policy towards migrants and refugees include standards contained in legal acts worked out by international community. Accordingly, the basic instruments for extending protection over individuals belonging to this category include the following: - Conventions on migration for employment purpose of 1949, - Geneva Conventions (four of them of 1949) on protection of civilians during a war and two Complementary Protocols of 1977 (referring to protection of victims of international military conflicts and non-international military conflicts), - Geneva Convention on the status of refugees of with the New York Protocol of 1967 and the obligations resulting from acts on protection of human rights (Common Declaration of Human Rights of 1948, International Treaty on Economic, Social and Cultural Rights of 1966), - International Convention on removing all forms of racial discrimination of 1965, - Convention referring to migration in improper conditions and supporting equality of chances and treatment of migrating workers of 1975, - Convention referring to removing all forms of discrimination of women of 1979, - Convention on prohibition of applying tortures or other cruel, inhuman or disgracing treatment or punishment of 1984, - Convention on the rights of children of 1989, - Convention on protection of rights of all migrating workers and their families and the Treaty against smuggling of people of 1999, - Convention against international organized crime of 2000 and the additional Protocol against smuggling of people on land, sea and by air. The Council of Europe and organs of European Communities, European Community and European Tribunal of Human Rights. as well as European Tribunal of Justice also exert a considerable influence on shaping the legal standards in Europe. The more significant acts worked out and implemented by these institutions include as follows: - European Convention on Protection of Human Rights and Foundations of Freedom of 1950, - European Convention on Extradition of 1957, - European Social Charter of 196 1, - Treaty establishing the European Commonwealth of 1978, - Maastricht Treaty on the European Union of 1991, implemented in 1993, - Amsterdam Treaty of 1997, implemented in 1999, - The Commonwealth Charter of Fundamental Social Rights of Workers of 1989, - Nice Charter of Basic Rights in the EU of At the end of the 70s. respective ministers of the member-countries of European Communities undertook joint actions aimed at restricting and persecuting terrorism and organized crime. This period can be regarded as the beginning of cooperation within the scope of interior affairs and the system of justice. From the mid-80s the cooperation included also the area of asylunl- and immigration-related

3 STADNICZENKO STANlStAW LESZEK policies, in this way attempting to form, within the EU, a territory without internal borders, which would lead to institutionalization of the third pillar. Another stage of the cooperation between the member-countries in the field pertaining to immigration, police and justice are the historic international agreements signed in Schengen (one of the 14th June, 19851, delineating the program and the other of the 19th June, 19902, providing instruments of execution to be applied in concrete actions by the interested sides in cases pertaining to problems of immigration, asylum, cooperation of courts and political collaboration). It should be underlined here that partial realization of the decisions of Schengen found its reflection in the Treaty of Maastricht and the successive Union-approved instruments. Undoubtedly, another crucial act is Dublin Convention of 1990 on considering applications for asylum, which established the rule of one state to grant agreement to enter the EU, that is the state bordering externally with that from whose territory the individual managed to enter the EU. Furthermore, the Extradition Conventions of the 10th March, 1995 and 27th September, 1996 must be included here, too, as it aimed at accelerating and simplifying extradition procedures, as well as Convention on Europol of the 26th July, 1995, which founds an international police unit with the aim to prosecute illegal immigration, drug trafficking, children's pornography, and the like (Amsterdam Treaty included the Agreements of Schengen into the acguis issued on their basis to the European Union Law - Protocol B. 2 to Amsterdam Treaty, and also the Decision issued by the Council of 20 May,1999). Attention can be drawn to the interpretation of the term "area of freedom, safety and justice" offered by the Council of Europe at the meeting at Tempere during October, The meeting at Tempere determined the priorities of activities undertaken by the EU for the period following the implementation of Amsterdam Treaty as regards the areas of asylum and migration policy. The major stress was laid on further restriction of asylum-granting procedures and intensifying the prosecution of illegal migration. The member-states were called to intensify their endeavors and strengthen collaboration regarding the above-mentioned matters, to support the countries from which refugees come as far as their living conditions and democratic changes are concerned. Uniform principles of granting the status of refugee were advised to accept by all. Also the member-states were put under obligation to popularize the catalogue of rights granted to legal migrants, which are based on the ones granted to the citizens of