OBSERVATIONS BY
THE EUROPEAN COUNCIL ON REFUGEES AND EXILES
ON

THE AUSTRIAN PRESIDENCY OF
THE EUROPEAN UNION’S
STRATEGY PAPER ON IMMIGRATION AND
ASYLUM POLICY

General Remarks

Firstly, ECRE would like to welcome the direct language of the Strategy Paper’s text. This will facilitate dialogue between governments and refugee advocates. For example, NGOs have long criticised an „exclusive concentration on restrictive measures” (Par 16) in the EU agenda, an analysis which we now find to be confirmed in the Paper. Similarly, although several EU States have recently amended their asylum legislation to include widened definitions, ECRE has observed that the current level of political and moral courage for humanitarian action is at a very low mark, and again this is confirmed by the Paper: „No European country today would consider going it alone in opening up the right to asylum…” (Par 25). These starting points allow us to now discuss the future with greater clarity.

ECRE is also genuinely grateful to the Austrian Presidency for stimulating debate on a long term strategy. We agree that the absence of an overall strategy has been a major failing of the EU’s work on asylum and immigration, particularly over the past four years, and that Commissioner Flynn’s ‚Communication on Immigration and Asylum Policies‘, to which the Strategy Paper repeatedly refers, deserves renewed attention. We find the efforts of the present Paper to look comprehensively at the full continuum of asylum and migration, and to link the work of the Union’s three Pillars more closely together, to be commendable and timely. This period prior to the entry into force of the Amsterdam Treaty is crucial, not only for completion, but also for improvement, of the Union’s „fragmentary results” (Par 23).

Essentially ECRE would like to respond to the content of the paper by asking two questions: (1) Do we share the analysis? and (2) How does the analysis then determine the solutions? We would like to avoid the ‚NGO trap‘ of being critical without offering alternatives, and therefore conclude by offering a few broad indications of such an alternative strategy.

The Analysis

The Strategy Paper makes a number of assumptions about the nature of refugee movements in the 1990s which ECRE would like to question. The Paper is not extensively referenced to sources, and indeed these are not easy questions to answer empirically, yet this causal analysis lies at the very centre of the debate.

The Paper confuses the root causes of refugee movements with those of other migratory movements. In Pars 15 and 53, for example, reduction of „migration pressure” is linked to crisis prevention, but no distinction is made between the nature of the crisis in Albania, which was largely due to economic causes, and the crises in Kurdistan and Kosovo, caused by systematic violations of civil and political rights. Again, the term refugee seems to be carefully avoided in Par 62 where the „raising of human rights standards” is suggested as a way to assist „States producing the most emigrants”. The entire Paper would appear to be based on the assumption that refugee flows can be tackled by means of inter-governmental negotiation, and that the costs of asylum can be off-set by offering economic inducements to refugee-producing States. This overlooks the fundamental fact that asylum is a human right, not by accident included in the Universal Declaration, and therefore of a moral value which goes far beyond such international deals.

ECRE highly commends the introduction to Section 4 of the Paper, which states plainly that the only real form of preventive action in the asylum field is to work towards durable improvements in human rights situations. The enormous scale of this task is admitted. Par 37 refers to „co-operative transnational and comprehensive multi-disciplinary approaches” and ECRE would hope this means accepting that refugee crises must primarily be resolved through reduction of push factors, such as human rights violations, rather than simply the construction of more deterrent barriers. However, where the Paper mentions trade conditionality, it does so solely in the context of forcing the signature of readmission agreements and the tightening of migration controls (Par 59), rather than in relation to the human rights assessments of the Union’s trade and development policy.

