EU: All refugee status to be temporary and terminated as soon as possible
Guardian coverage, 11.12.02
Secret discussions among ministers and civil servants in the Council of the European Union (the 15 EU governments) about the Directive proposed by the European Commission on the definition of 'refugee/subsidiary protection" raise two major causes for public concern:
1. from next year, all new successful applicants for refugee or subsidiary protection status across the EU would have their situation reviewed regularly with a view to terminating their status as soon as possible
2. the EU is planning to break key parts of the Geneva Convention concerning exclusion from and termination of refugee status - so that despite the EU Member States' international obligations, fewer people will get refugee or other protection status in the EU.
Tony Bunyan, Statewatch editor, said:
"We are entering the end-game: from 1991 onwards the EU told people fleeing from poverty that their applications for asylum would automatically be considered "manifestly unfounded". Now those seeking sanctuary from persecution, torture and inhuman treatment are only to be given temporary status as a matter of policy. Their status is to be under constant review so that they can be repatriated at the earliest opportuntiy (potentially even through forced return) if EU governments decide it is "safe" for them.
The influence of rightwing governments in the EU is now becoming very apparent. The Danish government, which currenlty holds the Presidency of The Council of the European Union, is seeking to advance its own recently adopted policies - and all the other EU governments and officials have quickly endorsed the same approach.
Anyone with any morality or compassion will be appalled by this proposal. Any legislator with any principles will have to reject it."
According to the European Community Treaty, the EC must act 'in accordance with' the 1951 Geneva Convention on the status of asylum seekers when it agrees law relating to refugees and asylum-seekers. Similarly, the EU summit in Tampere in 1999 committed the EU to respect the 'full and inclusive application' of the Geneva Convention.
Have these obligations and principles been applied? In 2001, the Commission proposed a Directive on the definition of 'refugee' and of 'subsidiary protection', a form of back-up status for those who need to seek safety from death, torture or persecution in another country but who fall outside the definition of 'refugee' in the Geneva Convention. This was a relatively positive proposal, although it could have been further improved.
The first planned EU decision would have a devastating impact on those persons recognised by a Member State to have a perfectly legitimate argument to stay as a refugee or because of a similar need for protection. From now on, Member States will constantly be checking to see if the 'coast is clear' to terminate their status and remove them as soon as possible. This is despite the huge uncertainty this will add to the lives of people who have already faced trauma and the clear evidence that refugees make a major economic contribution to host countries. For example, will refugee doctors still be able to requalify in host states, and will hospitals hire them, knowing that the authorities plan to remove them as soon as possible?
The second planned EU decision would potentially cut off refugee status from people who have even remote links to alleged violence in their countries of origin (often based on dubious "intelligence" from security services) and would mean that many refugees who commit possibly even petty crimes will be barred from the access to employment, housing and benefits that the Geneva Convention guarantees for refugees--potentially leaving them homeless and penniless.
Inspired by the far right?
The idea of mandatory review of the status of persons accepted as refugees or persons needing other forms of protection has come from the Danish Presidency of the EU Council. This initiative from the Danish government came despite the Danish government's opt-out from all EU asylum policy.
But where did the Danish government get this idea from? It appears that the far right 'opposition' Danish People's Party, which in effect controls Danish government policy on immigration and asylum, has recently succeeded in obtaining an identical change in Danish policy to terminate the status of and expel many people already accepted as refugees in Denmark.
The Danish government apparently saw no problem pressing ITS far-right agenda on the rest of the European Union - and the civil servants of Europe's home and interior ministries have wasted no time accepting that agenda.
Denmark's track record: Report from Denmark
Statewatch special analysis
EU definition of a 'refugee'
1) Terminating status of refugees
Article 1.C of the 1951 Geneva Convention on the Status of refugees states that the Convention no longer applies once the circumstances in the country of origin of a refugee have changed so much that it is safe for the refugee to return home. This is normally called the 'cessation' clause.
