Director of the Europe Bureau,
United Nations High Commissioner
for Refugees (UNHCR, Geneva)
‘‘Assessment of recent EU asylum policy
and legal developments”
Ü Eurasylum: In a report published in June 2008, entitled “Building a Europe of Asylum: UNHCR’s Recommendations to France for its European Union Presidency (July – December 2008)”, your agency outlined a number of recommendations to guide the completion of the Common European Asylum System. In particular, your report touched on issues relating to the safeguard of the rights of asylum-seekers and refugees in the broader migration management context; the development of a fair and effective Common European Asylum System; the development of durable solutions for refugees; and the global approach to migration and the “external dimension” of asylum policy. Can you sum up some of these recommendations and comment, in particular, on the strategy, practical tools and timetable set out in the European Pact on Immigration and Asylum, which was adopted in October 2008?
Ü Pirkko Kourula: The Pact, together with the Ministerial Conference on Asylum in Paris in September 2008, are evidence of the high priority given to migration and asylum matters under the French Presidency of the European Union. However, as UNHCR emphasized in its Recommendations to the French Presidency, there remains a need to develop practical and reliable ways to safeguard the rights of asylum-seekers and refugees in the context of migration management and border control. A ‘Europe of Asylum’ cannot be built without assurances of access to the European Union Member States for persons seeking protection.
With respect to the Common European Asylum System, the Pact postponed the date for completion of the system from 2010 to 2012. It was well known that the 2010 deadline posed enormous challenges for the European Commission, which has to propose amendments to the first phase instruments without being able to benefit from a full analysis of their implementation. Indeed only two of these instruments, the Dublin II Regulation and the Reception Conditions Directive, have been fully evaluated. The implementation of the Qualification Directive and the Asylum Procedures Directive has not yet been fully evaluated by the Commission. However, a number of outside studies, including one conducted by UNHCR, confirm that practices among Member States vary widely, resulting in large divergences in procedural standards granting of asylum.
In the section devoted to asylum, the Pact addresses the disparities in asylum decision-making in the EU Member States. Indeed, UNHCR has continuously urged the states to take up the challenge of improving the quality and consistency of asylum decision-making. Whereas legislative amendments may to a certain extent address such divergences, a broader approach, including practical cooperation mechanisms, interpretative guidance from the European Court of Justice and the systematic use of quality assurance mechanisms will be needed to ensure that persons in need of international protection are able to find it, no matter where they lodge their asylum applications. The strengthening of practical cooperation among Member States and the creation of a European Asylum Support Office are positive proposals. It is clear that the Common European Asylum System will remain a work-in-progress for some time, even after the next phase involving amendment of the legislative standards is completed.
UNHCR furthermore welcomed the reference made in the Pact to refugee resettlement as well as the November 2008 Conclusion of the Justice and Home Affairs Council calling for increased engagement of EU Member States in resettlement of refugees from Iraq. Resettlement often is the only available solution for a relatively small number of refugees who, for ongoing protection reasons or because of their past experiences, cannot be expected to return to their country of origin. We very much welcome the new momentum on resettlement in Europe. For many years, only a handful of Member States have implemented refugee resettlement programmes. The increasing interest in resettlement is a very positive development.
Ü Eurasylum: Recent EU Directives, particularly the Return and recast Reception Directives, have aimed to extend the scope for protection, and to strengthen asylum determination procedures, throughout the European Union. Despite such developments, UNHCR has often expressed strong reservations about the directions taken by recent EU legislative initiatives, particularly as regards the discretion afforded to Member States not to apply the Return Directive to third country nationals refused entry or who are apprehended or intercepted while trying to cross the border irregularly; the obligation to include entry bans of up to five years in certain return decisions; and the non-suspensive character of legal remedies. Can you discuss, briefly, your current perception of the key strengths and weaknesses of recent EU legal instruments in the field of asylum?
Ü Pirkko Kourula: For many years, UNHCR has been following the development of European asylum legislation. Declaration 17 of the Treaty of Amsterdam provides that UNHCR shall be consulted in all matters concerning asylum. We have tried to play our consultative role in a constructive manner, working with the European Commission, the Member States, and increasingly, the European Parliament, to ensure that European standards adequately reflect international refugee protection standards and norms. In light of EU activities in the so-called external dimension of asylum, countries outside the EU also look at the EU legislation for inspiration.