The causes of refugee movements are described in the Paper as having shifted from „suppression by an authoritarian regime” to „inter-ethnic persecution and displacement by non-governmental power-brokers” (Par 26). The Paper further assumes that these latter grounds for flight are „not those set out in the Geneva Convention” (Par 99). While agreeing that the post-Cold War world has indeed seen an ever-growing number of ethnic and civil conflicts, ECRE would argue that such causes of refugee movements have long existed (for example, the religious conflict which led to the separation of Pakistan/Bangladesh), and still today European statistics show that the majority of refugees are fleeing persecution by authoritarian regimes (Iraq, Turkey and numerous other countries). Refugees from both situations can be protected by the terms of the Geneva Convention, which includes ethnicity (synonymous with ‚race‘) as a ground, and where the determination of whether there is a fear of persecution should be unbiased by the setting, be it a civil war or a repressive regime. Tens of thousands of Bosnians who fled the conflict and sought protection in Europe were thus found by EU Member States to qualify for refugee status under the Geneva Convention. Persons fleeing from persecution by non-State agents of persecution also fall within the terms of the Geneva Convention. What counts is the failure of national protection, not who persecutes. Within the European Union, only Austria, Germany and France have clearly refused to accept this international legal consensus. It seems ironic that Austria, having created a ‚protection gap‘ through this policy of consistently excluding persons fleeing „non-governmental power-brokers” from the refugee definition, should now point to the gap and call for a solution. In ECRE’s view there are enough real problems to deal with in the refugee field, without manufacturing these additional ones. The only rationale for this circular logic can be the wish to develop less binding, less rights-based instruments – a proposed solution to which we will return below.

The means of refugee admission to European territory is also explored by the Paper. ECRE appreciates the analysis in so far as it questions the extent to which the other push and pull factors acting upon global refugee and migratory movements can be counteracted merely by „border control, visa system, fixing of quotas, aliens police force, etc” (Par 29). Nevertheless the Paper as a whole seems to cling to the assumption that more and better deterrents are the only way forward – that the uncontrollable will ultimately be controlled. The Paper’s analysis of illegal entry and trafficking of persons as growing problems of the 1990s is an accurate one, but again ECRE would argue that it is a problem to which European Union policies have contributed. For years, NGOs have warned about pushing people into clandestine and often life-threatening channels if all legal entry channels are closed. It is the legitimate concern of States to control their borders, yet such control policies – if pursued in isolation – can be counterproductive. Thus the declining number of asylum applicants, mentioned in Par 11, may be explained not simply in terms of deterred fraudulent applicants, but also in terms of genuine refugees forced to remain in their country of origin, seek protection in other regions of the world, or forced to hide illegally and insecurely on European territory. It is impossible for us to verify this alternative explanation, as it is impossible to estimate how many victims of torture and persecution have been prevented from seeking asylum in recent years.

The Strategy Paper plans a further ‚crackdown‘ on trafficking networks and those who enter without legal documentation. The Operational Plan refers to „zero tolerance” of illegal entry (5.1 n). ECRE finds the failure of the Paper to acknowledge that asylum seekers must be exempt from penalties for illegal entry to be a major omission. This exemption is guaranteed by Article 31 of the Geneva Convention, which recognised that the refugees who escaped Nazi persecution had relied on traffickers and illegal routes (for example, Raoul Wallenberg or Oscar Schindler, or those fishermen who for a fee ferried Jews to relative safety during the War). To enter illegally implies nothing about the credibility of an individual’s claim to need asylum, and efforts to assist asylum seekers entering illegally need to coexist with efforts to control migrant trafficking. It is a difficult balance, and far more complex than presented in the Strategy Paper.

In Par 92, it is observed to be most efficient for States to return illegal migrants immediately: „A comprehensive system would undoubtedly be extremely helpful whereby in every case where the border is crossed in other than the appropriate manner the status quo is first restored – ie. the individual is put back on the other side of the border – and any procedures are initiated only after that has been done.” This could be interpreted to include the refoulement of asylum seekers arriving illegally, though it is hard to understand what „the other side of the border” would mean in the case of boat people arriving at the Italian coast. If this interpretation is correct, this is the single most dangerous statement in the Paper.

The exclusion of the vast majority of spontaneous asylum seekers would be combined, in the Paper’s strategy, with a general substitution of political discretion for legal certainty which would spell the end of asylum as a right. It is ironic for this proposal to appear in 1998, the 50th Anniversary of the Universal Declaration of Human Rights. The argument is made that the Geneva Convention has become outdated (Pars 27, 103 and 42, point 6). As explained above, this argument ignores the evolution of jurisprudence, particularly over the last decade, the official UN interpretations of the Convention, and confuses failings of implementation with failings of definition. The Strategy Paper thus shows a remarkable disregard for the merits of the present system, and for a Convention that has done far more than any other human rights instrument this century to save lives.

