Argumentation Tool for PERCO National Societies for use in discussions with their respective governments concerning Transit Processing Centres outside the EU Adopted by PERCO General Meeting in Sofia on 13 th -14 th October 2005 20.9.2005 / Final Draft Austrian Red Cross / Jürgen Högl / Minoo Amir-Mokri / Bernhard Schneider Danish Red Cross / Ann-Sofie Bech IFRC / Helene Lackenbauer Finnish Red Cross / Ann-Charlotte Sirén-Borrego German Red Cross / Sanela Sabanovic
Introduction, Context EU member states have for a long time been the destination of a great number of people from all over the world who for many different reasons have wanted to lodge asylum claims and stay there. Due to a significant rise in the number of asylum seekers during recent years the asylum systems of many EU countries have been put under great stress and have experienced severe problems. This among other reasons has led to a shift in public opinion in many countries and that has in turn caused politicians to think of ways to avoid the problem (asylum seekers) as far as possible. This shift in public opinion and asylum policies is still in place, although according to UNHCR and other sources, e.g. governments, there is now a decrease in asylum applicants in Europe; in 2003 it fell 15% from the previous year, and in 2004 5,6%, from 2003. See http://unhcr.ch/statistic. Other reasons are related to free movement, Schengen, the protection of the well fare state and harmonisation of the migration regime. The overloading of asylum systems is also caused by the lack of a labour migration regime in the EU. Socio-economic migrants who want to work in the EU in many cases see no other alternative than presenting themselves as asylum seekers. The spectrum of suggestions and ideas coming from EU politicians has been and is very wide, ranging from Clearing-Centres for asylum procedures within EU states to Protection Zones outside the EU or Accommodation close to Countries of Origin without the opportunity for asylum in an EU country. There are also member states that have opposed the proposal on processing centres outside the EU since it could undermine the protection system and thereby entail increased vulnerability. The same applies for the European Parliament which has only recently rejected the idea of offshore processing centres. Many of these suggestions seem to be inspired by the Australian Asylum System, in which asylum seekers apprehended off or on Australian shores are taken to Asylum Centres outside Australian territory on the island of Nauru in Papua New Guinea or on the Christmas Islands. There, the national NGOs deplore low standards of accommodation inside the Centres and about the lack of access to the centres for NGOs which would like to provide help, independent monitoring, etc. It might also be mentioned in this context that according to 2
some Australian NGOs the cost of off-shore processing by countries like Australia has so far proven to be very high 1. In effect, the suggestions made so far by EU politicians seemed rather sporadic, unclear and not very well thought out. This, together with the obvious difficulties associated with these ideas and the absence of a common European asylum system has so far prevented any implementation of concrete steps. However, this could change soon. At present, EU member states are financing asylum seeker centres in Morocco and are negotiating measures with Libya that are supposed to stop the flow of migrants across the Mediterranean See. Suggestions that Eastern European states like Ukraine could host EU transit processing centres have so far apparently been unsuccessful. The original suggestion, which came from the British government in February 2003, contained several levels: One level concerns Transit Processing Centres which according to this plan should be built outside the EU, along the main routes used by asylum seekers to reach the EU. Asylum seekers who manage to reach Europe should be transferred to these Centres and their asylum procedures should be conducted there. According to the original British plan refugees should be distributed to EU member states using a quota system. After a rejection of the asylum claim, the asylum seekers would face immediate deportation. Wherever this is not possible (e.g. Art. 3 ECHR) they would be accommodated in refugee areas close to their countries of origin. This would be the second level of the plan. These refugee areas could be set up in Morocco, Iran, Turkey, etc. They are also intended to serve as preventive measures, to discourage possible asylum seekers from coming to the EU. According to the British plan, IOM and UNHCR should play key roles in these refugee areas. Accommodation of refugees in the vicinity of their countries of origin (in this case with financial support from the EU) is as such not a problem and is a common practice worldwide. 1 See http://www.oxfam.org.au/campaigns/refugees/pacificsolution/ 3
In case of successful asylum claims there are different ideas: Either the refugees should be transferred to an EU country or this should only be the case if one of the EU countries agrees to take them. If not, they should be accommodated in the vicinity of their countries of origin (the latter has been suggested by the German Minister of the Interior Otto Schily). The proposal of processing asylum-seekers outside EU borders has put the UNHCR in a difficult dilemma as to whether to counter the most recent proposals from a principal or more pragmatic point of view. The mandate of the UNHCR is to uphold the highest standards of refugee protection; however a too principled approach might leave the UNHCR outside of any plans and subsequently leave refugees without protection. On the other hand; a pragmatic approach of accepting processing centres might leave little room for negotiation towards the principle of allowing people to seek asylum in a country where they feel they are most likely to find quality protection. UNHCR is also planning to build capacity in North Africa in order to improve the asylum systems in these countries. The EU Commission has also pledged to fund UN programmes to assist five North African countries with