EU-COMMISSIONER ON ASYLUM POLICIES: EVASIVE AND CONTRADICTORY
The following piece is an excerpt from the Scottish Refugee Council's analysis of EU Commissioner Flynn's Communication to the Council and European Parliament on Immigration and Asylum Policies (Brussels, 23.2.94; see FECL No. 23, p. 3). Among other things, the author, Stan Crooke, also comments on the practice of temporary protection.
Proposals put forward by Commissioner Flynn for the further reform of asylum-related policies fall into three categories: those so vague as to be largely meaningless; those subsumed under the broader heading of "taking action on migration pressure" (section III.2); and specific proposals relating to the concept of "temporary protection".
The first category covers a series of apparently innocuous proposals lacking any real substance. There is a need for "the harmonisation of the application of the definition of ``refugee'", which, in turn, requires the development of "general indicators with regard to legal aspects of the concept of refugee" and also the development of "country of origin related indicators" (paragraph 83).
The Commissioner also recommends: "examination on an individual basis" of asylum applications deemed to be manifestly unfounded (paragraph 85); consolidation of the concepts of manifestly unfounded applications and the third host country "by way of a Convention" (paragraph 86); giving consideration to "the possibility of defining objective criteria for fairness and efficiency" in assessing asylum claims (paragraph 87); establishing criteria for efficiency on the basis of "access and duration of the various stages of the asylum procedure" (paragraph 88); laying down criteria for fairness in relation to "appeal rights and reception conditions" (paragraph 89).
Certain of the Commissioner's proposals, vague as they are, clearly represent a further step backwards as far as the rights of asylum seekers are concerned. Anchoring the concepts of manifestly unfounded applications and the third host country in a Convention, for example, would merely add to the already noted problems caused by the application of such concepts in the course of asylum procedures.
In the context of a political atmosphere permeated by hostility towards asylum seekers and refugees the "harmonisation" of the application of the definition of a refugee would clearly involve a levelling downwards. The Commissioner, it can be safely assumed, does not have in mind calling on EU Member States to recognise women as members of "a particular social group" (as is the case in Canada), to recognise lesbians and gays likewise as members of "a particular social group" (as is the case in America), or to recognise draft-dodgers and deserters as eligible for refugee status in line with the recommendations of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.
Similarly, in talking of criteria of fairness with regard to "reception conditions" it is equally safe to assume that the Commissioner is not making a veiled call for the abolition of the increasingly widespread practice of detaining asylum-seekers. In fact, the word "detention", replaced as it is by the euphemism of "reception conditions", does not appear anywhere in the Communication.
The proposals advocated by the Commissioner in paragraphs 83-89 of the Communication are basically a call for "more of the same" - more harmonisation,, more efficiency, and more fairness. However, whilst the asylum policy reforms implemented in recent years by EU Member States have achieved greater harmonisation, and may also have achieved greater efficiency (at least in terms of the criteria laid down by the authorities), they have certainly not created a fairer system for dealing with asylum applications. On the contrary, asylum policy reforms have been geared towards restricting the rights of asylum seekers and would-be asylum seekers rather than towards treating them more fairly. A call for "more of the same" on the part of the Commissioner is therefore tantamount to a call for a further deterioration in the rights of asylum seekers.
In proposing action on migration pressure (within which fall factors precipitating large-scale refugee flows, as well as other forms of migration) Commissioner Flynn puts forward a series of proposals: "the preservation of peace and the termination of armed conflicts; full respect for human rights; the creation of democratic societies and adequate social conditions; a liberal trade policy, which should improve economic conditions in countries of emigration; the effective use of the appropriate volume of development aid . . . ; co-ordination of action in the fields of foreign policy, economic co-operation and immigration and asylum policy by the Community and its Member States" (paragraph 50).
Such proposals overlap with the "comprehensive policy" advocated by the UNHCR itself as a new approach in dealing with the issue of large-scale refugee-flows: "A comprehensive policy must, therefore, be one that seeks to prevent the deterioration of conditions to the point where people are forced to flee. It must meet their needs for protection and assistance in flight and in asylum. It must also promote the resolution of problems and contribute to the safety and welfare of the refugees in the early stages of repatriation or settlement" ("The State of the World's Refugees". UNHCR, 1993).
No-one could object to many of the Commissioner's proposals as they stand on paper - preserving peace, ending armed conflict, respecting human rights, creating democratic societies and adequate social conditions, etc., etc. How far the EU Member States can be relied upon to implement such proposals is, however, another matter, and certainly not addressed by the Commissioner in the course of his Communication.
In relation to the conflict in Bosnia - to use the example which the Commissioner himself refers to in dealing with the concept of "temporary protection" - it is difficult to make out any serious commitment of EU Member States to "preserving peace and terminating armed conflicts".