the EU. Similarly, the European Union Treaty introduced changes in the cooperation in the field of interior affairs and administration of justice by listing domains for cooperation in Art. K.l: 1-9 (at present title V1 Art ). The most important areas, forms and principles of cooperation include regulations concerning crossing the external EU borders, means of controlling the borders, asylum-related immigration policy and policy towards third countries (conditions of moving within the member-countries, conditions of staying on their territories, access to employment, prevention of illegal immigration and illegal employment), prosecution of international crime, fighting drug abuse. cooperation of courts in civil and criminal cases, collaboration in the area of customs- and police-related matters, especially as regards prosecution of terrorism, narcotics smuggling, exchange of information through Europol. Here, the specific means is again offered by international conventions applied in cases being subject to the cooperation. The legal instruments introduced into the EU Law by Amsterdam Treaty are accompanied by decisions and framework resolutions, while special legal solut~ons. which complement the structure of pillar 111, are invested with bridging provision and general provision. The regulations which concern fieedom of workers' movement were included both in the primary and secondary legal regulations of the Commonwealth. The most significant rules dealing with the fieedom of moving were contained in art (formerly art ) of the EU Treaty, other professionally active persons, that is persons &g economic activity (art. 4348), and persons rendering services (art. 4%55). The regulations ofthe EU Treaty that deal with citizenship in the EU (art ). and, in particular-art 18 with reference to free movement, are of primary importance among them. Another equally important set of

4 THE LEGAL REGULATIONS BEHIND REFUGEEISM-RELATED MIGRATION regulations includes title IV, introduced by Amsterdam Treaty, in which visegranting policy, asylum and migration policy and other related matters (including ones dealing with the freedom of movement of persons - art ) are subject to regulation. Regulations of the secondary law do not extend the rights of migrating workers but make them more precise (Instructions of the Council No lEWG of 1964 replaced by the Instructions No. 75/35/EWG of 1975). The Order No lEWG of 1992 regulated, in a complex manner, the legal situation of migrating workers and their families. The Instructions of the Council No lEWG of 1968 settled the question of formalities connected with crossing borders, notifying of the stay in the host country or taking employment. The Instructions IUo EWG of introduced, on the level of the Commonwealth, the principles of coordination between the state systems of social welfare with reference to people benefiting from the right of migration. The Order No lEWG of 1988 introduced recognition of qualifications obtained in other member-countries. The Order of European Parliament and the Council No llWE of 1966 concerning delegating employees within the system of rendering services, while the Order of the Council No lWE of 1998 introduced the principles of protection of pension rights as regards the pillars of pension insurance, in this way supplementing the Instructions No The Order of Council of Europe No lEWG of 1990 introduced the right of abode in another member-country (other than one's own mother country) with reference to all the citizens of the EU who can not bear the costs of stay themselves. The Order of the Council No. 93/96 EWG of 1993 concerned the rights of students, which resulted from the Commonwealth law. Then, the Order of the Council No lWE referring to execution of the right to vote in elections to European Parliament, while the Order of the Council No lWE of 1994 introduced regulations concerning the right to vote and candidature in local elections for citizens of the EU residing in a member-country but not being citizens of this state. A characteristic feature of the Commonwealth law is the direct effect of its norms: rights of individuals resulting from the Commonwealth law are subject to protection in the other member-states. The possibility of the direct effect was formulated by the European Tribunal of Justice of 1963 and in subsequent years while issuing rulings in different cases. The EU Charter of Fundamental Rights, which was accepted in Nice in 2000, deserves paying more attention to. The adopted catalog of rights consists of six chapters: dignity, freedom, equality, solidarity, citizenship, and justice. It confirms the rights and freedoms of the individual - a human being, which were guaranteed in acts on human rights. By establishing the citizenship of the Union and creating the EU space of freedom, safety and justice, it places man in the center of its activities. By aiming at supporting of balanced development, it secures a free transfer of persons, property, services and capital, as well as the freedom of settling down. The activity was based on the principles of democracy and law, with simultaneous respect towards common values of human dignity, freedom, equality and solidarity. The right to asylum (art. ls), as well as the guarantees extended towards exiled foreigners (art. 19), contained in the Charter, are of considerable significance as regards protection of rights of refugees on the level of the Commonwealth law. The Charter, which is to be a component of the Constitution of the EU, will become an integral part of the Commonwealth law and not only an obligation of political character. The above-mentioned universal and regional regulations applicable all over the EU are accompanied by all kinds of international declarations, indications, instructions such as, among others: - conclusions of the Executive Committee of the High Commissioner of the United Nations in charge of Refugees' Matters (UNHCR), - standards of the UN concerning Minimal Principles of Detention, - constitution of the International Organization for Migration Matters (IOM) of 1987 and International Organization for Refugees' Matters (IRO),

