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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.

The European Union's asylum policy: control, prevention, integration

Asylum is defined as the right to remain in a foreign country because it would be dangerous for the applicant to return to his or her home country for political reasons. and is a right which the countries in the European Union have hitherto regulated under their own national legislation Asylum policy first officially became a 'matter of common interest' to all the Member States when the Maastricht Treaty establishing the European Union came into force in November 1993 and defined asylum as one of the areas for joint, intergovernmental action in the field of justice and home affairs. As well as the legal innovation, the Treaty introduced an important institutional change, in that it raised the European Commission from the status of a mere observer in this context by giving it powers of legislative initiative Wasting no time, in February 1994 the Commission issued a Communication on immigration and asylum policies addressed to the EU's Council of Ministers and the European Parliament. This wide ranging review of the present situation. combined with a set of proposals for future policy development, now serves within the EU institutions and the Member States as a seedbed of new ideas for tackling these ever more pressing issues.

Dennis De Jong works for the European Commission's Secretariat-General in Brussels on the coordination of immigration and asylum policies and had a hand in drafting the Communication For him, the major message is that there should be a balanced, comprehensive approach which gives equal importance to control, prevention and integration. 'Very often, national governments concentrate on migration management and control measures,' he says. 'But if instead of only focusing on control you focused on what comes before and after admission-let's say, how does migration pressure come up, what are the underlying causes, can we influence the causes, can we create alternatives to forced migration?-it would be far better for all concerned. A practical preventive policy should never imply that people are forced to stay in their country I want to make that clear because some times you hear people saying: "First you have your control policies, and now your preventive policies to stop people from fleeing their country " Of course that is not our intention, it's Just to take away the causes so that people do not have to flee We would never say- "There's a need to flee but we won't let you." That's exactly the opposite of what we're saying.'

50 the Communication calls for improvements in the collection of information on migratory flows into the Union and the causes of such flows and suggests setting up a permanent body to monitor migration pressures and movements. Making human rights policies more effective, it says, would in itself forestall forced migration by victims of human rights violations and persecution. And Mr De Jong points out that the document suggests an innovative way of achieving this. 'There is a recommendation to use, for our human rights policies, the information we get from asylum seekers. Mr X's personal file cannot be used directly with the name and everything, that is far too dangerous. There's the question of privacy and data protection too. But what you could do is use the material to describe tendencies. If you suddenly get a lot of people from Iran and they all say their religious or social group suffers from persecution, that is an important fact for our human rights policies.' A further innovation would be to create institutional linkages between Foreign Ministries on the one hand and Justice and Home Affairs Ministries on the other for the purpose of translating such information into practical foreign policy initiatives. No such links exist in any Member State at the moment. At the European Union level, the Commission proposes to give more thought to how the effects of civil war and tension can be factored into policy decision-making. 'In some countries neighbouring on the European Union there is instability; there is growing political ethnic and religious tension. Our Delegations or Embassies do report on these situations, but what is amazing is that immigration ministers, justice and home affairs ministers, never discuss them as a group until there is already mass-media interest For example, we are going to face hundreds of thousands of Algerians fleeing their country. In France every month there are more than 1000 Algerians coming in needing intervention and prosection. France has already set up a scheme for that, but we are not discussing it yet in our third pillar mechanism, justice and home affairs, because there is no interaction between it and the second pillar, foreign and security policy.' Here the Commission, as a single organisation, can act as a linking pin between ministries and a source of ideas on preventive diplomacy though Mr De Jong acknowledges the limitations of that kind of diplomacy: 'It didn't solve the problems of former Yugoslavia, there's no guaranteed success here, but at least you could give it a try. And the sooner you know about growing conflicts the better it is.'

There is actually a heading in the European Union's general budget for setting up an early warning system on migration movements, and on a trial basis, the money has recently been used to run a project in the Ukraine, with the approval of that country's government. Locally recruised correspondents there have found that transit migration through the Ukraine from neighbouring, former Soviet-bloc countries is greater than migration by Ukrainian nationals and far greater than was previously suspected from informal reports. All the people concerned are potential migrants to Western Europe, so the information is obviously of vital importance to policy makers in the Union, Doing the same kind of survey in ACP countries should theoretically be possible if the governments concerned give their consent. The problem in practice is that the countries where such an exercise might be useful tend to be those where tensions are already running so high that people collecting data and sending in reports could well risk their lives doing so.

When Member States are considering whether migrants have left their countries for political or merely economic reasons, there is some overlap in the sense that some economic migrants, when all other channels to admission have been closed, use the instrument of asylum as a last resort. Most migrants from the ACP countries, however, come to Europe simply for economic reasons. But might an early warning system produce information which would suggest economic policies development planners might adopt to halt migration from source countries? The traditional argument,' says Dennis De Jong. 'has always been that if you give more development aid, in the end you probably have less migration pressure, but there is a short-term effect which increases migration pressure. First, People get the financial means to travel, and they will, probably travel in the beginning. Only after some time of stability will you be able to say that the migration pressure goes down. We would probably put it the other way round. At present, very often, the discussion is not so much about increasing development aid as about decreasing it, and it's probably far more powerful to say if you decrease development cooperation funds in certain areas you can be sure that you will pay for it another way, in terms of migration, illegal immigration most of it, or asylum. That's a useful basis for a general discussion, where the development community and those concerned with migration have shared interests.'