But in many countries which have ratified the Geneva Convention, the cessation clause is not regularly applied. Many States have accepted the argument that once a refugee has been accepted as having a legitimate claim and has spent some time in a new country, quite likely bringing up or establishing a family there and establishing a new social and work life, it would be too harsh on the refugee to force their return once the situation has changed. Of course, nothing prevents voluntary return by refugees when the situation changes.
Moreover, the Geneva Convention expressly recognises that the prior experiences of the refugee may justify a refusal to return. Article 1.C of the Convention also says that certain refugees can 'invoke compelling reasons arising out of previous persecution' for refusing to go back. In practise, this clause is usually applied to the benefit of all refugees. Understandably, for example, the victims of torture or rape or the survivors of murdered family members may feel unable to return to their home country no matter how much change for the better there has been there.
The EU now plans to reverse both these policies.
First, the latest version of the refugee definition directive would require Member States to apply the 'cessation' clause to all new applications for refugee status, even if successful, from the date of entry into force of the Directive (planned for June 2003, according to the EU summit in Seville last June). Refugee status would have to be revoked as soon as circumstances changed (Article 14b).
Second, the latest version of the text would provide no protection for persons facing previous persecution. Article 13 of the Directive, which deals with the issue of cessation, makes no mention of this issue.
2) Breaching the Geneva Convention
The second point discussed above (mandatory application of the rule on cessation of refugee status) would by itself be a major change in policy by the EU. But the EU also plans two explicit breaches of the Geneva Convention on refugee status.
1) The exclusion clause. Article 1.F of the Geneva Convention says that persons are excluded from refugee status on three grounds: they have committed a crime against peace, a war crime or a crime against humanity; they have committed a 'serious non-political crime' outside the country of refuge prior to admission; or they have been 'guilty of acts contrary to the principles and purposes of the United Nations.
No other exclusions are permitted under this clause - but the EU plans to make up two new grounds for exclusion.
First, Article 14(2)(b) of the latest draft would also exclude persons who have committed cruel crimes with an allegedly political objective from refugee status. But this exclusion does not appear in Article 1.F of the Geneva Convention. There is no need to add such wording to combat terrorism, since the Security Council ruled after the events of 11 September 2001 that terrorism is against the purposes and principles of the UN and so is therefore covered by Article 1.F of the Geneva Convention anyway.
Second, the EU wants to extend exclusion to persons who "instigate or otherwise participate" in activities subject to the exclusion clause (Article 14(3)). There is no provision for such an exclusion in the Geneva Convention either. The risk here is that this will exclude from refugee status many people who may have participated in a broad liberation or opposition movement against an oppressive government and who have only a "suspected" link with allegedly terrorist activity.
2) The revocation clause. There is no concept of 'revocation' of refugee status in the Geneva Convention, but the EU proposes to apply such a principle in Article 14b of the proposed Directive. Even if such a concept can be reconciled with the Geneva Convention in principle, it could surely only apply where the Geneva Convention permits status to be refused or terminated by means of the exclusion clause (Article 1.F) or the cessation clause (Article 1.C). There are no other grounds for refusing or ending refugee status if a person meets the criteria to be considered a refugee in Article 1.A of the Convention--except for the minor exceptions in Articles 1.D and 1.E of the Convention which are included in the proposed Directive anyway.
But the EU intends to created a new ground to 'revoke' refugee status in Article 14b(4) of the proposed Directive. This allows refugee status to be revoked if a person is considered 'a danger to the security of the host country' or has been 'convicted of a particularly serious crime'. This language comes from Article 33(2) of the Geneva Convention, which permits a refugee to be removed to an unsafe country in either of those cases. But this clause does not permit termination of the refugee status.
Moreover, the European Court of Human Rights has ruled in the cases of Chahal v UK and Ahmed v Austria that even in those circumstances, a person cannot be removed to an unsafe country, as there is an absolute right under the European Convention on Human Rights (ECHR) to be free from torture or other inhuman or degrading treatment or punishment. Of course this does not prevent a term of imprisonment or other punishment of any refugee found guilty of such serious crimes following a fair trial--it merely prevents their removal to a state where there is a real risk they will face such appalling treatment. In fact, these two cases show how easily the clauses permitting removal can be abused by Member States--the criminal conviction of Mr. Chahal had been quashed by the Court of Appeal and the 'particularly serious crime' Mr. Ahmed was guilty of was stealing handbags and insulting a police officer.