But, at same time, the strategy is also based on a remarkable nostalgia. It is nostalgia for a golden age of decision-making by political whim, unrestrained by legal process. It is literally „harking back” (Par 102) to the crudely politicised biases of many 1970s asylum decisions, or even further back to the pre-human rights law days of the 1920s. Not that any „political offer” to accept refugees is unwelcome, but there is absolutely nothing in the present system which prevents European governments, singly or in unison, from exercising such discretion. Par 44 of the UNHCR Handbook explains that group recognition is indeed a cost-saving option. Individual determination is not and never has been the „sole instrument” (Par 132) of refugee protection.

Therefore, as ECRE understands the proposal, a „transition from protection concepts based only on the rule of law to include politically oriented concepts” (Par 41) is intended primarily to permit forced returns and refusals of status to certain national groups. If this is the full extent of the proposed „restructuring” of international refugee law, then it is one in which we can find no advantages for refugees. We believe that enough political will remains among the European public, parliamentarians, and some Member States to protect the 1951 Geneva Convention and other refugee protection instruments from either restrictive amendment or abolition.

At several points the Paper is quite right to highlight the absence of good data, and to state that „What is required over the next year or two is to conduct analysis of the new challenges and of the developments over the past decade in protecting refugees and applying the Geneva Convention” (Par 125). ECRE believes that such independent analysis would produce a somewhat different picture from that presented by the Paper, with the emphasis on failure of implementation and self-inflicted bureaucratic obstacles. This in turn would lead to a quite different strategy.

None of the above is to say that the Union does not need a new system of ‚temporary protection‘ and a ’solidarity scheme‘ for the reception of refugees in Europe. ECRE fully supports the Paper’s calls for the European Commission initiatives in these two areas to be adopted by the Council at the earliest opportunity. On the other hand, we do not understand the Commission’s texts as offering a solution for all refugees fleeing „on grounds other than those of the Geneva Convention (particularly that of inter-ethnic persecution)…” (Par 98) and we would seriously question „the widely held idea” (Par 127) that non-Convention refugees require a shorter duration of protection than Convention refugees. The Commission Joint Action on temporary protection of displaced persons relates specifically to situations of mass influx, and is a means of protection precisely when it is impossible to determine the status of the individuals concerned. If the Austrian Presidency would like to prioritise the harmonisation of a status for those refugees who are determined to fall beyond a proper interpretation of the Geneva Convention, ECRE would refer to the work on subsidiary forms of protection rather than to the Commission’s work on temporary protection. The failure to tackle, as a priority, this need for a supplementary refugee definition for de facto refugees in Europe was ECRE’s only serious criticism of the Flynn Communication in 1994.

The development of new European standards, however, can not take place in total „independence” from other global standards (Pars 31, 42 and 54). While supporting the realism of the Paper where it describes as anachronistic the continued dominance of national interests in European decision-making on asylum and immigration (Par 39), ECRE nevertheless finds the paper as a whole dangerously euro-centric. European agreement on responsibility or ‚burden‘ sharing, for example, should not preclude global arrangements. Similarly, the Paper’s view of international relations as „concentric circles” (Par 60) is too static to be used as the basis of a new migration control system. It is assumed that refugees can never be produced within the inner circle (likewise assumed by the Amsterdam Treaty’s Protocol on Asylum), and that the causes of refugee crises correspond to the levels of economic development or can be controlled by States following a series of international negotiations. This is a short term and complacent approach, ignoring the fact that pre-war Yugoslavia, for example, was not the least developed country in the region. Nor is it so long since refugees fled from countries such as Greece or Portugal or since US draft evaders during the Vietnam War found asylum in Sweden. In other words, it is simply wrong to assume that refugees only come from poor countries. In the long term, as enlargement and political agreements move forward, the consequence of this approach will be to squeeze the viable ‚asylum space‘ in the world continually down in size.

