05/2006: Peer Baneke

May 2006

Peer Baneke
General Secretary of the European Council on
Refugees and Exiles (ECRE, London)


An NGOs assessment of recent EU initiatives on asylum
law, policy and practical cooperation


Ü Eurasylum Ltd: Since the early 2000s, the European Commission has promoted a range of financial instruments to help member states develop their asylum and migration systems according to the principles of solidarity and responsibility sharing within the EU, and with a view to achieving the objectives and standards of a Common European Asylum System. The main cooperation programme in the field of asylum has consisted of the European Refugee Fund (ERF) which, since 2000, has supported the development of appropriate reception, integration and voluntary repatriation measures in the EU member states. In its Communication of April 2005, on Establishing a framework programme on Solidarity and the Management of Migration Flows for the period 2007-2013, the Commission has further developed a coherent set of proposals to provide financial support to the development of adequate EU migration and asylum systems over the next seven years. In particular, the framework programme has proposed the provision of financial solidarity mechanisms (funds) under four thematic areas: (i) controls and surveillance of external borders and visa policy; (ii) return of third country nationals residing illegally in the EU; (iii) integration of third country nationals residing legally in the EU; and (iv) asylum. Since 2000, NGOs have been the main implementing agencies of reception, integration and voluntary measures promoted under the European Refugee Fund, and of other measures supported under related EU programmes such as EQUAL. Could you discuss, briefly, ECRE’s assessment of the key benefits and challenges, for central government authorities and for NGOs, of recent and on-going financial cooperation efforts in the field of asylum and refugee policy?

Ü Peer Baneke: The new framework programme on Solidarity and the Management of Migration flows, in particular the increase in the budget, is much needed to underpin the second stage of harmonisation of asylum policy. With the accession of ten new EU Member States in 2004, some of which have less developed asylum systems, greater financial solidarity and more strategic support for the creation of a common European asylum system is needed to ensure that asylum systems throughout Europe offer high quality protection. A positive element in the framework is also the possibility for multi-annual programming, which we believe will reduce some of the problems associated with very short project cycles, in particular difficulties with conducting proper follow-up of projects and mainstreaming successful projects into regular activities.

Having said that, we have serious concerns about the imbalance in the proposed budget with relatively large allocations for external borders management (36% of the total budget) and the return of rejected asylum seekers and illegal immigrants (13%), compared to the budget for reception conditions, asylum procedures, refugee integration and voluntary return combined (20%). In addition, ECRE is disappointed that the Integration Fund (30%), as it stands, will not be targeted to refugees.

We fear that the money for external borders management will in effect be used to make it more difficult for refugees to access asylum procedures in Europe, which means that people fleeing for their lives and liberty will be forced to take ever greater risks. ECRE and its member agencies do not dispute that governments have the right to return asylum seekers whose claims have been correctly rejected following a fair asylum procedure. However, in view of procedural deficiencies in the asylum systems and restrictive interpretations of the refugee definition, we cannot assume that this is currently the case. Therefore, we feel that the emphasis in the budget should be on improving asylum procedures, in particular the first decision, and that voluntary returns should be prioritised over forced returns.

From 2008, it will no longer be possible for the ERF to fund returns of asylum seekers whose applications have been rejected. But how will this work in practical terms considering the fact that voluntary return programmes provide services to both groups? ECRE has welcomed the increasing extension of assistance to asylum seekers whose claims have been rejected through voluntary return programmes by states. The EU Return Fund should therefore be able to support the provision of such assistance to this extremely vulnerable group. Asylum seekers whose applications have been rejected increasingly find themselves destitute due to policies of withdrawal of support, aimed as incentives to return. Helping this group to undertake safe, dignified and sustainable returns would be more humane and more effective.

According to the Commission, one of the reasons for not including refugees in the Integration Fund is that refugee integration is supported by the European Refugee Fund (ERF). However, national governments are responsible for deciding which percentage of their ERF allocation will be reserved for integration and which portions for asylum procedures, reception and return. In practice, national governments may decide only to allow a very small portion to be reserved for integration. When the Integration Fund does not allow refugees to be included in the target group, there is a clear threat that the integration of refugees at a national level will neither be part of the Integration Fund, nor of the ERF. At least it should be clarified that refugees can be included in projects for the whole target group, even if specific projects only for refugees were not. In the long term, refugees will benefit more from the much bigger sums of money available for integration and social inclusion in the mainstream funds particularly, via the ESF.

ECRE notes with approval that the multi-annual programmes shall be elaborated by the Member States in consultation with relevant partners, including non-governmental organisations, before finally being approved by the Commission. In our view, this will enhance the involvement of project promoters and other stakeholders in the setting of national ERF priorities, and add much needed European steering to ERF actions, ultimately contributing to a better coordination of a Common European Asylum System.