The Commission is already looking at the details of prevention, and has a programme under way in the Mediterranean area which involves examining exactly which parts of Morocco generate migration towards the European Union, so development aid can be targeted on those specific areas to create opportunities which will encourage people to stay there. Eurostat, the EU's Statistical Service, is investigating root causes in a number of countries of origin. This activity, carried out in cooperation with other organisations, could be the nucleus of a wider network in the future As Mr De Jong puts it: 'Any country is a potential refugee source. It should not become a political issue that we start to do some early warning in a certain country. If this became a very public, widely discussed political issue in a particular country, it might even destabilise the country and have a contrary effect. So it should be a rather broad network, and I think it would be better to have something which would be at least endorsed by UNHCR, which makes it far less political and far more a general activity that is deemed to be useful for the UN as a whole. We have direct contacts with the US State Department and the Canadian Government, which have the same sort of problems as we have, so perhaps what starts as a very small pilot project with a possible initiative in the form of a communication by the Commission might eventually evolve into some sort of a global early warning system, which everyone agrees we desperately need.'

The thorny question of defining who exactly is a refugee has traditionally been seen as the prerogative of the Member States. Work on a coordinated definition started a year ago. Any finally agreed version will certainly be in accordance with Article 1 a of the Geneva Convention, which stipulates that a refugee is a person with a well-founded fear of persecution in his or her country of origin on a variety of stated grounds. At present Member States are liberal in regard to individuals seeking asylum to escape persecution. 'What they don't want,' Dennis De Jong says, '-and that's the major problem with the Yugoslav crisis, for example- is determination of eligibility by group No Member state at this stage is ready to accept that the only thing you have to say is: "I belong to this group and so I'm a refugee " They always want individual examination.' Hence the new category of people who are allowed in under temporary protection instead of refugee status. 'Many Member States would now say civil war situations are generally not the situations that the Geneva Convention deals with. The Convention deals with a government which persecutes a certain person, not with a country in turmoil. So almost all Member States have now developed new schemes for admission on a temporary basis of those who flee a civil ward situation and cannot be sent back to the country of origin for that reason.' Member States do not always even officially admit that these schemes exist, for fear of attracting more people from the world's trouble spots. So there is no hope of harmonising them at the moment; but the Commission would at least like to see the Member States all agreeing to give temporary protection to certain vulnerable groups from certain countries at the same time, rather than have some turn them back while others are letting them in. 'And temporary protection cannot last for ever: it should be followed either by return or by permanent settlement, and those are probably decisions for the Council to take rather than the Member States.'

Distribution of refugees in Europe, November 1994 Member States of the European Union are highlighted

Amnesty International has criticised the practice of some countries which refer, or even physically return, asylum-seekers to the last country they passed through since leaving their country of origin. People fleeing from Angola, Ethiopia and Somalia, for example, have been known to fly to Russia solely because that was the only country issuing immediate visas when they had to leave, then to apply for asylum in the European Union from Russia and to be told that they are Russia's responsibility The Geneva Convention says that a person may flee his or her own country and is entitled to protection elsewhere-but it does not say that that right has to be granted automatically in any particular country if a refugee has first passed through others where he has or might have sought protection. The Commission supports this interpretation, which is known as the third host country principle. but calls in its Communication for a mechanism to be set up to support projects by third transit countries which find themselves suddenly facing unfamiliar migration pressure. 'You see the situation in Poland, the Czech Republic and now the Ukraine,' says Mr De long 'If we deny altogether that one way or another we are responsible for helping out the countries which are affected by these flows, we are just dumping people on other countries. You can't have that.' Refugees in third host countries where reception facilities are inadequate to cope with the numbers arriving may end up destitute on the streets, and the ultimate danger is that an overburdened transit country, if no one helps share the burden, may simply send asylum-seekers back to their countries of origin. The European Parliament has proposed earmarking part of the general budget to set up a European Fund for Refugees specifically to pay for burden sharing, both among EU Member States and with host countries outside the Union.

There has not so far been much progress in the European Union on harmonising minimum standards for fair and efficient asylum procedures, in other words making sure that the Member States treat asylum-seekers uniformly. When the Commission put out a working document on this matter last year, each national government wanted to incorporate the exceptions contained in its own law, with the result that 'on very important issues like the right of appeal and suspensive effect, whereby the person can stay in the country while his appeal is heard, we see that the document has been terribly weakened. What this leads up to is harmonisation at the lowest common denominator. You don't get harmonisation at the humanitarian level if you have to reflect the most restrictive national legislation'

The Communication on immigration and asylum policies makes suggestions for preventing illegal immigration and dealing with illegal residents in the Union. focusing particularly on illegal employment and on establishing uniform schemes for the voluntary repatriation of illegal immigrants. When it comes to integrating third-country nationals legally residing in the Union, the Commission urges the Member States to harmonise their legal status so that they can acquire permanent residence entitlement, and to allow them freedom of movement. The right economic and socio-cultural conditions also need to be created if integration is to be successful This should involve steps to combat unemployment among third-country nationals and proper monitoring of their working conditions, as well as developing special programmes of education and vocational training for them. And the European Union, says the Communication, should set up systems to monitor racial harassment and codify a ban on racial discrimination in employment.

Migration and asylum within the ACP group fall outside the scope of the Communication, but the Secretariat General welcomes the direct link set up in the Lomonvention between respect for human rights and the supply of development aid, in that encouraging human rights observance tends to discourage migration. The same applies to another aspect of the Commission's work in some troubled ACP States, as Mr De Jong concludes: 'It is in the Third World itself that you find most refugees, not here, and humanitarian relief is extremely important in preventing further destabilisation because of refugee movements in the Third World.