5 STADN ICZENKO STANISLAW LESZEK - Vienna Declaration accepted in 1993 by the World Conference of Human Rights, - instructions of UNHCR concerning the policy and procedures applied towards children without care, who apply for the status of refugee of 1997, - standing of the European Council for Refugees and Emigrants concerning refugees' children of 1996, - Declaration of proper practice (Program for children with no parental care in Europe) of 1999, - The Hague Declaration referring to future of refugees-related policy and migration policy of 2002 (which indicates possibilities of meeting the challenge of the future and calling the international community to creatively respond to these challenges by implementing the norms of human rights. An analysis of legal acts allows concluding that there exist norms of human rights, international humanitarian law, rights of refugees and foreigners in order to protect migrants, refugees and asylum holders and decrease the scope of incidence of such cases. It should be a matter of principal importance to secure effective realization of the rights. In each state there ought to be undertaken actions aiming at shaping public awareness and education so as to assist individual communities and social groups in dealing with refugees, as well as migrating persons themselves through promoting culture of mutual respect and unity, removing fear, stereotypes, xenophobia and racism and strengthening integration instead. This requires possessing a well-prepared, educated and organized personnel. The knowledge which is indispensable to conduct such an activity needs to be interdisciplinary, comprising law, pedagogy, psychology, sociology, social matters, philology and the like. The basic element of an effective policy of including such persons into society is engaging local community and respecting mutual needs, especially non-governmental organizations (NGOs) and those in the economic sector. It must be realized that solving problems of refugees, immigrants and asylum holders will be definitely aided by investment into peace, stabilization and safety. Solutions in the Polish legal order The legal solutions in Poland are conditioned by both international obligations and regulations of the internal state law. In the colloquial language the term "migration" (Latin migratio meaning displacement, peregrination) stands for a person's moving within the same country or from one country to another, whereas "refugee" is understood as a person who left hislher own country for political, economic or religious reasons. The term "refugee" in the everyday and the broadest meaning, as B. Wierzbicki claims, includes all persons forced to abandon their place of abode due to circumstances independent of them.3 On the grounds of the Polish law the term "refugee" refers exclusively to the problem area connected with protection on the power of the Geneva Convention. There appears also the term "asylum" reserved for institutions that are able to grant protection to foreigners on condition that there are satisfied two conditions: there is a need to provide security against prosecution and it is in vital interest of the Republic of Poland. The Constitution of the Republic of Poland of 1997, in the part concerning persons applying for the status of refugee (art. 56), makes reference to international documents which are binding for Poland. However, art. 37 entry 12 of the Constitution guarantees benefiting the rights and freedoms established in it to anybody who finds himselflherself under the authority of the Republic of Poland. In September, 2003, the Act on foreigners of 1997 with subsequent amendments and the Act of 2001 on changing the Act of foreigners and on changing certain acts were replaced with the Act on foreigners of the 13th June, 2003 (Laws and Acts Gazette No. 128, entry 1175) and Act on rendering protection to foreigners on the territory of the Republic of Poland of the 13th June, 2003 (LOMJS CI~C/ Acts Gazette No. 38, entrj, 1176). There were also introduced new instructions. In the light of the Act on foreigners, art. 2, "a foreigner is anyone who does not hold Polish citizenship". Thus. a refugee, or