However laudable the Commissioner's proposals for "taking action on migration pressure" may appear on paper, no confidence can be placed in the EU Member States to put such proposals into practice. The form of action adopted by EU Member States in order to control refugee movements generated by the war in Bosnia has not been the defence of democracy but rather the imposition of a visa regime on Bosnian nationals. Their primary motive in doing so has been to prevent refugees from reaching Europe, not to prevent people from becoming refugees in the first place.
Temporary protection
"Temporary protection" is virtually the only asylum issue dealt with in any detail in the Communication. Commissioner Flynn describes it as "one of the most important developments since 1991" (paragraph 24). It is "indeed to be welcomed as a positive step to deal with mass influx situations" (paragraph 83). The Commissioner believes that he has "seen the future, and it works" - or at least he thinks that it does in terms of his own dubious criteria.
According to the Commissioner, "temporary protection" has emerged as a way of "avoiding an over-burdening of asylum procedures in cases of mass-influxes" (paragraph 24). Indeed, it is to be welcomed precisely because it has prevented "a massive recourse to asylum procedures" (paragraph 93). It is difficult to believe that this is the same Commissioner who writes elsewhere in the Communication that "it is by definition impossible to curb the number of refugees to whom Member States are required to give protection."
Moreover, no such arguments about the over-burdening of asylum procedures were raised in 1956, for example, when Western European countries effortlessly accepted 200,000 refugees from Hungary after the defeat of the Hungarian revolution. So what has changed in the meantime?
In an attempt to reconcile the practice of "temporary protection" with the argument that the number of refugees in need of protection cannot be curbed, the Commissioner implies that "temporary protection" is used only in relation to "persons who, although they may not fulfil the definition of a refugee as laid down in the Geneva Convention, require protection" (paragraph 54). "Temporary protection" thus appears as an act of selfless generosity on the part of EU Member States, bestowed upon people who do not actually qualify for recognition as a refugee in terms of the 1951 UN Convention but who nonetheless are accorded protection, albeit temporarily, by EU Member States.
But this argument hinges upon whether or not those granted "temporary protection" actually qualify for recognition as refugees under the 1951 Convention. It is difficult to understand, for example, how a war refugee who has been a victim of "ethnic cleansing" should not be accorded recognition as a refugee in line with paragraph 165 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.
Yet it is precisely such victims, or potential victims, of "ethnic cleansing" and other war crimes in Bosnia who are currently being granted "temporary protection" rather than refugee status. The introduction of the practice of "temporary protection" therefore represents a regressive measure in the development of asylum policies rather than something "indeed to be welcomed as a positive step".
Commissioner Flynn calls for the harmonisation of existing "temporary protection" schemes in the different EU Member States "with a view to elaborating a uniform European scheme for temporary protection; the legal rights of people who have been granted temporary protection; and the period of time after which the admission for long-term stay should be granted" (paragraph 94).
Even allowing for the positive value of the last of these proposals, the Commissioner's programme for harmonisation nonetheless fails to remedy the overall retrograde character of the concept of "temporary protection". In practice, "temporary protection" is used as a way of denying refugee status to those entitled to it whilst at the same time avoiding the danger of a public backlash. The situation of those accorded "temporary protection" is one of permanent uncertainty in which planning of the future is impossible, as there is no way of predicting the point in time when the "temporary protection" will be withdrawn.
The granting of "temporary protection" to someone does not automatically remove their right to apply for refugee status under the United Nations Convention of 1951. However, the limited rights accorded to those granted "temporary protection", in contrast to the lack of rights of ordinary asylum seekers, effectively discourage the former from applying for asylum. In France, for example, those granted "temporary protection" are allowed to work, whereas asylum seekers are not. Similarly, in Britain those granted "temporary protection" as Programme Refugees are entitled to family re-union (unlike asylum seekers) and are also entitled to a higher rate of welfare benefits than asylum seekers.
The fact that Commissioner Flynn welcomes the concept of "temporary protection" should not, in the light of the contents of the Communication as a whole, come as any surprise. Nowhere in the Communication does the Commissioner address the fact that the very concept of asylum is now under attack in the EU Member States. Instead, he misrepresents such an anti-refugee offensive as a matter of "harmonisation", "efficiency" and "fairness". He is equally economic with the "actualités" in his treatment of the concept of "temporary protection". In presenting yet another attack on asylum rights as "one of the most important developments since 1991" (in fact, it is - but not in the sense meant by Commissioner Flynn) and a "positive step", the Commissioner is merely running true to form.
Stan Crooke
Contact: Scottish Refugee Council, 73 Roberston Street, Glasgow G2 8QD, UK; Tel: +44/41 2218793, Fax: +44/41 2481835