Director for the Bureau for Europe,
United Nations High Commissioner for Refugees
A concise assessment of recent EU asylum policy and legal
developments, and of UNHCR’s European activities
Ü Eurasylum Ltd: Whilst the number of asylum applications lodged in the European Union has been stagnant, or in slight decline, since the early 1990s, many of the new EU member states, which are not traditional countries of asylum, will be likely to experience a gradual increase in their asylum figures as a result of the Dublin II Regulation. How would you assess the degree of adequacy of asylum systems and resources in the new member states to support the processing of an increasing number of applications while securing adequate standards of reception services, determination procedures and protection? And could you describe some of UNHCR’s recent and on-going activities aimed at increasing and improving capacity in the field of asylum policy in these countries?
Ü Raymond Hall: The number of asylum-seekers arriving in Europe has indeed been in sharp decline in recent years. In 1992, around 680,000 people claimed asylum in the 25 states that now make up the EU. Last year, the number was under 350,000. Over the first half of 2004, the numbers have fallen by 18-20% as compared to the same period last year. The total number of asylum claims is now on a par with that in 1990. Nevertheless, the burden of asylum applications is unevenly distributed amongst EU Member States. While new EU legislation will change existing patterns, it will not lead to the kind of responsibility and burden sharing that is needed to turn Europe into a coherent asylum space. Quite to the contrary.
According to the logic of the Dublin II Regulation, which sets out the country responsible for an asylum claim, the majority of the burden is, in theory at least, likely to fall on States through which asylum-seekers enter the Union. Obviously, those most affected will be States at the external border of the EU and these include a considerable number of new Member States. While there are questions about how effective the Dublin II Regulation will be in practice, its impact is likely to be enhanced by the database of fingerprints established under the EURODAC Regulation, which will make it easier to identify where asylum-seekers have first been registered.
The trend can already be seen. According to our statistics, the numbers of asylum-seekers registered in the new Member States rose in the first half of 2004, with the most significant increases recorded in Poland (34%), Slovakia (52%), and Cyprus (90%). The numbers are still not high in absolute terms, but it must be kept in mind that the asylum capacities in the new Member States are very limited. Some of them currently only have 10 or 15 asylum assessors. A decade ago they had no asylum systems at all.
UNHCR has worked with the new Member States since the early nineties to establish asylum systems, and continues to do so to help the authorities and NGOs to increase their expertise in managing asylum claims and in processing them in a fair and efficient fashion. The asylum systems in these countries nonetheless remain fragile. If large numbers of asylum-seekers are sent back from other EU countries, the systems of new Member States could easily be overwhelmed. And if procedures in these countries are pushed to the point of collapse, the result is likely to be more instead of less irregular movement between EU States. If that happens then Europe’s new harmonised legislation may simply create a new set of problems.
In UNHCR’s view, the European Union needs to move beyond current efforts at harmonisation to a truly common asylum system in which standards, responsibilities and burdens are shared. Such a system, we argue, would not only be to the benefit of refugee protection but would also be in the best interests of States, who could thereby manage more coherently, rather than merely react to, the challenges posed by mixed flows of asylum-seekers and migrants. We have put forward specific proposals in this regard. The initial focus should be on practical efforts to enhance existing harmonisation and reinforce support to fledgling asylum systems in border States, including through the sharing of expertise and the secondment of personnel. Gradually, resources could be pooled and collectivised until finally a fully fledged EU asylum system with its own institutional underpinnings is established. This need not be implemented all at once, since the political will is clearly not there for that. So we would like to see if it is possible to proceed in phases, starting with measures to enhance practical cooperation and burden-sharing, particularly with States likely to be overwhelmed by the numbers of asylum-seekers. An EU asylum office could be set up to monitor and possibly coordinate such actions.
Ü Eurasylum Ltd: Recent EU directives, particularly the Qualification, Procedures and Reception directives, have aimed to extend the scope for protection, and to strengthen asylum determination procedures, throughout the European Union. They have, in particular, extended eligibility to persecution from certain non-state actors, introduced the notion of gender-based persecution, fixed minimum levels of social benefits and health care services, reinforced the notion of subsidiary protection and contributed to a gradual strengthening of reception facilities and administrative procedures in all the member states. Despite such developments, UNHCR has often expressed strong reservations about the directions taken by recent EU policy and legislative initiatives, particularly as regards the criteria and use of the safe third country concept, and issues of removal and appeals. Could you summarise, briefly, your current perception of the key strengths and weaknesses of recent EU legal and policy instruments in the field of asylum?
Ü Raymond Hall: UNHCR has been strongly supportive of the harmonisation process, although it is no secret that we have had a number of misgivings, some serious, about the results achieved. Agreement on the Asylum Procedures Directive was reached after prolonged and difficult negotiations, just within the deadlines set by the Treaty of Amsterdam and on the eve of accession to the EU of ten new Member States on 1 May this year. It thereby represents the conclusion of a first phase of harmonisation through the setting of minimum standards, as foreseen at the Tampere Summit in 1999, when the European Council called for a common asylum system to be developed.
In this first phase, the EU has adopted or agreed four Directives and two Regulations in the area of asylum. The Directives set out minimum standards on temporary protection in situations of mass influx, reception conditions for asylum-seekers, the definition and status of refugees and persons in need of complementary or subsidiary protection (the so-called Qualification Directive), and last, but not least, the Asylum Procedures Directive. The two regulations are the Dublin II Regulation and the EURODAC Regulation. Additionally, some of the instruments adopted under the Migration Agenda also have an impact on persons in need of international protection, such as the Directive on family reunification. Overall, while by no means negligible achievements, it cannot be said that they measure up to the ambition of the 1999 Tampere Summit to achieve “an open and secure European Union, fully committed to the obligation of the Geneva Refugee Convention and other relevant human rights instruments, and able to respond to humanitarian needs on the basis of solidarity”. There are obvious reasons for this. The issue of illegal immigration, together with heightened concerns over international terrorism, have moved the asylum issue up national political agendas, complicating both the political and public debate and, by extension, negotiations at the European level.
