EUROPEAN CENTRE NATOLIN Warsaw, Poland Green Paper on the future Common European Asylum System comments of Forum EU Justice and Home Affairs, European Centre Natolin, Warsaw, Poland September 2007 Forum Justice and Home Affairs in the EU is an academic-expert network established in August 2004 in the European Centre Natolin, Warsaw, Poland. Forum's main goal is integration of Polish experts, scholars, students, public administration officials, NGO activists working on widely understood topics of Justice and Home Affairs in the European Union. Forum seeks to enable contacts and develop mutual cooperation in order to exchange ideas, promote scientific research, formulate common positions and promote scholarship of Forum members. Forum organizes seminars and workshops, it has its own publication project in the series of Working Papers, it maintains its own internet portal (http://www.wsisw.natolin.edu.pl). If you require further information regarding this submission, please contact: Artur Gruszczak Coordinator JHA Forum European Centre - Natolin Nowoursynowska 84, 02-797 Warsaw, Poland; phone: +48 22 545 9800; fax: +48 22 649 1797 E-mail: wsisw@natolin.edu.pl The management of migration flows has been one of the most substantive issues challenging the EU Member States in the process of development of an area of freedom, security and justice. International legal protection of the refugees and the institution of asylum constitute relevant aspects of migration management, both in the context of obligations and responsibility shared by the Member States on the strength of provisions of international law (the 1951 Geneva Convention most of all) and instruments of Community law, as well as social and political determinants of the inflow of third-country 1
nationals to the EU. Not less important are humanitarian reasons, concerning various forms of protection of aliens against persecution and stability of their situation in the receiving EU countries in the context of their integration, preservation of cultural identity, access to the labour market. The proposals contained in the Green Paper on the future Common European Asylum System significantly go beyond the current regulations, however many of them are broad, vague, sometimes logically contradictory postulates moving away from the provisions of the European Treaties. The logic of the proposals in the Green Paper implies a clear and decisive communitarization of procedural and organizational principles of international protection of aliens, yet it leaves the political factor aside, neglecting serious and lively interests and actions undertaken by particular Member States. As a result, there is a plenty of interesting and prospective ideas and plans, but their efficient and quick implementation is much less realistic. A more precise formulation of principles and foundations of a future common European asylum system should be possible following full transposition of the instruments of Community law adopted in the first phase of the construction of a common asylum system. It should be kept in mind that the obligation, coming from the provisions of the Treaty establishing the European Community (article 63.1), to adopt measures on asylum in accordance with the Geneva convention makes the Community subject to a given normative framework whose key elements, like the right to asylum, non-refoulement principle or protection against discrimination constitute a set of fundamental rights and as such do not require additional confirmation. A single asylum procedure, including the basic forms of protection of aliens, should be an important element of a common asylum system. Due to that a proper, constant and comprehensive procedure should be valid throughout the EU and persons applying for refugee status should not be left in uncertainty and experience the fear of exclusion. The establishment of a common asylum procedure may require the giving up of the lowest common denominator approach, according to which measures on asylum are taken on the basis of minimum standards. Approximation of national rules would evidently be a 2
positive step forward, however it seems that it would prove efficient in such areas as harmonization of administrative proceedings, common forms of subsidiary protection, common measures of temporary protection. In the light of certain obstacles and barriers of information sharing, mutual administrative assistance and exchange of practices, it would be reasonable and helpful to establish on the basis of Article 66 of the TEC - and taking advantage of EURASIL experiences - a European Asylum Agency. An Agency, attached institutionally to the Commission and acting as its supportive body yet having a relatively wide range of autonomy, would perform the following tasks: to stimulate cooperation between administrations of the Member States in charge of conducting and executing asylum procedures; to exchange best practices; to prepare risk analyses and to share assessments of situation in the third countries in the context of possible or potential inflow of aliens with a view to seeking asylum; to identify and make socio-economic studies of nationals of third countries who already applied for asylum; to prepare current maps of origins of refugees and their distribution across the European Union. The level of material reception conditions differs significantly among the Member States. Differences depend on various national definitions of an adequate standard of living, currency purchasing power, organization and performance of social services, unequal access of refugees and asylum seekers to facilities. Uniformity of conditions and of material conditions for persons seeking asylum is not possible while it is recommendable to approximate the levels of protection of refugees to material standards of EU citizens and legal residence through the relation to a common basket of material and social services. 3
The question of the access to the labour market may be taken in a similar way. Specific situation in particular Member States makes it difficult to approximate and harmonize national rules on access which depend on many factors like the structure of employment, flexibility on the labour market, current demand on labour force and required professional skills and qualifications. In this context it is important to establish an efficient system of professional training of aliens adequate to the requirements of a local labour market as well as to the necessity of acquiring by aliens in a relatively short span of time practical skills sufficient for employment. The effectiveness of a system of facilitating access to employment by asylum seekers would depend on introduction of adequate mechanisms of control and monitoring in order to prevent and avoid abuse of protection status and to eliminate incentives to pathologies (illegal work, black labour market, asylum as a way for legal employment of third-country nationals). A single uniform status of aliens under protection in the EU Member States is practically impossible. It would require fundamental changes in international legal normative framework in the area of protection of refugees and asylum seekers. The question of returns of third-country nationals is directly linked to procedures of enforcing decisions, opportunities for appeal and national rules of treatment of aliens subject to a decision on return. Mutual recognition of national decisions on granting or withdrawing refugee status would require an efficient system of information exchange, close cooperation of national administrations and mutual recognition of decisions concerning persons who were not granted asylum. Future models of integration of refugees should embody a wide range of various acitivities, both in individual sense (vocational training, professional courses, meetings) and in groups (adaptation to the labour conditions, autonomy of cultural and social activities). Elaboration of a common approach to the issue of preventing persecution and abuse of aliens is rather not recommended given that every case of persecution or abuse, as well as 4
preventive and remedial measures undertaken in such a case, has its own particular and individual character and has to be treated in a particular and individual way. However, it is advisable to approximate attitudes and positions on the grounds of temporary protection measures, especially the provisions of Council Directive on minimum standards for the reception of asylum seekers. An exchange of best practices as well as cooperation and exchange of officials responsible for the protection of asylum seekers and refugee would also be positive. Concerning solidarity between EU Member States and burden sharing, it should be underlined that the Dublin system has been working well and any modification should be taken with due care, taking into advantage the issue of family reunification and the costs of subsidiary protection. Cooperation with the third countries is indispensable yet its range and nature raise doubts. Limited experience in the functioning of regional programmes does not allow for an overall and unambiguous evaluation of their effectiveness and further viability. Evidently, they stem from right presumptions but their monitoring and verification are still incomplete, especially in the countries located far away the European Union. Obviously enough, variable circles of association and cooperation with the EU determine differentiation of regional protection programmes and implicate flexibility of ways and means applied by the EU. An important task is to link asylum matters with the economic migration in such a way as to exclude persons motivated economically from third-country nationals seeking asylum in the Union. It could be done by introduction and enforcement of adequate mechanisms allowing for legal employment of citizens of third countries. The question of resettlement of refugees within the territory of EU Member States is complex and difficult given the differences in social-economic situation, varying conditions of reception of refugees and different procedures and modes of organization of resettlement. A key element should be the consent of involved Member States following a balance of needs prepared by these states with a European Asylum Agency in a support capacity. 5
A common asylum policy should give a strong impulse for a reform of the international system of protection of persons seeking the status of refugee. The Geneva convention had been adopted more than half a century ago in totally different circumstances than nowadays. The European Union should create through the development of a common European asylum system a benchmark and the pattern of best practices for other countries. 6