Human Rights Watch World Report 1997 - The right to asylum in the European Union

Human Rights Developments

The number of persons seeking asylum in Europe continued to decline in 1996. Following a record number of applications in 1992, European states imposed strict visa requirements on the nationals of most of the world's refugee-producing countries. Largely due to these restrictions on entry into Europe, the number of asylum applications filed in the first six months of 1996 fell to an eight-year low. The rate at which European states recognized asylum seekers as refugees under the Geneva convention relating to the status of refugees remained low, with many countries pursuing increasingly restrictive interpretations of their obligations under the convention. For example, in the first six months of 1996, excluding refugees accepted under the UNHCR's resettlement quota program, Norway recognized only five asylum applicants as convention refugees. Although many of the European Union (E.U.) member states also granted temporary protection regimes and residence permits on humanitarian grounds, these alternative categories of protection often accord asylum seekers fewer rights and benefits than those available under the convention. Those asylum seekers who, notwithstanding entry restrictions, reached Europe and applied for asylum faced a variety of additional barriers. Asylum seekers who had what were deemed "manifestly unfounded" claims and those coming to Europe through "safe third countries" to which they could be returned were subjected to accelerated screening procedures. Many asylum seekers placed in these categories were detained, received inadequate information and assistance for navigating the asylum procedures, and were either denied a right of appeal or deported before a decision was reached on their appeal. In the U.K., the home secretary introduced legislation to extend application of accelerated procedures to all asylum seekers from countries on its "white list," proposed to include Bulgaria, Cyprus, Ghana, India, Pakistan, Poland and Romania. Application of "safe third country" rules continued to place many asylum seekers in jeopardy of ultimate refoulement because most E.U. member states made little effort to ensure that the returned asylum seeker would be able to seek asylum in the third country. Moreover, as E.U. states returned asylum seekers to their eastern and southern neighbors through which they had transited, these "safe third countries" increasingly implemented "safe third country policies" of their own. Many asylum seekers expelled from E.U. territory allegedly bounced from "safe third country" to "safe third country" and, in some cases, were ultimately returned to their country of origin. In a major setback for asylum seekers, the German constitutional court held in May 1996 that restrictions on the right of asylum adopted in 1993, including a "safe third country" policy and limitations on the right to appeal, do not violate the German Basic Law. Detention of asylum seekers in Europe was a persistent problem in 1996. Detention was most often employed in the cases of asylum seekers with uncertain identities or nationalities. The trend in many countries was to detain asylum seekers for increasingly long periods of time. In May 1996, the Belgian parliament adopted legislation providing for renewable two-month periods of detention for asylum seekers whose asylum application had been rejected. Both the United Kingdom and the Netherlands constructed new facilities in which to detain rejected asylum seekers and illegal immigrants. In many European countries, asylum seekers were detained in unsatisfactory, prison-like conditions for extended and sometimes indefinite periods of time. In Sweden, notwithstanding repeated complaints by the European Committee for the Prevention of Torture and government-appointed advisory committees, the authorities persisted in detaining asylum seekers in remand prisons, integrated with the criminal population and subject to the same strict prison visitation and recreation regime, in at least one case for as long as ten months. The Netherlands held rejected asylum seekers awaiting deportation at its Koning Willem II detention facility, widely criticized in 1996 for its allegedly arbitrary and excessive disciplinary regime. The primary purpose of increased detention is to ensure that asylum seekers whose applications are denied can be expelled. In 1996, a number of European countries stepped up efforts to expel rejected asylum seekers and illegal immigrants. Threatened expulsions were the subject of hunger strikes, demonstrations, and suicide attempts throughout Europe. Activists claimed that many expulsions split families in violation of the right to respect for family life and imposed other forms of hardship on long-term residents of European states. Methods of expulsion employed by several European states also drew criticism in 1996. On several occasions, authorities were reported to have used excessive physical restraint and administered sedative drugs to resistant returnees. There was also widespread use of group expulsion to countries where human rights activists claimed the high-profile practice could draw attention to and endanger the returnees. The fate of more than 700,000 asylum seekers from Bosnia-Hercegovina residing in western Europe continued to dominate political agendas in 1996. The Dayton peace plan signed in December 1995 identified the early return of refugees and displaced persons as an "important objective" of the peace process. By late January 1996, Germany, which shelters more than half of the Bosnian refugees in western Europe, had already announced plans to terminate temporary protection as of June 30, 1996, and to commence repatriation of refugees immediately thereafter, with a goal of repatriating 200,000 Bosnians by July 1997. Although conditions in Bosnia-Hercegovina forced Germany to abandon this initial plan, it subsequently set October 1, 1996, as the date after which the Länder (lands or states) could forcibly repatriate Bosnians. Switzerland also announced plans to begin the aggressive repatriation of Bosnian refugees in mid-1996, though repatriation had not occurred as of this writing. Other countries took a more generous stance toward Bosnian refugees, refusing to set a strict timetable for return and agreeing to pursue only voluntary repatriation in cooperation with the UNHCR. As a practical matter, implementation of large-scale repatriation proved impossible in 1996 due to the slow pace of reconstruction and on-going violations of human rights. (See section on Bosnia-Hercegovina) Nonetheless, because of these repeated threats of imminent repatriation, many Bosnians in western Europe lived under considerable stress and insecurity throughout 1996.