their asylum and migration responses. All these ideas and suggestions are associated with a lot of different problems and complications that could prevent asylum seekers from exercising their right to international protection. The problem is that migrants and asylum-seekers are being seen as one and the same, i.e. people arriving in Europe that need to be sent back to their regions of origin, even if they never transited the country to which they would be returned. Sending asylum seekers to countries with a poor record of respecting rights is a detriment to the right to protection. It also shifts the burden of asylum-seekers to poorer countries with fewer resources than European countries. RC/RC National Societies should be aware of these possible problems and threats for refugee protection and discuss this issue with their governments whenever it enters the public debate. This paper contains a list of possible problems and difficulties that could be associated with the creation of Transit Processing Centres (TPC) outside the EU territory. Its purpose is to serve as a tool for RC/RC National Societies to alert the responsible persons within their governments to these potential problems, to advocate in favour of those who seek protection and to ensure that protection is guaranteed in the best possible way. 4
Aspects which the RC/RC movement should consider having an opinion on according to its mandate and principles and in the light of its humanitarian mission in general: One of the most obvious difficulties with TPCs and similar plans is the fact that in the absence of a common European asylum law it is entirely unclear which law would apply to the asylum seekers in the Transit Processing Centres outside the EU and to their asylum procedures. European governments would first have to clarify that in order to ensure that international refugee law and adequate legal procedures are put in place. According to the plans of the EU Commission there should be a common European asylum law by 2010. The plan seems to be that IOM should play a major role in the future handling and processing of asylum seekers 2. What exactly this role should be is as yet unclear just like the legal status that IOM is planned to have and the kind of authority that states are likely to transfer to it. Linked to this, the role of IOM vis à vis the UNHCR with its mandate to refugee protection has to be clarified by the European governments in order to ensure greatest possible protection of those in need. When distributing refugees to EU member states, there exists a severe threat for families to be separated. In order to avoid fundamental Human rights violations European governments have to put mechanisms in place to safeguard against the separation of families. Further, in case of separation family reunification has to be secured due to humanitarian reasons. Another problem is the standard of accommodation in these TPCs. Would they correspond to the standards of the host country or to the standards inside the EU? It could be doubtful whether an adequate reception and accommodation according to the rules of international law and EU law could be put in place in many of the countries under discussion. Setting an EU standard for accommodation could lead to the problem of two different standards within one country the lower standard of the host country (and its population) and the higher standard inside the refugee areas, which could in turn lead to social tensions, destabilize the host countries and even 5
lead to conflicts. Further, European governments would have to agree on the way the standards and the practice in the centres would be monitored and by whom. If the perspective for an asylum seeker who lodges an asylum claim on the territory of the EU is to be transferred to a processing centre outside the EU, a realistic scenario could be an increase in irregular migration in the EU. The same could apply if the standards of accommodation in the TPCs should be too low. The permanent detention of asylum seekers would not conform with the European rules for their treatment. European governments would have to clarify their view on the maximum duration of detention in these centres. Contrary to the present situation, there would be no chance of starting an integration process during the asylum procedure, as the asylum seekers would not be in their prospective country of asylum. They would see their country of asylum only after a successful asylum procedure; the integration process (learning the language, culture, customs, etc.) would have to start at a very late stage. This would make things more difficult for both the refugees and the EU countries accepting them. It should be stressed that integration is a crucial factor for a successful refugee and migration policy and the beneficiaries of successful integration are both the migrants and the host societies. Setting up Asylum Processing Centres in countries to which some European asylum authorities do not even forcibly return failed asylum seekers because of severe human rights violations seems highly problematic from a legal and humanitarian point of view. Who would do the monitoring of so many different procedures? What about second instance procedure and procedure before the National High Courts if the asylum seeker cannot appear there to be interviewed? It seems unclear if and in what way necessary legal assistance for asylum seekers would be guaranteed in TPCs. 2 For details of these plans that were first leaked to the public by the British government in February 2003 see http://www.ecre.org/eu_developments/debates/noll_response_rev.pdf; http://www.refugeecouncil.org.uk/downloads/policy_briefings/blair_newvision_report.pdf; 6