To support this proposal, ECRE calls for the creation of small Advisory Committees at the national level, whom the national ERF authority can consult with on the focus and priorities of the Fund, as well as draw on for policy development support. These Advisory Committees could include, apart from government officials, representation from UNHCR, local authorities, voluntary organisations, academic institutions and the social partners. In particular in countries where there has traditionally been less of a dialogue between the authorities and the voluntary sector, these Advisory Committees would be important. An added advantage of Advisory Committees made up of potential project promoters is that this would strengthen the Member States ability to set priorities for the Fund based firmly on refugee needs and expertise on the ground, and therefore would also be likely to result in project applications that are better able to meet those needs.

Across Europe, NGOs have done highly successful work on the reception, integration and voluntary return of refugees under the framework of the ERF, INTI and EQUAL, providing vital services for refugees and asylum seekers. Nevertheless, in many countries, NGOs, and in particular Refugee Community Organisations, have difficulties in accessing or managing these funds, because of difficulties in finding matching funding, the elaborate procedures and late payments.

Finally, ECRE argues that more budget should be allocated to much needed pan-European projects in order to allow for real comparative studies on asylum issues, projects aimed at developing operational guidelines for implementing EU asylum directives, and conferences to exchange experiences and examples of good practice.

Ü Eurasylum Ltd: The EC Communication of 14 June 2004, on Improving Access to Durable Solutions, made a series of proposals for the development of a new EU approach to the international protection regime. This included the establishment of Regional Protection Programmes, designed to enhance the protection capacity of the regions involved and to encourage the development of durable solutions (repatriation, local integration or resettlement) in the regions of origin. In its Communication of 1 September 2005, on Regional Protection Programmes, the Commission presented an action plan to enable such programmes to be tested in one or more regions. These pilot programmes were to draw on a range of measures, such as assistance to third countries to comply with international obligations under the Geneva Convention and other relevant international instruments; measures to enhance the protection capacity and to promote better access to registration and local integration; and assistance for the improvement of local infrastructure and migration management procedures. The development and implementation of these programmes were also to be based on close cooperation with UNHCR and, where appropriate, other international organisations. As a result of this Communication, two pilot programmes are currently being tested in Ukraine, Moldova and Belarus, and in the Great Lakes region. In December 2005, ECRE issued a paper entitled Guarding Refugee Protection Standards in Regions of Origin, in which it discussed, inter alia, the EU initiatives on regional protection, and in which it outlined an agenda for responsibility-sharing and solidarity on international protection. Could you sum up the key conclusions and recommendations of this ECRE paper on regional protection?

Ü Peer Baneke: Let me firstly say that ECRE’s paper on protection in regions of origin is one component of a broad range of proposals which we have published under the title The Way Forward: Europe’s role in the global refugee protection system – An Agenda for Change. This Agenda for Change is aimed at promoting a more positive debate in Europe and better co-operation between all the relevant stakeholders, including policy-makers and NGOs. The European Parliament has now gained a more powerful decision-making role in EU asylum policy. Over the next months ECRE members throughout Europe will discuss the Agenda for Change with their MEPs.

The Agenda puts forward 25 positive recommendations, including to:

– help developing countries strengthen their ability to protect refugees;

– create resettlement programmes in each European country, leading to a Europe-wide resettlement programme;

– improve asylum determination procedures in Europe and ensure that the Common European Asylum System enhances refugee protection through genuine cooperation;

– invest early in integration; and

– support people to return safely and in dignity.

One of ECRE’s key conclusions is that states should improve protection in Europe as well as in other regions. The EU should set an example to the world through its refugee protection systems. We want to make very clear that any support offered in other regions cannot substitute the obligations of European countries to protect refugees who make their own way to Europe.

But the need for countries of first asylum in regions of origin to be supported to improve protection standards offered to refugees is as pressing as ever and as the EU has increasingly grown interested in addressing refugee protection beyond its borders (the so-called external dimension), we felt it important to also set out the framework within which we felt such activities should develop  one which essentially is firmly based on existing international law.

One of ECRE’s key recommendations in its paper Guarding refugee protection standards in regions of origin is that Europe should indeed help strengthen protection in regions of origin. Over 70% of the world’s refugees are in poor, developing countries. Refugees mainly flee to neighbouring countries that often struggle to cope with the influx of people, who are frequently not granted their rights and are left with inadequate support for long periods of time. European states should help to build capacity in these regions through training and technical and financial assistance.

However we are concerned that human rights standards always be at the forefront of actions to improve protection. European assistance should help ensure that people do not have to wait many years to gain access to proper protection and durable solutions. If refugees are to access protection that is effective they must enjoy the rights flowing from the relevant international and regional refugee and human rights instruments:

– The guarantee of non-refoulement, as the essence of refugee protection and part of customary law, is, in this context, the first essential step towards ensuring protection is available.

– Refugees must enjoy all their civil and political rights and not only rights such as freedom from torture, cruel, inhuman or degrading treatment or punishment, or the right to life.

– Economic, social and cultural rights are essential to the enjoyment of protection and other human rights. States restricting the economic rights of refugees are not providing them with protection that is effective.

