Observations by
The European Council on Refugees and Exiles
on

THE SEPTEMBER 1998
REVISION OF THE AUSTRIAN PRESIDENCY’S
STRATEGY PAPER ON MIGRATION AND
ASYLUM POLICY

General Remarks

ECREis extremely disappointed with the level of amendment in the revised version, which continues to undermine existing refugee protection standards. After such well-argued rejection from specialist NGOs, respected academics, UNHCR, the media and – significantly – governments of other Member States, we hoped and indeed expected that an effort would be made to fundamentally rethink the Paper’s approach.

ECRE does at least welcome the additional references to the Treaty of Amsterdam. The Amsterdam agenda must form the essential strategic framework for future EU policy. We also welcome the deletion of any reference to the replacement or amendment of the 1951 Convention, the additional paragraph 98 regarding refugee integration, and the reference to the possibility for consultation with NGOs (Par 45). There are also some additional paragraphs which appear to respond to accusations, addressed to the earlier draft, of euro-centricity (Par 31) and blurred distinctions between migrants and refugees ( Par 51). However, these paragraphs do not succeed in answering our concerns on these issues, and we would note with particular objection the new reference to „an asylum application” as an „entry ticket” (Par 51), which stigmatises all asylum seekers as potential immigrants in disguise and with fraudulent intent. It is up to host States to ensure that asylum seekers whose applications are properly rejected are not allowed to stay as de facto immigrants. It is, in other words, a problem of exit, not entry.

Key Concerns

1. The main cause of refugee flight in the 1990s remains persecution. Therefore the conclusion of the Paper that the 1951 Convention is „geopolitically outdated” (Par 44) and unable to cover the nature of modern refugee movements is incorrect, and in any case based on an incorrect understanding of national and international jurisprudence of the past decade and UN guidance on implementation of the Convention. The vast majority of refugees fleeing from „inter-ethnic conflicts” and „persecution by others than the State…” are protected by the 1951 Convention, and any other assertion is misleading (Par 104-5). ECRE strongly recommends that all references to such categories being generally beyond the scope of the 1951 Convention should be removed from the text.
2. Closely related to the above errors, the paper persists in arguing for an overall shift from legal to political decisions. The change of terminology from „political offer” to „institutional offer” (Par 106), involving the establishment of a separate procedure for such political decisions, is not reassuring to ECRE. We are concerned that any increase of discretionary powers will undermine the due process and the justice of decisions. While welcoming the new version’s recognition that any institutional offer of asylum to persons in need of international protection should be a complement to, not a substitute for, the existing legal framework, ECRE now wonders exactly what significance the proposed „complementary system” (Par 43 – 44) really retains. Complementary elements already exist within the current system and are under-utilised (eg. resettlement quotas now operating in only four EU countries), or are already on the EU table (eg. the Commission’s two proposed Joint Actions regarding temporary protection and a solidarity scheme). However, with regard to those persons whose claims do not fall within a correct interpretation of the 1951 Convention but who nevertheless require protection under the European Convention on Human Rights or for other humanitarian reasons, we can see no justification for dealing with the determination of such claims in an entirely separate or less rights-based system (Par 107). This would merely involve additional costs for host States and additional complications for refugees. ECRE recommends that the small numbers of persons who are in need of protection for non-Convention reasons should receive an alternative status, similar to that of refugee status, at the end of the same procedure, and that the Strategy Paper should remove all references to dispensing with legal safeguards.
3. ECRE believes that statements such as „One objective must be to allow only those who take the legal path to immigrate and integrate” (Par 67) fail to take account of the realities of refugee flight. In the 1980s-90s, restrictive migration control has exacerbated the problem of asylum seekers being forced to rely on traffickers and the use of false documentation in order to exercise their right to seek asylum. Refugees are, in many cases, unable to apply for a visa from their national authorities without putting themselves at serious risk, and therefore must resort to illegal movement. While relieved to see that paragraphs 93 and 111 have an added precision regarding protection of asylum seekers from refoulement, we remain concerned that the overall approach is unchanged (ie: „Management [of entry control] begins in the country of origin…” Par 87). ECRE recommends that an important proviso should be added to the Strategy Paper: that asylum seekers who enter illegally must be protected from penalisation, with explicit reference to Article 31 of the 1951 Convention.

Conclusion

ECRE welcomes the deletion of the Operational Plan of the Strategy Paper. However, we do not believe that the Paper is a sufficient basis for any future EU „action plan” on asylum policy (nor for implementation guidelines). A better balance between the legitimate interests of Member States and the protection needs of refugees needs to be struck, and ECRE was glad to find this balance contained in Commissioner Flynn’s Communication in 1994, and the Commission’s recent Communication ‚Towards an Area of Freedom, Security and Justice‘ (14 July 1998). These texts, as well as the Treaty of Amsterdam’s agenda in Article 73 and the Council ‚Resolution on laying down priorities for co-operation in the field of justice and home affairs for the period from 1 January 1998 to the date of the entry into force of the Treaty of Amsterdam‘ (28 July 1997), should form the basis for such any action plan.