Even more than now EU countries would have to face the accusation that they are not fighting the causes of migration, but go to tremendous lengths to fight only the symptoms. The idea of setting up TPCs could be seen as simply transferring problems arising from mixed migration flows to the EU to other states which might be even less able to cope with them. It is highly doubtful from a humanitarian perspective whether the centres are in the best interest of those who seek refuge in the EU and whether their protection can be ensured better outside the EU. Several politicians from EU countries have suggested that it should not be possible at all to lodge asylum claims for EU-countries in these Centres. This would mean that the asylum seekers would have to lodge their claims directly in the respective host countries in which the Centres are situated and that these host countries and not the EU-countries would have to deal with them and the asylum seekers. Additionally, it could again lead to a massive increase in irregular migration in the EU. In general there is a need to distinguish between solutions for so called irregular migration and solution for refugee protection. The solution to so called irregular migration is most probably not to set up centres in North Africa nor is it to tighten the protection of the EU borders. As long as there is a demand for cheap labour in the EU and entire sectors - e.g. the service and tourist sectors, domestic services and the construction and agriculture sectors - which is met by both undocumented and legal immigrants then people from less prosperous countries will continue to take the risk of illegally entering Europe. Experiences of the past years show that tightened border controls bear the severe risk that trafficking in human beings a modern form of slavery - will increase. Several NGOs ECRE is one of them - have argued that the one solution to illegal migration is to open up new legal immigration channels. They also argue that an immediate solution is to lift the visa obligations on nationals from the top refugee-producing countries and issue so called "humanitarian visas" to asylum seekers from countries where serious human rights violations are taking place. 7
Other questions to address in relation to the processing of refugees outside of Europe are the following: Do centres comply with the 1951 Refugee Convention, European Convention on Human Rights and other international human rights instruments? Do centres guarantee protection and a durable solution to refugees, together with the return of those in need of protection? If not, it may lead to protracted camp situations. The cost of off-shore processing by countries like Australia and the USA has proven very high in the past without at the same time increasing the protection or the standards of accommodation of the vulnerable persons or the effectiveness of the asylum systems. From a humanitarian perspective it would seem necessary that states use the resources available for the asylum system in a way that ensures the best possible protection, adequate accommodation and the most effective and efficient asylum system that can be achieved. Of course there are severe legal doubts whether it would indeed be possible for EU countries to refuse to accept persons whose asylum claims have been approved in their own Transit Processing Centres. Although the original British plan calls for the distribution of refugees to EU countries using a quota system, such a system is not very likely to materialize in the near future. Another legal difficulty is related to the tricky question whose asylum law(s) will be applied in these Centres. Since they are outside the EU, the natural answer would be the law of the host country. This of course cannot be true since the EU countries are obliged to examine each asylum claim lodged on their territory according to their own laws, regulations and legal standards. So in the absence of a common EU asylum law all the asylum laws of the EU member states might have to be applied in each Centre. The next question would be, by whom these different laws would be applied. This could obviously not be the asylum authorities of the host country. So there would have to be subsidiaries of the asylum authorities of all EU member states in place in each Centre to conduct their own asylum procedures there. This would be an extremely difficult situation from a legal standpoint and it would be made even worse by the question who would execute decisions of these many different asylum 8
authorities in a foreign country and what happens when and if the host country fails to execute them. It remains unclear who would in fact run the TPCs and organize their infrastructure. The EU countries and the host countries would either have to agree on private contractors or would have to run them themselves. This very important matter would have to be clarified before TPCs could be put into operation. Detailed thought should also be given to the question whether the expected benefits of the TPCs really outweigh their possible humanitarian cost. Both the regional outsourcing of asylum procedures and the shifting of the EU countries migration problems to other areas appear to be highly questionable from a humanitarian point of view since both measures seem to entail a high risk of further increasing the vulnerability of already very vulnerable persons. The Red Cross and Red Crescent is convinced of the EU having the means and the capacity to deal with its migration challenges itself without using its influence to shift the burden to less developed regions and countries and thereby risking a range of humanitarian problems. Therefore PERCO National Societies should urge the EU and its member states to constantly adapt and enhance their asylum/migration systems to the changing practical humanitarian needs so that they will be better able to deal efficiently and effectively with the challenges posed by migration - be it asylum seekers or labour migrants. In this context the Green Paper on an EU Approach to Managing Economic Migration which in our view acknowledges the need for common standards and action and which could lead to positive steps into the right direction should be pointed out. Finally, in light of the now clearly foreseeable massive demographic changes taking place in Europe all actors involved in the ongoing discussion about migration issues and the challenges involved should be invited to discuss different positions and to try to see migration not as a threat and a burden, but above all as a chance and a necessity for Europe and its citizens in a globalized world. 9