Safeguards needed for EU asylum rules on "safe countries", warns UNHCR

GENEVA, Oct 1 (UNHCR) – On the eve of a European Union meeting to discuss EU asylum legislation on "safe countries", the UN refugee agency has expressed concerns that if these concepts are introduced without proper safeguards, they could seriously compromise the protection of refugees.

The EU Justice and Home Affairs Council is set to meet on Thursday and Friday in Brussels to discuss a crucial piece of EU asylum legislation that may permit the establishment of lists of countries that are considered "safe".

According to UNHCR, the asylum procedures directive – one of two remaining pieces of legislation to be decided during the first phase of EU harmonization of asylum law and practices – is of fundamental importance to the whole future of the asylum system in Europe.

On the agenda of this week’s meeting are two separate notions concerning "safe countries". Firstly, the idea that an asylum seeker can be returned to another country where he or she could! have claimed asylum – the so-called "safe third country" concept. Secondly, the idea that some asylum seekers’ countries of origin are safe, and they can therefore be presumed not to be refugees.

Among a number of problems it has with the current draft directive, UNHCR said it was concerned that if "safe country" concepts were introduced without sufficient safeguards, they could seriously compromise the protection of refugees and deviate from international standards.

The refugee agency is particularly worried that the asylum procedures directive may allow lists of "safe third countries" to be established and that, due to insufficient safeguards or vague terminology, these could lead to asylum seekers being summarily sent back to non-EU countries without any guarantee that their asylum claim will be properly dealt with there. Such countries might be transit countries, with which the asylum seeker has no firm connection whatsoever, or even a country where the as! ylum seeker has never set foot.

"If this were to happen, it would be a clear case of avoiding responsibilities," said Raymond Hall, Director of UNHCR’s Europe Bureau. "Even worse, if it is done without the express agreement of the third country, it could lead to people being stuck in airports, unable to access any asylum system anywhere, or even to people being returned to a dangerous situation in their home country – which is, of course, against international law."

UNHCR has released a series of comments on the draft legal texts currently under negotiation, telling the EU member states that a number of conditions need to be met before responsibility for an asylum seeker can be transferred from one country to another.

Firstly, the decision should not be unilateral. The so-called safe third country should be notified that the asylum seeker is being transferred and give "its express consent to accept responsibility for examining the application."

Th! e country itself should be safe not only in theory, i.e. because it has signed the 1951 Refugee Convention and has a national asylum system. The asylum system should be fully functioning in practice, which is often not the case. For example, access to an asylum procedure can often be a major problem. UNHCR has told EU states that, in the absence of a common set of legally binding standards such as those contained in the EU’s own Dublin Regulation, the judgement on whether a third country is safe can only be reached through an individual analysis of each case and not on the basis of lists.

Historically, the "safe third country" notion has been mostly used by EU countries as a tool for dealing with applicants coming via Central European countries such as the Czech Republic, Hungary, Poland, Slovakia and Slovenia, which share a border with the EU. UNHCR said it believes this concept will largely lose its relevance when these states themselves join the EU next year.

With regard to the return of people to transit countries, UNHCR suggested there should be "a meaningful link or connection that would make it reasonable for an applicant to seek asylum in that State.... Mere transit through a third country does generally not constitute such a meaningful link." The agency also expressed concern at proposals to expand the application of the "safe third country" concept to include countries with which the applicant does not necessarily have any links at all, and has not even travelled through.

On the issue of "safe countries of origin," UNHCR said it does not oppose the concept if it is used as a tool to decide which asylum seekers are subjected to accelerated procedures, particularly at the appeal stage. However, the procedures themselves should have sufficient safeguards, including some form of review. An asylum seeker must be given an opportunity to explain why he or she might be at risk in a country that is generally considered to be safe.

In addition, the procedure to determine which countries of origin are "safe" should be sufficiently flexible to take account of both sudden and gradual changes in a given country of origin.

"If a country experiences a coup d’état or some other form of social or political upheaval," said Hall, "it is obviously important that immigration officials do not continue automatically to treat it as a 'safe' country, because it still appears on their safe country list. The system will need to take account of increased risks of persecution without delay, otherwise terrible mistakes could be made."

