Standing Committee of the Executive Committee
of the High Commissioner's Programme
(29th Meeting)
9-11 March 2004

Agenda Item 3 (ii) (d)
NGO Statement on Europe

Thank you, Mr. Chairman.

This statement has been drafted in consultation with, and is delivered on behalf of, a wide range of NGOs.

When Secretary-General Kofi Annan addressed the European parliament in January this year, he described the European Union as a shining light of tolerance, human rights, and international cooperation. The prospect of enlargement on 1 May, when 10 new members join the Union, was, he said "the greatest force for peace on the European continent."

But bright lights often cast dark shadows. Mr. Annan described how debates on illegal immigration in Europe have resulted in immigrants becoming "stigmatised, vilified, even dehumanised." The distinctions between asylum seekers, illegal immigrants and other migrants are often lost in the murk of the xenophobia of some of our media and politicians.

The Secretary-General offered his advice on Europe's asylum system. It needs "the resources to process claims fairly, quickly and openly, so that refugees are protected and solutions found for them," he said. "European States need to move towards a system of joint processing and sharing of responsibilities. Along with others, the EU must also help strengthen the capacity of poor countries to provide protection and solutions for refugees."

Responsibility-shifting

Regrettably, in 2003, EU member states continued to show more enthusiasm for controls on illegal immigration than for ensuring that refugees are protected and solutions found for them. Far from sharing responsibilities for refugees, even between EU states, let alone with poor countries, the emphasis was on shifting responsibility.

We have chosen, in this statement, to focus on burden-shifting, but before illustrating the measures that may effectively shift responsibilities, it is important to draw attention to the region's biggest ongoing conflict. Chechnya continues to produce large numbers of refugees and IDPs. Humanitarian space is essential to support IDPs inside Chechnya and provide safety and protection to people wishing to stay in Ingushetia. The protection of people of concern must be a continued priority, together with the search for durable solutions.

We note the need for the protection of humanitarian workers. We regret that our MSF colleague, Arjan Erkel, is still missing after being kidnapped in Dagestan in August 2002 and call for efforts to secure his release to be redoubled.

Dublin II and EURODAC

We welcome the attention drawn by UNHCR to the impact of the Dublin II and EURODAC regulations on the new EU countries. European States far from the Eastern and Southern borders are already expressing satisfaction with the number of 'hits' achieved on the fingerprint database and their enhanced ability to transfer those asylum seekers to EU states they have transited. The result is a clear shift of responsibility away from States with developed and well-resourced asylum systems to those European States with developing asylum systems.

This shift of responsibility may have already begun by other means. According to UNHCR's strategic presentation, the number of asylum-seekers dropped 21% in Western Europe in 2003. In the 10 accession countries, the number went up by 16%. UNHCR is to be congratulated on its work to support strengthening the asylum systems in those countries. It might be that countries that used to be viewed as transit countries by asylum-seekers are now being viewed as final destinations. A stronger factor might be that the border control and interception measures required for EU membership are beginning to bite. We are deeply concerned to learn from UNHCR's strategic presentation that one of the reasons for the low recognition rate in those countries is the financial burden of supporting recognised refugees. We encourage UNHCR, the EU and other countries to assist with expertise and funding those countries facing challenges in the integration of recognised refugees.

As we have heard from the director of CASWANAME, the EU's border control and interception agenda plays a strong part in its relations with countries to the South, as well as to the East. The EU is shifting responsibility for management of its external borders to the South, as well as to the East. We share UNHCR's concerns that the readmission agreements between the EU and North African countries offer few safeguards for the identification and protection of asylum seekers and refugees.