Nevertheless, there have been significant achievements. UNHCR has welcomed the Directive setting minimum standards on temporary protection and the common EU regime that it establishes for situations where there is an actual or imminent mass influx of persons in need of international protection. The Directive on reception conditions for asylum-seekers also ensures that certain minimum standards are met, including with respect to health care, education, and documentation and guidance provided to asylum-seekers. UNHCR has regretted, however, a number of derogations, stand-still clauses and exceptions outlined in the Directive, which could be used to deny reception facilities to asylum-seekers. But it is the so-called Qualification Directive and the draft Asylum Procedures Directive that go to the core of UNHCR’s mandate and of international protection. Here, UNHCR’s assessment is considerably more reserved. There are provisions in the Directives that are positive. UNHCR welcomes, for instance, the explicit recognition of persecution by non-state-agents contained in the Qualification Directive. But, in some other important ways, the Directives represent, in the view of UNHCR, a missed opportunity to adopt high standards that fully reflect agreed international standards and best practice. As a result of the latitude permitted by the text of the Asylum Procedures Directive for national interpretations and derogations, there is a danger, in practice, that there may be breaches of international law and standards, notably in relation to the application of the so-called safe third country concept and appeals without suspensive effect. Member States will now need to ensure that national legislation provides for at least the minimum standards contained in the Directives within two years of their entry into force. Where transposition is required, it should be kept in mind that the Directives are intended to set minimum standards only and should not be read as a prescription for convergence around the lowest common denominator.
UNHCR, in accordance with its supervisory role under its Statute and under Article 35 of the 1951 Convention, intends to offer assistance and constructive input to governments in the process of transposition, in line with international norms and best practice. It has already issued annotated versions of the Temporary Protection and the Reception Conditions Directives, and plans to produce similar editions of the Directives on Qualification and the Asylum Procedures. These can serve as guides to interpretation for legislatures or courts, by setting out UNHCRs analysis and comments upon the provisions, article by article. UNHCR will, moreover, seek to work closely with Governments in identifying and adopting policies and measures which could increase the efficiency of national asylum systems, without compromising principles of fairness. This would include efforts to improve the quality of asylum decision-making, monitoring of borders and border procedures, and efforts to inform and educate the public on asylum issues.
Finally, it is clearly not enough for the European Union to harmonise legislation and policies. It also needs to harmonise practice. It is difficult to argue that current harmonisation efforts are sufficient when, for example, the recognition rate for Chechen asylum-seekers varies within the European Union from over 90 percent in some countries to close to zero percent in others. It is not the new EU legislation that will solve this, which brings us back to the need for a truly common asylum system.
Ü Eurasylum Ltd: UNHCR has recently tabled a series of proposals relating, for example, to the establishment of centralised reception centres, and to the establishment of an EU asylum agency and an EU asylum review board. To what extent do you consider that the next round of harmonisations under Tampere II (now also referred to as the Hague Programme) will be conducive to a truly common European asylum system and how will UNHCRs contribution to the decision-making process evolve since exclusive right of legislative initiative in the field of asylum was transferred, in May 2004, to the European Commission?
Ü Raymond Hall: As a new agenda is devised for the second phase in the development of the EU asylum system, UNHCR strongly urges the EU to focus on further responsibility and burden-sharing among Member States and reinforce the right to seek and obtain asylum in Europe. The European Council, which is foreseen for 5 November 2004, will be important in developing guiding principles for the next phase. As mentioned earlier, UNHCR has made a range of recommendations as part of its input to the Multiannual Programme in Justice and Home Affairs. Further, there are a number of outstanding issues to be resolved. Member States are still required to agree on common lists of safe countries of origin and so-called super-safe third countries. UNHCR is closely following negotiations on these lists and will also carefully monitor the way in which these notions are applied. The European Union is also further examining the possible introduction of a single asylum procedure at the national level, which would consider all needs for international protection in one procedure. UNHCR has repeatedly encouraged such an approach, which, in our view, would serve to increase efficiency of national asylum systems, without compromising fairness, and would ensure decision-making by a single competent body. It will be important, however, also to ensure that such a single asylum procedure not be agreed on the basis of the lowest possible standards. Work is also continuing in setting standards related to long-term residence and mobility within the Union of persons recognised to be in need of international protection.
With completion of work on the Amsterdam agenda, the process of decision-making on asylum issues will change. While all Member States to date have had, in essence, a veto right on all issues related to asylum, decisions in future will be taken by qualified majority, in accordance with the Nice Treaty. The European Parliament will also have a greater role to play in the process, as will the European Court of Justice. These changes should facilitate adoption of new instruments in future and open up possibilities for progress in the direction of a truly common asylum system, as is foreseen in the Tampere Conclusions and provided for in the Constitutional Treaty. This is much needed to ensure the coherent and protection-sensitive management of asylum throughout the Union and to avoid the danger of competitive lowering of standards for the purposes of deterrence, which is neither in the interests of refugee protection nor in that of the community of Member States. Given its supervisory capacity in relation to the implementation of the 1951 Refugee Convention, UNHCR hopes to continue to work closely with the EU Commission and Member States in elaborating and developing the next phase of the EU common asylum system.