The Role of the International Community

European Union

The European Union's efforts to harmonize asylum policies in 1996 continued to reinforce restrictive trends in member states' policies. On March 4, 1996, the Council of Ministers formally adopted a "joint position" on "the harmonized application of the definition of the term ‘refugee' in article 1 of the Geneva Convention of 28 July1951 relating to the status of refugees." Reinforcing restrictive jurisprudence in France, Germany, Italy, the Netherlands, and Sweden, the joint position suggests that protection should be given only to those persecuted by state agents or with the encouragement or permission of state agents. This interpretation of the convention could be used to deny protection to, for example, Algerians whom the government cannot protect from persecution by insurgents or Somalians fleeing circumstances in which the government has collapsed altogether. The UNHCR strongly criticized this aspect of the joint position, describing the interpretation as contrary to the letter and spirit of the Geneva convention. The joint position constitutes a non-binding political commitment by the member states, and in September the Swedish government proposed reform of its asylum law that would depart from both its past practice and the E.U. joint position by providing protection for victims of persecution by non-state agents, regardless of government complicity. It remains to be seen to what extent the joint position will be implemented by the other member states. In support of member states' efforts to increase expulsion of rejected asylum seekers and illegal immigrants, in December 1995 the Council of Ministers adopted a "recommendation of concerted action and cooperation in carrying out expulsion measures." The recommendation listed principles to govern coordinated expulsions and identified measures to obtain cooperation from states to which third-country nationals are to be returned. In September 1996, the European Parliament adopted a resolution criticizing the council for its failure to consult the parliament on the December 1995 recommendation, deploring expulsion practices in certain member states (France, Spain, and Belgium, in particular), and calling for a "thoroughgoing study into the legislation and practices on expulsion and removal policies in the Member States of the European Union." There was some progress in 1996 toward complete ratification of the 1990 Dublin convention, detailing rules by which one and only one member state of the European Union would be responsible for adjudication of an asylum application. The convention must be ratified by all member states before it can be implemented. Ireland and the Netherlands, the only two states that had not yet ratified the convention, were expected to do so by late 1996 or early 1997. In the meantime, in March 1996, a subset of the European Union member states celebrated the first anniversary of the entry into force of the Schengen convention, which also established rules for determining the state responsible for each asylum application. There were continued reports, throughout 1996, that the applications of asylum seekers sent to "safe third countries," both inside and outside Europe, were frequently not considered in the third country, sometimes resulting in refoulement. In numerous cases, adjudicators of the British Immigration Appeal Authority found insufficient evidence to conclude that other European countries, including France and Belgium, could serve as "safe third countries." Such decisions raise significant doubts about whether the "safe third country" rules embodied in member states' legislation and the Schengen and Dublin conventions comport with international commitments to safeguard against refoulement. The "safe third country" rules and other aspects of European asylum procedures were the subject of a critical resolution adopted by the European Parliament on November 14 in response to the Council of Ministers' 1995 resolution on minimum guarantees for asylum procedures.
This report covers the events of 1996

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