Story date: 1 Oct 2003
UNHCR News Stories

Top UN refugee official calls on states to practise what they preach

GENEVA, Oct 1 (UNHCR) – The UN refugee agency's top legal official told governments today in Geneva that too many of them do not "practise what they preach" when it comes to protecting refugees in accordance with international law and urged them to live up to their own call for more "effective protection".

In her address to UNHCR's governing body, Executive Committee (ExCom), the agency's Director of International Protection, Erika Feller, cited a long list of problems to back up her conclusion that states, including some of the 64 that sit on ExCom, were not living up to their obligations despite regularly making "right-minded statements about refugee protection".

"UNHCR is concerned by the widening gulf between the discourse and commitments made, including in this Committee, and the actual practice of many states," she said. "Harsh realities facing asylum seekers around the globe are not exceptional, but rather too commonplace."

Feller reminded dele! gates that a December 2001 ministerial-level meeting of states that had signed the 1951 Refugee Convention called for protection to be made "more effective". In the same Ministerial Declaration, states pledged their "commitment to implement our obligation ... fully and effectively". The Ministerial meeting and the wide-ranging Global Consultations process, of which it was a part, led to a landmark document called the Agenda for Protection that was adopted by ExCom a year ago.

Feller briefly outlined the goals set by the Agenda for Protection: "Better implementation of the protection regime; better security for refugees; better protection for women and children in refugee communities; greater burden-sharing with refugee-hosting states; improved management of the asylum/migration nexus; and more reliable and timely durable solutions."

She then gave what she termed a "reality check".

Forced deportations of asylum seekers and refugees are "not exceptional," ! she said, and refoulement (the technical term for the illegal forced return of a refugee to his or her country of origin) is often the result.

"UNHCR is being denied access to persons of direct concern," she continued. "Refugees continue to confront serious security problems, including sexual and gender-based violence. Fear of terrorism and tightened security controls have negatively impacted refugee access to territory, to asylum procedures and to the solution of resettlement."

She noted how efforts to curb illegal migration have spawned restrictive legislation, multiplying obstacles to accessing asylum procedures and denying due process to detainees.

"Refugees have been rounded up, interned or detained in ways inconsistent both with the prevailing standards, as well as State rhetoric," Feller said. "We see compulsion to sign voluntary repatriation forms; we witness compelled return to situations of statelessness, internal displacement, forced la! bour or other human rights breaches."

She also pointed to what she termed an "abdication of responsibilities" on the part of some states to manage their own asylum systems, including the all-important management of security issues in refugee camps.

"The civilian and humanitarian character of asylum is compromised and, at the level of the individual refugee, women and children continue to account for the largest portion of the victims," Feller said. "Field reports all too often document cases of abuse, such as the recent one of a refugee woman who went to the local police to lodge a rape accusation, only in turn to be raped by the very security officials from whom she had sought protection and redress."

Feller then urged states to work towards providing truly "effective" protection. She reminded them that the Agenda for Protection had essentially laid down the broad policy lines, and a meeting of experts in Lisbon in December 2002 had laid down a number o! f suggested legal benchmarks for determining what constituted "effective protection".

While the Agenda for Protection had led to a number of promising initiatives, including the High Commissioner's Convention Plus initiative, Feller noted that "it can only be through implementation and in observance that international standards are transformed from rhetoric into reality." Instead, states were devising "too many artificial constructs … to elude responsibility for supporting and accepting refugees."

In her conclusion, Feller noted that the stated priority of UN Secretary-General Kofi Annan to hold the line against what he has deemed widespread erosion of hitherto broadly accepted norms of behaviour. "The major goal of the Global Consultations, said Feller, "was precisely to try and arrest further erosion of the international protection regime."

She acknowledged that governments have to grapple with a number of major difficulties, including mixed movements ! of economic migrants and refugees, asylum fatigue, security concerns and insufficient resources.

"All of these are serious challenges," she said, "and it was agreed, through the Agenda for Protection, that specific initiatives are called for to address them. It remains our position that these challenges do not justify blatant cases of refoulement, denial of any identity to refugees before the law, mandatory and arbitrary detention of all asylum seekers, denial of access to UNHCR, maintenance of obstacles to repatriation, or not prosecuting cases of rape of refugee women."

Story date: 1 Oct 2003
UNHCR News Stories

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