The political environment in which the Common European Asylum System is being built, has changed over the last decade and continues to evolve. If one compares the rights afforded to beneficiaries of temporary protection under the Temporary Protection Directive with the rights granted to subsidiary protection beneficiaries under the Qualification Directive – which was adopted several years later – there is clearly a tendency to become more restrictive. The asylum debate increasingly takes place in an environment where the migration control and security imperatives weigh heavily. I am also concerned that the current global financial crisis may have a detrimental effect on the environment for refugee protection.
Nevertheless, important progress has been made and the EU legislation has in many ways brought refugee protection forward. For example, as a result of the Qualification Directive, all EU Member States must now accept that non-state agents can be actors of persecution in the sense of the 1951 Refugee Convention. This resolves a long-standing dispute in Europe and results on a daily basis in people being afforded the protection they need. Furthermore, the Reception Conditions Directive is the first international or regional instrument to set out clear norms for the reception of asylum-seekers. Although much can be improved in the implementation of this Directive, its adoption is a major step forward.
The Asylum Procedures Directive is an instrument which is clearly the result of political compromise. UNHCR is of the opinion that a number of its standards fall below international refugee law standards. We will continue to seek its improvement. UNHCR is at present implementing a large project, funded by the European Refugee Fund, reviewing how the Asylum Procedures Directive is applied in 12 EU Member States. We hope that the outcome of this project will be useful in determining where the main problems are, and how they can be rectified. Even with its shortcomings, this Directive also breaks new ground, since the 1951 Refugee Convention does not provide guidance as to how asylum procedures should be conducted.
As to the Returns Directive, this is clearly an area where standards are needed. Conditions under which persons are detained pending removal and conditions under which removals are effected are important human rights issues. Indeed, UNHCR has long expressed concern about the absence of standards for administrative detention of foreigners, an issue which is not regulated in the same way as criminal detention, for which very clear standards apply. While we welcome the effort to define standards in this area we still have concerns relating to the scope of the Directive. As you mention, the proposed safeguards would not necessarily cover people in transit zones or border areas. Moreover, States have discretion to decide not to apply the Directive to persons who entered the EU in an irregular manner. This means that it would not apply to many persons. We also do not believe that rejected asylum-seekers should be held in detention if there are no realistic prospects of removal. We are therefore concerned about the possibility to detain such persons for up to 18 months. We are further concerned that the re-entry bans which the Directive permits could make it impossible for people who might need protection in the future to seek asylum in the EU Member States.
Ü Eurasylum: A legislative proposal to establish a European Asylum Support Office (EASO) was recently published. The EASO will provide adequate support, including structural and financial support, for the development of practical cooperation measures between Member States in the field of asylum procedures. In its Recommendations to the French EU Presidency, your agency has called for a “substantive and well-defined role” for UNHCR within this Support Office, in view of UNHCR’s mandated functions. Can you outline the particular areas and methods of intervention for UNHCR’s future role in this Support Office?
Ü Pirkko Kourula: UNHCR welcomes the European Commission’s proposal to establish a European Asylum Support Office. We hope that such an office will help ensure more consistent and better quality asylum decision-making. Asylum-seekers of similar backgrounds and profiles have widely varying prospects of finding protection in different Member States of the EU. For asylum-seekers from countries such as Iraq, Somalia or Afghanistan, for instance, these prospects can vary from 0 per cent to over 90 per cent depending on the Member State in which they lodge their application. In some cases, people in need of protection are not recognized as such, due to the narrow approach taken by some States to key issues, such as protection needs of people fleeing situations of generalized violence.
We believe that a European Asylum Support Office can strengthen practical cooperation and the sharing of good practice among Member States. This should help to narrow differences between States’ approaches to the application of EU asylum legislation and ultimately result in more consistent, fair and effective asylum systems across the EU. The EASO will need the mandate and resources to enable it to help States to address many concrete challenges.
UNHCR is ready and willing to co-operate with a future European Asylum Support Office, in a manner consistent with our mandate. The proposed Regulation on the EASO, as tabled by the European Commission recently, would allow for a substantial role for UNHCR, including a non-voting seat on the Management Board. This is very welcome. UNHCR could also provide the services of experts, contributing to comparative analysis of the practice of States, or offer its expertise regarding conditions in asylum-seekers’ countries of origin or countries through which they traveled. Based on UNHCR’s supervisory responsibility regarding implementation of the 1951 Refugee Convention, we believe we are well placed to collaborate with a future Support Office to ensure that the Common European Asylum System develops in line with international refugee law and high standards of protection.