Harmonisation

Turning to the remaining elements of the first stage of the process of harmonisation of EU member states asylum policies: we supported UNHCR's strong intervention on the procedures directive towards the end of 2003. With the May 1st deadline for agreement almost upon us, the draft provisions in the directive of greatest concern to NGOs are those where proposals on the table deny asylum-seekers access to asylum procedures and facilitate their transfer to countries outside of the EU. These provisions risk violating European and international human rights obligations. They could include:

• "safe third country" provisions that would allow the transfer of asylum seekers to countries with which they have no meaningful link, and may not have even transited. Some European states may view these provisions as providing a legal basis for the kind of 'protection zone' idea that created such controversy last year;
• "super safe third country" provisions that would allow the removal of asylum seekers to countries bordering the EU without any individual assessment of their cases;
• "non-suspensive" appeals for applicants from some countries who would be stripped of the right to remain in the EU state pending their asylum appeal and whom at least one member state wishes to strip of the right to remain pending an appeal against expulsion.

We are also concerned that the draft directive may offer States the scope to detain almost all asylum seekers, in contravention of the principle of not detaining asylum seekers other than in the most exceptional circumstances and in likely violation of the right of all migrants under international law to be free from arbitrary detention.

Regionalisation

Finally, we wish to address the policy of 'regionalisation' of refugee protection that has been pursued by a number of European states for some years and which resurfaced to some controversy in the first half of 2003. While the most objectionable element of the UK's proposals was abandoned - 'transit processing centres' on the fringes of Europe - the policy objective, for a number of EU states, of 'protection in the regions' remains very much alive. Of course, it is to be welcomed if Europe recognises the need to do more to support developing countries that shoulder the lion's share of responsibility for refugee protection. Indeed, the Secretary-General urged the EU to help poor countries strengthen their capacity to provide protection and solutions for refugees.

One durable solution - resettlement - has so far not been given the priority by Europe that it has elsewhere. NGOs would welcome the establishment of an EU resettlement programme, provided it is not seen as a substitute for the right to seek asylum. NGOs look forward to the Communication that the European Commission is preparing on this as a follow-up to the Thessaloniki Council's conclusion on the need to explore ways of "ensuring more orderly and managed entry into the EU" and "ways and means to enhance protection capacity of regions of origin".

While 'regionalisation' policies may have some welcome aspects, it is clear from recent press reports of approaches from the UK to Tanzania and South Africa that the long-term objective for some EU states (the UK is far from alone in this) remains to shift the responsibility for some of their asylum seekers to states near the asylum seekers' countries of origin. In this context, we are concerned that the development of the concept of 'effective protection' may be driven in an unhelpful direction by those who wish to provide a legal basis for responsibility-shifting. Earlier drafts of the procedures directive have used the term "effective protection" in the context of safe third countries. Until recently, a safe third country was defined as one that had ratified the 1951 Convention and observed its provisions "with respect to the rights of persons who are recognised and admitted as refugees." As the Procedures Directive is currently drafted, it must simply "respect the principle of non-refoulement". We believe that 'effective protection' goes well beyond simple non-refoulement: refugees cannot be considered to enjoy 'effective protection' if they are simply warehoused in camps. We count on the High Commissioner to resist any moves to define the concept of 'effective protection' restrictively. We have an excellent basis for the definition of 'effective protection,' one that has stood the test of time. It is the 1951 Refugee Convention, together with existing international human rights commitments.

Transfer of asylum seekers

Friday's Forum will provide an opportunity for more discussion of this topic, but we should like to note that Kofi Annan's "new vistas for international cooperation on migration" or "migration partnerships" as some call them, must not be used as yet another means of responsibility-shifting. Migration management must be based on a human rights framework. In particular, we call upon the High Commissioner and members of this Committee to confirm that the sole objective of Convention Plus agreements must be to enhance protection and achieve durable solutions for refugees: the transfer of asylum-seekers should play no part in such partnerships.

To conclude, the Secretary-General had a warning for Europe in the speech quoted above. Mr. Annan said, "when refugees cannot seek asylum because of offshore barriers, or are detained for excessive periods in unsatisfactory conditions, or are refused entry because of restrictive interpretations of the Convention, the asylum system is broken and the promise of the Convention is broken, too."

Mr. Chairman, Europe is stretching the asylum system, occasionally in good directions, but more to the detriment of refugee protection; the risk is that at some point it will break. We urge representatives of European states in this room to keep the promise of the Convention; we call upon the rest of you to hold them to it.

Thank you