Finally, ECRE can not fully support the Strategy Paper’s analysis of how pull factors work in relation to asylum. The assumption, in Pars 81 and 104, that the level of social support to asylum seekers is a major determinant in their choice of asylum country has been discredited by recent research of the European Commission. NGOs‘ thesis that geographical proximity, or cultural or community or family ties to certain host countries, or sheer chance are far more important factors seems to be supported by the evidence. Similarly, we would like to note that evaluation of return programmes to Bosnia, mentioned in Par 105, has clearly revealed how conditions inside Bosnia, primarily those relating to respect for minority rights, were infinitely more influential on voluntary return patterns than any host State’s financial incentive programmes. The average refugee may not be quite the market economist’s ‚rational actor‘ which the Paper assumes.

More broadly, however, ECRE supports a certain level of harmonisation in the social aspects of asylum, as recommended in the Flynn Communication and again in the Strategy Paper. Social integration is not a scarce resource that illegal migrants can ‚use up‘ (Par 28) leaving no space for refugees. Rather it is a dynamic process which inevitably implies change in the host community as well as the refugee community. The key to success in this process is not so much fiscal as political, and thus a Union-wide strategy for positive leadership of public opinion is absolutely vital. An understanding of actual psychological and social needs, such as the need for reunion with family (not necessarily just members of the western nuclear family), is also vital if successful integration of those refugees allowed to remain is a priority objective.

Conclusion

In conclusion, ECRE would like to emphasise that the philosophy of „Management [of immigration control] begins in the country of origin…” (Par 86) has far reaching consequences for refugees. In 1994, in response to the Flynn Communication, ECRE warned against protecting ourselves from refugees rather than protecting refugees themselves, and still in 1998 the tone of the new strategy remains primarily one of deterrence.

No overall objectives are stated at the outset or at the conclusion of the Paper, though several can be inferred, such as continuing to tightly limit levels of entry into the Union (both of migrants and refugees). No rationale is given for why this is a desirable end in itself. It is assumed to be the popular will of EU citizens, but ECRE would question whether the „citizen-oriented Union” envisaged at Cardiff (Par 32) need imply a Union that is xenophobic in character, and whether there is not greater scope for humanitarian action without creating uncontrollable pull factors.

Final Suggestions

If asked to offer a few alternative suggestions, ECRE would propose:

Restraint with regard to the imposition of visas on involuntary flows, and where necessary the temporary cessation of deportations and readmission agreements to crisis areas. Such policies would assist diffusion of tensions in these areas;

Measures to assist asylum seekers in gaining access to European territory and determination procedures, such as overseas processing where necessary;

Dismantling some of the asylum „business” (Par 102), though not the elements relating to due process and the rule of law. Rather, some of the inefficient and costly measures which have been increasingly utilised over the past decade (detention where non-custodial alternatives would work adequately, safe third country systems which lead to multiplication of procedures and detentions and returns, deportations where voluntary return programmes have not first been offered, imposition of visa controls on those fleeing from refugee producing situations, etc). Just as disarmament produces a ‚peace dividend‘, so too such a re-evaluation would produce a dividend to fund better reception facilities and legal aid etc.

Expansion of the use by European States of political offers in the asylum field, through temporary protection and resettlement programmes, as well as through other humanitarian offers. These offers should form an efficient compliment to well-established instruments, which in turn should be interpreted and implemented properly;

Completion of the ‚loose ends‘ of harmonisation, including improvement of previous third pillar measures, and the development of a supplementary refugee definition for those who truly fall outside the nexus of the Geneva Convention definition;

Integration policies based on diversity, non-discrimination, socio-economic rights and the rights of family reunion should be developed at the European level. Efficient return of all persons not in need of international protection is required, but Member States should create provision for the permanent residence of those who can not be returned for reasons beyond their own control;

Support for UNHCR should be re-established, as the most straightforward method of exercising global solidarity and in order to maintain the principle of universality in human rights, including the right to asylum. Future EU strategies should pay due respect to the history of the UN agencies and their expertise;

Member States should engage in dialogue with civil society on future strategies, and should take the earliest opportunity to remedy the democratic deficit which still exists within the European Union institutions in the field of Justice and Home Affairs.

ECRE Secretariat

4 September 1998