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close this bookThe Courier N 150 - March - April 1995 - Dossier: Refugees - Country Reports: The Bahamas, Guyana (EC Courier, 1995, 104 p.)
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View the documentRefugees and displaced people
View the documentRefugee women
View the documentDevelopment-induced displacement
View the documentFleeing environmental devastation in the Sahel
View the documentIs there a refugee-specific education?
View the documentRefugee participation
View the documentRefugee assistance: a common approach
View the documentDefending humanitarianism at the end of the 20th century
View the documentMozambican refugees and their brothers' keepers
View the documentThe European Union's asylum policy: control, prevention, integration
View the documentAsylum procedures in the KU: towards a lowest common denominator
View the documentA European response to the global refugee crisis
View the documentRefugees from the former Yugoslavia - The view from Germany
View the documentDeveloping early warning systems
View the documentChallenging the assumptions of repatriation
View the documentAfrican hospitality takes the strain
View the documentInternational instruments concerning refugees.

Asylum procedures in the KU: towards a lowest common denominator

by Johannes van der Klaauw

European Union governments continue to take steps towards harmonising their policies and practices in the field of asylum and immigration with the nearing completion of the internal market and the lifting of controls at the internal borders, EU governments have made arrangements to control the external frontiers of Union territory more tightly and to stem the flow of what they presume to be illegal immigrants Among these, however, are people seeking protection from persecution elsewhere

EU governments have adopted resolutions, recommendations and policy statements in the recent past to respond jointly to increasing pressure on their asylum procedures, caused by growing numbers of asylum-seekers. Many of these measures have had an adverse effect on the protection of refugees who are increasingly being refused access to the territory and to asylum procedures in EU member states. As a result of these proposals, national policies and practices have been adjusted to categorise a growing proportion of asylum claims as inadmissible or, for some other reason, as not meriting substantive examination Among these claims are some from people who have travelled through a third country, which, according to certain criteria set by EU governments, are obliged to take the asylum-seeker back When expelling asylum-seekers to such third countries, EU governments are not seeking assurances from these countries that they will carry out the substantive examination of the claim needed. Therefore the asylum-seeker is at risk of being sent back to his or her country of origin where he or she may become the victim of human rights violations

EU governments have also adopted proposals by which a large number of asylum claims are being qualified as 'manifestly unfounded,' to be processed in an accelerated procedure, without proper consideration, resulting in the forcible return of the asylum-seeker to a third country or the country of origin, where he or she may be at risk of persecution. But the definition of such claims adopted by EU Member States is broader than that set out in international standards and includes cases which, in the view of Amnesty International, deserve individual and substantive consideration

As long as there are serious deficiencies in national asylum procedures and practices in EU Member States. the detrimental effect of these joint policies, which do not take into account minimum standards of refugee protection, will only be exacerbated by the coming into force of the Schengen Supplementary Agreement and the Dublin Convention (determining the state responsible for considering an application for asylum) EU governments have recognised this since they have recently drawn up a set of minimum guarantees to be applied in asylum procedures in all Member States. However, their proposals-still under consideration -are legitimising existing deficiencies in Member States' asylum procedures rather than aiming at a common policy which matches up to the requirements of inter national standards.

Amnesty International has developed a comprehensive set of minimum standards for asylum procedures, which, if implemented as a whole, should provide better guarantee that refugees would be protected against being forcibly sent back he main characteristics of this proposal are: unfettered access for asylum-seekers in all cases to the asylum procedure, a fair and full hearing of his or her case, and an effective right to appeal against a negative decision which means that the applicant is entitled to await the appeal decision before being expelled. Only the combination of these three main elements constitutes a solid basis for an asylum procedure with sufficient guarantees to provide refugees with the requisite protection. However, the latest EU proposals do not respect all of these fundamental principles. Moreover, they leave the responsibility for decisions on asylum applications, in some cases, to immigration officials, including decisions whether to reject asylum seekers at the border - whereas such a responsibility, in the view of Amnesty international, should rest exclusively with a special central authority.

The latest Council of Ministers of Justice and Home Affairs adopted a model agreement for the readmission by third countries of persons deemed not to be admissible to sojourn in EU Member States. Among those to be readmitted by non-EU states are people who have submitted asylum claims in an EU Member State but whose claims have been refused-without a proper examination. When implementing the current model agreement. EU Member States, not being obliged to ask for a proper examination of an asylum claim in an identified third state. may be accused of encouraging the successful return from one country to another of asylum-seekers ultimately ending up in a country where they are at risk of persecution.

EU Member States are. furthermore, in the process of harmonising the application of the definition of a 'refugee' as laid down in Article 1A of the 1951 Convention relating to the status of refugees. They feel prompted to do so since they want, inter alia, to establish more or less similar recognition rates for refugees throughout the KU. They have chosen a step-by-step approach to reach agreement on common principles for assessing specific elements of this definition.

Amnesty International has urged EU governments on various occasions not to adopt principles falling short of already established international standards, since any initiative towards a new interpretation of elements of the definition will have consequences far beyond the borders of the KU. In this respect. any further proposals should follow the guidance of the 'Handbook on Procedures and Criteria for Determining Refugee Status', published by the United Nations High Commissioner for Refugees (UNHCR).

The current initiatives taken by EU Member States are affecting the countries of Central and Eastern Europe in the first place. being quite often countries through which asylum-seekers have travelled before calling at the EU external borders, and often being considered 'safe' third countries by EU governments. How ever, many African refugees seek asylum in an EU country after passing through other African countries, and these Africans are therefore also affected by the increasingly restrictive EU measures. These countries are not formally party to discussions leading to the adoption of EU proposals neither are the European Parliament, expert bodies in refugee matters or interested non governmental organisations. EU governments should act in a true spirit of international cooperation, while decisions adopted should be in line with international standards and reached in a transparent and democratically control fable process. Otherwise the current initiatives will not contribute to solving the present pressure on the refugee protection system in Europe, which, in fact, is less extensive than in many other - much poorer parts of the world.