It seems that Member States want to get around the ruling of the European Court of Human Rights as much as possible without actually breaching the ECHR. So they plan to breach the Geneva Convention instead. In cases where there is a security risk or serious criminal conviction, Member States may revoke refugee status according to Article 14b of the proposed Directive, even though the Geneva Convention clearly does not permit this.
There would be some limited protection in such cases because Article 14b(6) of the proposed Directive states that a few elements of refugee status will still apply. What does this actually mean? People in these circumstances will retain rights 'similar to' those in the Geneva Convention concerning non-discrimination, religion, court access, education, and restrictions on expulsion or removal to an unsafe country. This means they will lose all other rights that refugees have according to the Geneva Convention: to protection of property, the right of association, access to employment, self-employment and the professions, housing, public assistance, social security, freedom of movement and travel documents. So they can stay in the country but Member States will have to eliminate their rights to move, earn an income, receive benefits or obtain housing.
Refugees will be plunged into homelessness and destitution - just like Mr. Ahmed was in spite of his successful case against Austria. In fact, he eventually committed suicide.
3) 'Minimum' or common standards?
It might be thought that since the EU only has the power to set 'minimum standards' for Member States in this area, according to the EC Treaty, Member States will always be free to set higher standards and so at least some of them may choose to be more generous as regards exclusion and cessation of refugee status. But the EU Council's legal service takes a different view. In a crucial legal opinion relevant to almost all the proposed or agreed EU immigration and asylum legislation, the legal service argues that much of the proposed directive in fact requires Member States to harmonise their law entirely--with no more generous treatment allowed.
What would this mean in practice? The Council legal service was commenting on an earlier draft of the proposal, but its view can be summarised as follows:
common rules (Member States cannot be more generous)
- the core definitions in article 2
- rules on refugee/subsidiary protection sur place (meaning protection needs arising after a person left his or her country of origin)
- rules on agents of persecution (meaning whether the state or non-state bodies can persecute an individual to give rise to a protection need)
- rules on agents of protection (meaning whether the state or non-state bodies can protect an individual)
- the concept of persecution
- the cessation clause for refugees
- the exclusion clause for refugees
- the clause on granting of status for refugees
- the core definition of subsidiary protection
- cessation of subsidiary protection
- exclusion of subsidiary protection status except the 'petty crime' exclusion in Article 17(3)
- granting subsidiary protection status
- revoking subsidiary protection status on exclusion grounds (note the wording here is the same as the wording of the later drafts of art 14b)
minimum standards (Member States can be more generous)
- whether refugees have the burden of proof
- the 'internal protection' clause (whether another part of the country of origin was safe)
- definition of grounds for persecution of refugees
- much of the revocation clause for refugees in the earlier draft
- exceptions for the rules on content for some persons with protection needs sur place
- exceptions to non-refoulement (non-removal to unsafe countries)
But it should be noted that since the Council legal service released this opinion, the clause on revocation of status for refugees was redrafted, and now clearly requires Member States to end refugee status for all new refugees as soon as possible. This is clear because the revised wording of Article 14b is based on the wording of Article 17b in the earlier draft--which the Council legal service argues is a common rule.
It can only be concluded that the Council deliberately intends to make sure that status for all new refugees is temporary and is terminated as soon as possible.
Analysis prepared by Steve Peers, Professor of Law, Essex University
1. Commission proposal for a Directive on definition of refugee status, content of refugee status, and subsidiary protection: Commission initial proposal (pdf)
2. Denmark's: Track record
None of the following documents are publicly accessible:
3. Council legal service opinion on Articles 1 and 4 of proposed directive: document 14348/02, 15.11.02
4. Version of proposed directive considered by legal service (document 14083/02, 12.11.02 (pdf)
5. Latest version of directive: 14643/1/02 26.11.02 & 14643/1/02 ADD 1, 27.11.02
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