Strengthening Fortress Europe in Times of War

Strengthening Fortress Europe in Times of War
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Amnesty International commentary on UK proposals for external processing and responsibility sharing arrangements with third countries

Contents
a) Introduction
b) Summary of Concerns
c) UK proposal legally flawed
d) Undermining the Tampere commitments
e) Endangering international solidarity
f) Safeguarding the international protection system
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JHA informal Council, Veria, 28-29 March 2003

Amnesty International understands that the question of external processing of asylum applications will be at the heart of the discussions to be held at the Justice and Home Affairs informal Council on 28-29 March 2003. Although the idea of processing protection requests in the region of origin and facilitating the arrival of refugees on EU territory by a resettlement scheme has been on the agenda of the European Commission since November 2000 (1),
consideration of such propositions is suddenly being precipitated, with the agenda of the Veria Council being shaped in order to react to an initiative launched by the United Kingdom. Given the potentially far-reaching implications for the international protection system in the current climate of crisis, there is every reason to view this initiative very critically and to handle the debate with extreme caution.

The UK proposal appears to aim both at developing 'Regional Protection Areas' (RPAs) in countries in refugee-producing regions (such as Turkey, Iran, or Morocco) and off-territory 'Transit Processing Centres' (TPCs) located at the external borders of the European Union in countries like Romania, Croatia, Albania or Ukraine. We understand the primary focus of current discussions to be on establishing TPCs at the external borders of the EU, while Member
States may also consider the feasibility of establishing a common mechanism for determination of manifestly unfounded claims on EU territory. Although the shape of the UK proposal is currently quite fluid, at the core of the proposal remains the objective of reducing the number of
spontaneous arrivals in the UK and other Member States by denying access to territory and shifting asylum seekers to processing zones where responsibility, enforceability and
accountability for refugee protection would be diminished, weak and unclear. While the proposals might not explicitly envisage amendment to or withdrawal from the 1951 Refugee Convention, they would clearly represent attempts to circumvent important domestic and international legal instruments, including the Convention

Amnesty International has previously expressed its concerns to the UN High Commissioner for Refugees and to Member States of the UNHCR Executive Committee in Geneva.(2)

Amnesty International has over the years been consistently critical of the ever increasing difficulty for refugees to seek and find protection in the EU. It has expressed concern not only about aspects of the common European asylum system being developed that may violate international human rights and refugee law, but also about the effect the EU's overriding focus on keeping people out or sending them back inevitably has in undermining the international
protection system. An important element in the EU's orientation has always been to support the concept of reception and protection in the region. Amnesty International appreciates the desire of governments and the UNHCR to promote new and more effective ways of dealing with
mixed movements of refugees and migrants. However, we believe such efforts should be firmly based on principles of refugee law and human rights. The establishment of any responsibility-sharing mechanism must take into account international responsibility for the protection of refugees so that a regional approach to refugee protection does not undermine efforts carried out at international level for the protection of refugees world-wide and to find safe and durable solutions for them.

In that context, the UK proposal is controversial. It raises questions about legality in particular with regard to safeguards that would apply to processing not only in border regions, but also in the EU. Furthermore, a debate at this time risks undermining the objectives set out at the 1999
European Council of Tampere and may result in further downgrading the minimum level of protection defined under the first phase of the current harmonisation process. But perhaps even more importantly at this juncture, the proposal raises doubts about the political wisdom and propriety of pushing for "solutions" that appear to serve only the interests of rich countries,especially at a time when the war in Iraq may result in many people fleeing in search of
protection.

At this moment, any proposals that aim further to restrict the scope for the EU and its Member States to take a primary share in the responsibility to provide international protection will need to be handled with utmost caution. It must be recalled that only 5% of the world wide refugee
population is hosted in the EU. If the EU were to be seen to ignore the extraordinary burden that is carried already by countries in other regions, this may undermine their willingness to cooperate in providing protection to refugees, including those fleeing the Iraq and other conflicts. It is also appropriate to point out that the incongruity of such a debate at this time is sharpened by the fact that the present proposals were initiated by the one Member State that is
part of the military operations in Iraq.

