Preliminary observations by UNHCR on the
Austrian Presidency Strategy Paper
on Immigration and Asylum Policy

1. UNHCR has not so far received a formal request from the Austrian Presidency to comment on the paper. The Office, therefore, is not yet in a position to comment in detail on the text. In the following, some preliminary observations are set out on some key elements of the asylum-related parts of the paper.
2. UNHCR welcomes the Presidency initiative to analyze migratory movements and related policy orientations from a comprehensive perspective. In response to a similar initiative undertaken by the EU Commission in 1994, UNHCR has stated its firm belief that policies with regard to prevention, preparedness, protection and durable solutions are inter-linked, and, indeed, need to be considered in a comprehensive manner.
3. UNHCR, however, would be concerned if asylum policy and its protection dimension were to be subordinated to the political, security and socio-economic dimensions of migration policy, as the Presidency paper appears to suggest.
4. In the context of a long-term strategy primarily aimed at reducing migration pressure and control of illegal immigration, the Presidency paper proposes a new refugee protection regime in Europe, based, inter alia, on the presumption that the 1951 Convention and existing asylum procedures are no longer suitable to today’s needs, primarily to combat abuse of the right of asylum. Such a new asylum regime could, the paper suggests, take the form of a political offer, based on a quota system, rather than a subjective individual right based on a legal instrument. The paper proposes that the 1951 Convention may need to be supplemented, amended or replaced by instruments or policies which would address more effectively today’s reality of asylum-seekers, many of whom are fleeing inter-ethnic violence, internal armed conflict and civil war – although the paper appears to overlook the fact that many of today’s asylum-seekers continue to seek protection from persecution for reasons set out in the 1951 Convention.
5. The paper also suggests that asylum procedures are no longer adequate, too costly and too complicated, and that any asylum-seeker arriving in an irregular manner should be removed to a third country outside the EU, a policy which UNHCR believes may violate the principle of non-refoulement. Furthermore, the paper is critical of the fact that Convention status refugees appear to settle permanently in the host country whereas they should be encouraged to return home within a foreseeable period of time. Programmes for the long-term integration of refugees, according to the paper, should be implemented only if these are socially acceptable. It, however, should be recalled that the 1951 Convention includes cessation clauses which enable a refugee to return home as soon as he or she can re-avail him/herself of protection there.
6. UNHCR acknowledges that the 1951 Convention may have to be supplemented with other legal instruments in order to address the protection needs of an increasing number of asylum-seekers who cannot be protected under the 1951 Convention. The Office, however, believes that the 1951 Convention is still a perfectly valid and viable legal instrument to address the protection needs of persons fleeing, inter alia, internal armed conflict, ethnic tensions, civil war or persecution by non-state agents, provided these needs meet the criteria contained in the „refugee” definition in Article 1 A of the 1951 Convention.
7. While the 1951 Convention does not preclude the prima facie determination of refugee status for groups of persons, in adhering to their obligation to respect the principle of non-refoulement, European states, with the support of UNHCR, have created asylum systems based on an individual processing of each asylum claim. Asylum can also be offered to larger groups of persons within the framework of existing (temporary) protection. UNHCR supports efforts to ensure that such arrangements have a solid legal basis, and would be concerned if these were governed by considerations of political expediency or migration control.

(UNHCR Brussels)

September, 9th 1998