U.S. Committee for Refugees and Immigrants World Refugee Survey 2005 - European Union

Refoulement/Asylum  In October, Italy summarily deported to Libya more than 1,000 asylum seekers from the island of Lampedusa without allowing them to seek asylum, placing them in danger of refoulement. It only granted the Office of the UN High Commissioner for Refugees (UNHCR) access to the island after it had already deported them and relocated 500 others. Both countries denied UNHCR access to the asylum seekers. Libya was not party to the Convention Relating to the Status of Refugees (1951 Convention) and refouled 110 other asylum seekers from Eritrea.

In April, the EU's Justice and Home Affairs Council adopted a Qualification Directive on the minimum criteria for refugee status and subsidiary protection (for persons not covered by the 1951 Convention). This was part of an asylum harmonization process for rules member states intended to adopt in their national legislation by October 2006 although members could generally keep or enact stronger protections of asylum seekers. Denmark had opted out of the process altogether, while the United Kingdom and Ireland had negotiated an opt-out clause.

If implemented, the Qualification Directive would permit refoulement on security grounds, include persecution by non-state actors as a criterion for asylum, and allow states to deny asylum if they deemed protection by the UN or NATO to be available in the country of origin. It would clarify as immaterial whether or not applicants actually possessed the characteristic for which they feared persecution as long as the persecutors attributed it to them. As grounds for subsidiary protection, the Qualification Directive listed capital punishment, torture, and "serious and individual threat to a civilian's life or person by reason of indiscriminate violence in...armed conflict." Those who engaged in "particularly cruel actions, even with an allegedly political motive," were excluded from protection.

In May, the ten new EU members in eastern and southern Europe joined the rest of the EU, Switzerland, Iceland, and Norway, in the Dublin system of allocating responsibility for asylum seekers (see World Refugee Survey 2003, p. 176) based on the assumption that asylum systems in Europe were comparable in protecting refugees. There were, however, wide variations in asylum rates in the EU for similar cases. By October, Slovakia granted asylum to just two ethnic Chechens from the Russian Federation out of nearly 1,100 cases it decided, even as other EU states granted about half of such cases. Greece granted asylum to less than one percent of Iraqi applicants when Saddam Hussein was in power and fewer since. In the first six months of the year, Greece granted asylum or humanitarian protection to just over one percent of applicants compared to an overall grant rate of 21 percent in the EU the year before.

In July, Germany's interior minister, Otto Schily, suggested placing processing centers in North Africa, a proposal the United Kingdom had made earlier. The EU concluded an agreement with Libya in August to reduce illegal migration, lifted its arms embargo on the Country in October, and asked the European Commission to present a study on joint processing outside the EU in consultation with UNHCR.

In November, the Council of the European Union (the Council), consisting of the heads of EU member states, reached a general agreement on asylum procedures (Procedures Proposal) and planned to complete a directive on itin 2005, which would complete the first stage of the harmonization process. If it were implemented, members would be able to deport asylum seekers to countries that the members deemed safe, even if the applicants had never actually been there, if it would be "reasonable" for them to go there, there were an unspecified "connection" between the applicant and the country, and there would be the "possibility ... to request refugee status and to receive protection in accordance with the [1951 Convention]" in that country; but the third country need not actually have ratified or implemented the 1951 Convention.

As the Procedures Proposal did not specify all the rights of the 1951 Convention, there would be no guarantee that third countries would not simply warehouse the applicants even if they did not refoule them. The burden of proof would be on asylum seekers to challenge the third country's safety on grounds that they "would be subject to torture, cruel, inhuman or degrading treatment or punishment" there. If applicants entered a member state illegally from a safe third country, the member could deport them with no hearing on the merits of their claim, and could transfer them at the border to European countries outside the EU, such as Russia, Ukraine, and Belarus. Members could also designate portions of countries of origin as safe.

The Council could not agree on a list of safe countries but decided that, after consultation with the European Parliament, it would adopt a common list of countries that "shall be regarded" as safe countries (emphasis added). Not only would this constitute a mandatory dilution of protection, rather than a minimum standard, but the Council intended to adopt it by "qualified majority" rather than by consensus. The European Council on Refugees and Exiles criticized these provisions and the entire concept of generically safe countries as fundamentally flawed, noting that "refugee law is not about what happens generally, it is about the protection needs of individuals."

The Procedures Proposal would only require members to provide translation to applicants in "a language they may reasonably be supposed to understand," rather than one they actually understand. Members could deport applicants while appeals were pending even though in several European countries half or more of initial denials were subsequently overturned on appeal. Members could skip the interview altogether under a sweeping array of exceptions, including a finding that applicants' written submissions were "clearly unconvincing" because they included "inconsistent, contradictory, unlikely or insufficient representations," even if the applicants lacked counsel in preparing the complex forms.

Also in November, the Council initiated the Hague Programme for the second stage of asylum harmonization, including common border protection and foreign policy regarding asylum and migration. It called for "capacity building" pilot programs in regions of origin before the end of 2005 and support for national asylum systems in transit countries "that demonstrate a genuine commitment to fulfil their obligations under the [1951 Convention]," but attached no such condition on aid to regions of origin.

Detention  Malta detained asylum seekers as long as 18 months in overcrowded conditions, and mixed women and children with unrelated men. This treatment led to escapes, protests, and, in January 2005, a peaceful sit-in at the Safi detention center. In response to the sit-in, Maltese solders in full riot gear attacked the protesters, kicking and bludgeoning some with batons as other soldiers held them to the ground. Twenty-six required hospitalization, including some with broken bones and head injuries. Malta initially barred UNHCR legal staff from visiting the victims.

The Procedures Proposal would prohibit states from detaining applicants solely because they applied for asylum, but it would allow states to detain applicants for four weeks if they entered the EU illegally.

Right to Earn a Livelihood  The Qualification Directive would allow refugees to work on par with nationals but would allow EU members to discriminate against beneficiaries of subsidiary protection in favor of nationals "for a limited period of time." A 2003 Reception Directive would allow members to bar asylum seekers from employment for one year from application, require only that members "decide the conditions" for access to the labor market thereafter, and permit members to discriminate against applicants in favor of nationals.

Freedom of Movement and Residence  The Qualification Directive would give refugees and beneficiaries of subsidiary protection no greater freedom of movement than that of other foreigners. The Reception Directive would permit confinement of asylum seekers to assigned areas.

Public Relief and Education  The Qualification Directive stipulated that members should grant refugees public relief, but would allow members to limit aid to beneficiaries of subsidiary protection to "core benefits." The United Kingdom's 2002 Nationality, Immigration and Asylum Act barred those who do not apply for asylum "as soon as reasonably practicable" from the National Asylum Support Service.

Copyright 2005, U.S. Committee for Refugees and Immigrants