– The right to legal protection (including access to a legal status and necessary documentation) should last for as long as international protection is required and until a durable solution ensues, to which new legal protection rights would be attached.

– Particular attention should be given to the needs and rights of vulnerable groups, including women, children, the disabled and older persons, in accordance with the relevant international human rights instruments.

At the same time we recommend in our paper that governments in regions of origin be encouraged to sign up to and comply with relevant international and regional refugee and human rights instruments, including of course the 1951 Refugee Convention and the 1967 Protocol. For example, it is essential for European states to accede to and comply with the European Convention on Human Rights (ECHR). We acknowledge that accession to such instruments alone does not prove that a country is providing protection that is effective for refugees on its territory, but we believe that it can be an important indicator of a state’s political will to do this and can help UN bodies exercise their supervisory functions.

NGOs therefore welcome the EU’s pilot regional protection programmes (RPPs) in sub-Saharan Africa and the Western Newly Independent States, with a view to setting up programmes in other regions. This represents a positive first step, but we would underline that the funds available for projects submitted within the two pilots (Euros 4 million) is inadequate and that expectations of the programmes must be proportionate to this level of funding. Focusing any future programmes on regions of origin rather than regions of transit would also reinforce the programmes  intended protection focus.

ECRE also welcome the fact that resettlement is included as a component of the EU’s proposed Regional Protection programmes. However the framework does not guarantee that resettlement will feature within the activities actually funded for each region. We believe that to exclude resettlement from either pilot RPP would undermine the programmes’ objective for these to help third countries become ‘robust providers of protection’. It would also seriously underestimate the benefits of resettlement as an international protection tool, as an important responsibility-sharing measure and, not least, as a way of improving and opening up the asylum space in first countries of asylum. Ultimately the EU’s actions to improve protection in regions of origin and improve access to durable solutions must be in undertaken in the spirit of responsibility-sharing, not shifting.

Ü Eurasylum Ltd: The EC Communication on Strengthened Practical Cooperation on asylum, adopted in February 2006, outlined a series of recommendations to help member states to develop an EU Single Asylum Procedure; a joint approach to Country of Origin Information (COI); and an adequate response to particular pressures on asylum systems and reception capacity resulting from factors such as geographic location. The Communication proposed, in particular, the establishment of an asylum cooperation network, to enable the member states asylum services to pool expertise and resources and to develop joint approaches to procedural and information gathering aspects of decision-making on asylum claims. It also recommended the definition of a common tool box for asylum authorities of the member states, to respond to the day-to-day and operational needs of practitioners in the EU. Could you outline ECRE’s assessment of the key measures reviewed in this Communication, and discuss their anticipated potential to strengthen the protection capacity of the EU member states along adequate, international standards?

Ü Peer Baneke: ECRE anticipated the Commission’s Communication with its paper Towards Fair and Efficient Asylum Systems, released in September 2005, which sets out a range of practical proposals on training and accreditation of decision-makers, the common provision of reliable and accurate country of origin information (COI), monitoring teams to assess the quality of asylum determination procedures, and expert support teams to provide training and extra resources where required. ECRE believes that states, UNHCR, NGOs and other independent experts should work together to reduce current disparities in the quality of national asylum systems by sharing expertise, information and best practice. The Communication from the Commission therefore represents an opportunity to create a more level playing field following the limited progress made by the first phase asylum instruments in achieving the harmonisation objectives expressed at Tampere and reiterated in the Hague Programme. However, important questions remain about the implementation of this programme if it is to genuinely strengthen the protection capacity of EU states along adequate, international standards. Of pivotal importance is that existing structures such as Eurasil, or new structures such as the Asylum Cooperation Network, operate in a democratic, transparent and accountable manner.

Initiatives must contain proper reporting functions, including oversight by the European Parliament. Activities must also involve independent experts, for example working groups tasked with creating a common tool box or identifying best practice in relation to the development of a single procedure, and expert support teams set up to address particular pressures felt by certain Member States. The key to better decisions is transparency and monitoring. ECRE would therefore additionally support the creation of independent monitoring mechanisms to identify gaps in existing decision-making procedures and the appropriate training and extra resources needed to fill these gaps. A successful model for this approach already exists in UNHCR’s Quality Initiative launched in collaboration with the UK government. A key area under the practical cooperation programme will be to develop the provision of relevant, reliable, accurate and transparent COI, which is crucial for a fair and efficient asylum determination process. This will require UNHCR and independent experts to be consulted in the first stage setting up a common COI portal and drawing up common guidelines. Eurasil or the proposed Asylum Cooperation Network would not by themselves lend a sufficient degree of transparency, nor make use of the depth of independent expertise already available in this area. ECRE considers that ultimately the collection and provision of common EU COI should be independently managed, thereby reducing the need for debate about the general situation in countries of origin and enabling a more efficient focus on the individual asylum seeker’s situation.