6 THE LEGAL REGULATIONS BEHIND REFUGEEISM-RELATED MIGRATION an immigrant, irrespective of the fact whether they hold citizenship of any country, or they have no citizenship at all, will be regarded as a foreigner according to the Act, which also determines the principles and conditions of entering the territory of Poland by foreigners, as well as those of their transfer within, stay in and leaving the country. It, moreover, determines the system of procedures and organs appointed to deal with such matters. The Act on extending protection to foreigners on the territory of Poland determines the principles, conditions and mode of providing such protection and the organs to deal with such cases. According to art. 3, a foreigner is granted protection on the territory of the Republic of Poland by granting himlher the status of refugee, asylum, permit of tolerated stay or providing temporary protection. Art. 22 of the Act on providing protection to foreigners remaining on the territory of the Republic of Poland requires that a foreigner applying for the status of refugee ought to be instructed in the language understood by him on the mode and principles of the proceeding, as well as on the rights and obligations he is eligible to, and consequences of not carrying them out. A similar obligation of providing information follows from art. 9 of the Code of administrative proceeding, while art. 43 of this Act is addressed exclusively to foreigners placed in guarded centers or those detained with the aim to expel them from the country. It establishes the right of the foreigner to be provided with legal aid. Foreigners may, at the stage of preparation of applications and during the whole administrative proceeding, due to the lack of regulations which determine possibilities of availing themselves of legal counsel offered by the office, accept the aid from volunteer-based NGOs or university-based legal counseling offices which work within Departments of Law and Administration. On the power of the Act on securing protection to foreigners on the territory of the Republic of Poland there followed changes in the regulations in force, included in different acts, as for example, the ones on census and identity cards, higher education, on social aid, on the educational system, on employment and prevention of unemployment, law referring to economic activity, on fiscal charges, on common insurance in the National Health Fund. Beginning from the 1st September, 2003 there were a series of instructions brought into life, including the following: - Directive of the Minister of Interior Affairs and Administration of the 14th August, 2003 with reference to the levels of the aid extended to foreigners applying for the status of refugee, - Directive of the Minister of Interior Affairs and Administration of the 18th August, 2003 concerning charges collected from foreigners for issuance and exchange of card of stay or other documents needed by foreigners, - Directive of the Minister of Interior Affairs and Administration of the 18th August, 2003 concerning conditions of accommodation of minors staying under no parental care and standards of care in centers designed for foreigners applying for the status of refugee. The Act itself and the above-mentioned Directive regulate basic questions with reference to protection of minors. The Act makes it necessary to provide each "minor not cared for" with a guardian whose duty is to represent the minor in matters concerning the asylum granting procedures, as well as with a "factual guardian". Children up to 13 years of age, according to the Act, will remain at a children's house, while those over 13 years of age - in the so-called "zone for minors" in refugees' centers. In compliance with the Act minors cannot be placed in centers with the aim to be deported or in guarded centers. There are accepted procedures and appointed administrative organs responsible for realizing them in Poland. The procedures determine the status of refugee according to binding standards. The integration program needs working out together with the aid program, which ought to be a con~pact system of specialist services and local communities - territorial self-governments and NGOs. Thc support offered to refugees by social aid institutions, which is realized within the framework of individual adaptation-inte~ration programs with the help of specialist counseling requires constant upgra-

7 STADNICZENKO STANISLAW LESZEK ding in order to fully combine migration policy and human rights. The moment the new members of the European Union became part of it, the EU structural funds and financed programs of development became accessible. As such they may be used to provide help to emigrants and refugees, e.g. European Refugee Fund established in 2000 by the Council of Europe, European Social Fund, PHARE. TALEX - Organization Support Bureau of Exchange of Information, based in Brussels can be of great help as it provides technical and expert aid on all levels of public administration, as well as to the third sector (NGOs). TALEX supports legislative and implementation activities by putting law into life. Apart from that, one can always count on support form UNHCR - United Nations High Commissioner of in charge of Refugees' matters. The rights of migrants and refugees constitute a delicate and complicated matter, which in the expanded European Union acquire new colors and force the European society to take into account the fact of bordering on new neighbors. The past experience must be transferred onto cooperation and joint action in dealing with refugees, assuming that migration or refugeeism are not a provisional, passing occurrence. Therefore, lasting social-legal solutions must be sought for, considering multi-factor aspects both on the national and international planes, with simultaneous respect shown towards the norms of human rights and system of protection of the latter. Endnotes I LM , p LM , p Wierzbicki, B., 1993, Uchodzcy w prawie miedzynarodowym (Refugees in the International Law). Warszawa, p. 25.