Amnesty International therefore calls on Member States to take the opportunity of the Veria Council to develop a co-ordinated approach to ensure adequate protection of
refugees and support their humanitarian needs rather than exploring ways of shifting their responsibility to vulnerable states.

b) Summary of Concerns

Amnesty International has serious concerns about the proposed approach, on four grounds:

1. It raises questions about compliance with international refugee and human rights law.

2. It risks undermining current efforts, already strained and restriction-oriented, to shape a common asylum system for the EU.

3. Shifting people back to countries to other parts of or outside the EU, or indeed to regions of origin will disturb the already precarious balance of "responsibility sharing" and so undermine the international protection system.

4. It risks compromising the protection mandate of the UNHCR and undermining the international protection system.

c) UK proposal legally flawed

In Amnesty International's view the proposal is legally flawed. In addition to contravening the intent and purpose of the right to seek and enjoy asylum set out in the Universal Declaration of Human Rights and the 1951 Refugee Convention regime, it avoids binding obligations of
international human rights law. Even where the European Convention on Human Rights is concerned, the focus is not on compliance with the broad spectrum of human rights guarantees found in that instrument but only with the provision prohibiting torture and cruel, inhuman or
degrading treatment or punishment. The UK proposal is unduly restricting the scope of member states obligations regarding international human rights law. Such restriction is highly questionable at a time when the European Union is seeking to reiterate its attachment to fundamental values by
incorporating the Charter of Fundamental Rights into a new constitutional treaty.

It must be recalled that asylum seekers who arrive in the territory of a 1951 Refugee Convention state party engage its protection obligations under the Convention. Any attempt to restrict their movement or remove them from the territory must be in accordance with the standards found in the
1951 Refugee Convention and in international human rights law. Amnesty International has serious doubts about the legality of transferring persons to other countries for processing under the terms which the UK proposal envisages. These concerns apply not only to international refugee law, but also to international human rights law, given that significant human rights violations and accountability problems could arise in the course of or related to such transfers, as we have seen in the context of the 'Pacific solution' promoted by the Australian government.

Furthermore, involvement in the maintenance of the processing zones could seriously compromise the UNHCR's international protection mandate if it is, or is seen to be party to the removal of refugees from a territory where they would enjoy a higher standard of protection to one where the standards are likely to be lower.

d) Undermining the Tampere commitments

The UK proposal risks undermining the commitment made by European governments at the Tampere European Council where it was agreed to develop a common European asylum system based on a high level of protection and which would include a workable determination of the State
responsible for the examination of an asylum application. Thus, it compromises the Tampere commitment of "full and inclusive application of the Geneva Convention".

Amnesty International fears that the forthcoming discussions may have a detrimental effect on the on-going negotiations concerning minimum common standards for the definition and the status of refugees and persons in need of international protection, as well as current negotiations on common minimum guarantees for asylum procedure(3) . Regarding the latter text, the UK initiative is likely to have a negative effect on the adoption of common criteria for designating safe third countries, safe countries of origin as well as manifestly unfounded claims.

According to the UK proposal, off-territory processing zones located at the external borders of the European Union would be the best way to protect Member States' asylum systems against fraudulent and manifestly unfounded claims. However, in order to be efficient, such a system
requires the establishment of pre-screening procedures at the borders in order to identify claims which would "prima facie" fall under this category. These developments must be seen within the context of the current negotiations of a draft directive which provides for a considerable extension
of the concept of "manifestly unfounded claims" and that falls short of international refugee standards.

The UK proposal would also have the effect of diluting Member State responsibility under the so called Dublin system by further broadening the scope of the safe third country principle. Amnesty International recalls that in T.I. vs. United Kingdom (judgement of 7 March 2000), the European Court of Human Rights has already given a strict interpretation of Member States' obligations in the implementation of responsibility sharing mechanisms. It is worth recalling that the Court held that Member States "cannot rely automatically (...) on responsibility-sharing arrangements (...). It would be incompatible with the purpose and object of the European Convention on Human Rights if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution"(4) . In the light of this jurisprudence, a State can only be considered to be a safe third country if they provide effective and durable
protection to the individual concerned, which includes effective access to a fair and satisfactory asylum procedure. Amnesty International takes the view that the jurisprudence of the European Court should be used as a benchmark when concluding responsibility sharing agreements with third countries.

e) Endangering international solidarity

Amnesty International is deeply concerned that the UK proposal will threaten the principle of international solidarity on which international protection and solutions for refugees depend, by creating two classes of asylum states: the rich and powerful states that can select whom they will accept as refugees and the rest who are compelled to host large numbers, including people returned from the rich countries. Such a two-tier system is bound to destroy the international co-operation and solidarity that is essential for the operation of the UNHCR.

