28 March 2012
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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."
Background
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.
Impact
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
Documentation
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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