EU: Asylum: harmony at a price (feature)
01 January 1995
Two new proposals on asylum were debated by the Justice and Home Affairs Council at its meeting in Brussels on 30 November 1994, although agreement was not reached on either. Put forward by the German presidency under article K3.2(a) of Title VI of Maastricht for intergovernmental agreement, they are attempts to draw up common European criteria for recognition of refugees under the 1951 Geneva Convention and its 1967 Protocol, and to define common minimum standards for asylum procedures. Campaigners says that the proposals are intended to reduce asylum rights even further.
Harmonised criteria
The "proposal for guidelines for the harmonised application of the criteria for determining refugee status in Article 1A of the Geneva convention" embodies the lowest common denominator approach applied to refugee protection, universalising the worst, most narrow and exclusion-oriented criteria for the grant of political asylum currently used by member states. It would exclude from protection all those caught up in civil wars, unless they are specifically singled out by the authorities or others and cannot move to safety in their own country. It would exclude conscientious objectors and all those whose activities are deemed criminal by the authorities of the persecuting state, unless such activities are "unavoidable". It could also exclude all those, such as Tamil and Kurdish young men, who are routinely "rounded up" as part of the state's public order and national security measures. Even those who have been subjected to torture are not necessarily protected: previous persecution is no more than a "serious indication" of the risk of persecution.
Restrictions on freedom to practice a particular religion will not attract protection unless they are "so severe as to lead to intolerable personal repression... thus rendering life in the country of origin objectively unbearable". Throughout the document emphasis is laid on the necessity for asylum-seekers to show that they could not reasonably have sought refuge in another part of their country.
Persecution is to be assessed in terms of the ability of the subject to lead a normal life, but "normality of life must be assessed having regard to the prevailing conditions in the country". This formulation, together with other phrases in the draft, appears to echo the Ministers' assertion in their November 1992 meeting that "individuals are not entitled to protection ... merely because they come from countries in which levels of security, economic opportunity or individual liberty are below those of the Member States". This relative approach to rights and freedoms appears to contradict the fundamental Conventions and Declarations such as the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights, and undermine their universality. None of the human rights conventions, not even the European Convention on Human Rights, is referred to or incorporated in the document, and those punished for exercising fundamental human rights do not necessarily qualify for protection.
Harmonised procedures
The same restrictive and exclusive approach is in evidence in the second document, "Draft minimum guarantees for asylum seekers and refugees". The proposed minimum procedural safeguards to ensure that genuine refugees are returned to countries of persecution fall far short of those demanded by refugee groups and human rights organisations such as Amnesty International. Neither a universal right of appeal nor universal suspension of deportation pending appeal or review is guaranteed. Important questions such as who can interview asylum-seekers are fudged. There is no right to free legal advice and assistance. There is no discussion on the criteria or legal maximum periods for detention of asylum-seekers, let alone a prohibition on detention. The same goes for fingerprinting. There is a vague guarantee of data protection, but mainly in relation