If adopted, this proposal will also reinforce a "Sangatte syndrome" because zones located at the external frontiers of the European Union are likely to attract smugglers and traffickers and to contribute to the development of associated crimes. The level of corruption existing in a number of countries in the Eastern and South Eastern border regions is well known. In this context, Amnesty
International fears that the development of a pilot project with Albania, as has been suggested in some quarters, may be ill-advised.

It has also been suggested that it might be appropriate to undertake a pilot project to test the feasibility of the UK proposal. Amnesty International believes that Australia's "Pacific solution" has a sufficient number of parallels with the UK proposal that it should, in this sense, be considered
as the pilot project and subjected to serious independent evaluation. Indeed, in view of the controversy that surrounded the "Pacific solution" (5) , it would seem irresponsible to forge ahead with the UK proposal without first examining the impact of the "Pacific solution" on refugee protection and solutions. To this end, Amnesty International has suggested that the UNHCR establish a group of independent experts who could undertake such an analysis with a view to feeding authoritatively into any further discussions on the viability of such proposals.

f) Safeguarding the international protection system

The UK proposals come at a time when the UNHCR is engaging States Parties in discussions to further develop comprehensive plans of action to ensure efficient responses to mass influx and to secure development assistance as a way of addressing burden sharing arrangements - commonly referred to as "Convention Plus" . In its recent observations to UNHCR consultations on Convention Plus (6) , Amnesty International stressed that any responsibility-sharing arrangement must promote the interests of refugees and not simply that of states, or even worse, a handful of powerful states. Otherwise, it will only serve to complicate the refugee problem, rather than resolve it. Amnesty International believes that Convention Plus could provide a process for developing concrete responsibility-sharing arrangements that, to be effective, must include a strong protection component. It should incorporate more explicitly the human rights obligations of states, and the human rights context in which the 1951 Refugee Convention rests. This was reflected in the UNHCR Global Consultations and the Declaration of States Parties of December 2001.

It should be borne in mind that the legal basis for the special agreements envisaged under Convention Plus draw inter alia on paragraph 8(b) of the UNHCR Statute, namely execution of any measures calculated to improve the situation of refugees falling within the competence of the Office and to reduce the number requiring protection. Convention Plus could in that sense prove to be an important tool for states, UNHCR and NGOs to identify durable solutions in a timely way to protracted refugee situations that continue to persist in many parts of the world.

Amnesty International believes that there is a risk that the UK proposal, if linked to Convention Plus could seriously undermine the potentially positive contribution of this process to the principled management of refugee problems in a protection sensitive and solution-oriented manner. Instead of allowing the UK proposal to dominate the discussion on new ways of handling mixed movements of
refugees and migrants, Amnesty International is looking to the UNHCR to take the lead, and, building on the conclusions from the Global Consultations, help define concrete arrangements for resolving specific refugee situations in a principled manner.

1) Communication from the Commission to the Council and the European Parliament, Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum, COM (2000) 755 final.

2) See Amnesty International's Observations to UNHCR Consultations on gConvention Plush, IOR 42/001/2003, 7 March 2003..Amnesty International EU Office

3) See Amnesty International's Comments on Commission's Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Are Otherwise in Need of International Protection, COM (2001), 510 final, October 2002. Amnesty International's Comments on the Amended Proposal for A Council Directive on Minimum Standards on Procedures in Member States For Granting and Withdrawing Refugee Status COM (2002) 326 final, February 2003.

4) Please note that several supreme courts have already taken this approach. House of Lords, Rv SSHD ex parte Adan &Aitseseguer, 19 December 2000 (1999) 1, AC, 293; Austrian Supreme Administrative Court (VwGH),08.03.2001, G 117/00.

5) See Amnesty International, Australia-Pacific Offending human dignity: the "Pacific Solution" (PDF file) , ASA 12/009/2002, 26 August 2002.

6) Amnesty International's Observations to UNHCR Consultations on "Convention Plus", IOR 42/001/2003 7 March 2003.

Amnesty International 27 March 2003

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