C Explanatory
memorandum by Mr Chope, rapporteur
1 Introduction
1. The report’s origins are in the motion for a resolution
which the rapporteur, together with others, presented on 26 January
2011.
Note The motion
followed the judgment of the European Court of Human Rights (“the
Court”) in the case of
M.S.S. v. Belgium
and Greece and stated that “The Assembly should consider
what measures are needed to ensure that responsibilities in the
field of asylum are fairly apportioned in Europe and guarantee refugees
and asylum seekers access to an effective asylum procedure and international
protection”.
2. The motion preceded the “Arab spring” and the consequential
surge in the number of refugees, asylum seekers and migrants seeking
to enter Europe from North Africa. The gravity of the issues which
this report addresses is underlined by the disturbing news on 9
May 2011 that 61 people fleeing from Libya on a boat had tragically
died of starvation and thirst off the North African coast after
drifting in the Mediterranean for 16 days.
3. When the rapporteur visited Brussels on 3 May and had meetings
with representatives from Amnesty International, the Office of the
United Nations High Commissioner for Refugees (UNHCR), the European Commission,
the European Parliament and the European Council, he was told that
one of the difficulties in addressing the problem of illegal smuggling
of immigrants from North Africa taking advantage of the political situation
was that, after paying for their passage, the refugees, asylum seekers
and migrants were put to sea and left to their own devices while
the smuggling gangs disembarked. That is exactly what seems to have happened
on 9 May.
4. It is the intention of this report to address the issue of
sharing responsibilities in Europe in the sense of the 47 member
states of the Council of Europe rather than the narrow definition
of the 27 member states of the European Union in which the European
Parliament, European Commission and European Council have their focus.
5. The fundamental point must be made that the first and foremost
responsibility of each member state of the Council of Europe is
to meet its own international, legal and humanitarian obligations
including under the 1951 United Nations Convention relating to the
Status of Refugees (“the Refugee Convention”).
6. The second point is that if individual countries find it difficult
to cope with the administrative burden of processing applications
for international protection arising in their own country, they
should not refrain from asking other countries to come to their
assistance. They should be encouraged to take responsibility for arranging
such bilateral or multilateral arrangements on their own initiative.
For example, Turkey has recently been reported as having drawn up
arrangements to ensure that a potential mass influx of refugees
from Syria can be avoided by providing a temporary safe haven within
the Syrian border until stability returns.
7. 7. The third point is that countries need to work together
to ensure that the scale of irregular migration and smuggling by
criminal gangs is addressed. The reason for this is that the problem
is not the volume of asylum seekers but the volume of economic migrants
who swell the numbers needing processing.
8. The fourth point is that all Council of Europe member states
should be encouraged to take genuine asylum seekers from those states
beyond Europe’s boundaries and within Europe where the numbers are
too great for the host nation, proportionate to its population and
resources. But this will only be politically possible when suspicious
electorates believe that there is tighter control over irregular
migration. There is also a strong argument for sharing responsibility
for those who cannot be returned to their countries of origin because
of the rules of non-refoulement.
9. It is essential, however, that if we are to ensure that responsibilities
in the field of asylum are fairly apportioned as the motion seeks,
we must have much better information than currently seems to be
available about what is actually happening at Europe’s external
borders.
2 Legal
basis of the principle of solidarity and responsibility sharing
10. At international level, paragraph 4 of the Preamble
to the Refugee Convention recognises the need for responsibility
sharing when it comes to asylum matters by stating that “Considering
that the grant of asylum may place unduly heavy burdens on certain
countries, and that a satisfactory solution of a problem of which the
United Nations has recognized the international scope and nature
cannot therefore be achieved without international co-operation”.
11. While this provision is merely declarative, and while it is
clear from international humanitarian law that the primary responsibility
for protecting and assisting refugees rests with the country of
asylum, numerous “soft law” instruments clearly enshrine the principle
of responsibility sharing.
12. This was done, among others, in the conclusions of the United
Nations High Commissioner for Refugee’s Executive Committee, in
resolutions of the United Nations General Assembly.
Note It has also been clearly reaffirmed
by the Parliamentary Assembly, including as recently as April 2011.
Note
13. For the 27 member states of the European Union, Article 80
of the Treaty on the Functioning of the European Union (TFEU) provides
a legal basis for the principle of solidarity and fair sharing of
responsibility in asylum and migration matters. It reads as follows:
“The policies of the Union set
out in this Chapter and their implementation shall be governed by the
principle of solidarity and fair sharing of responsibility, including
its financial implications, between the Member States. …”
14. Article 80 of the TFEU applies to EU institutions and to member
states when it comes to the policy area of borders, asylum and immigration.
Article 78 of the TFEU is also relevant insofar as it refers to
provisional measures in case of an emergency situation, when a member
state is confronted with a sudden inflow of third-country nationals.
15. The “need for genuine and concrete solidarity towards member
states most directly concerned by migratory movements” was clearly
reaffirmed by the European Council in its conclusions on the management of
migration from the Southern Neighbourhood adopted on 11 and 12 April
2011.
Note But the form which the co-operation/solidarity
should take was not defined.
3 Collective responsibility
in asylum matters: an “international public good”
16. From an overall perspective, sharing responsibility
is beneficial not only to the countries faced with a high number
of arrivals because of their geographical situation in Europe, but
also for others.
Note
17. Through mutual support, member states that are not currently
under great pressure could ensure that they would be eligible for
assistance from other member states in the future were their circumstances
to change and they found themselves faced with substantial arrivals
of refugees and asylum seekers. Responsibility sharing can also
eventually close routes for irregular migration into Europe because
traffickers and smugglers will find it more difficult to identify
and exploit weaknesses in border controls. Responsibility sharing
is therefore a way to increase collective stability at Europe’s
borders.
18. Without responsibility sharing, those countries that are unable
to cope with the migratory pressure might, at worst, just give up.
Indeed, there have been allegations that some countries do not do
everything in their power to prevent onward migration from southern
Europe to the North. Furthermore, we know that many of the migrants,
asylum seekers and refugees in the North of Europe have come in
from the South (see, for example, the recent arrival of Tunisians
in France from Italy). There is therefore already a problem which
needs to be addressed for the benefit of Europe as a whole.
19. Reform of Schengen is now firmly on the EU table with active
discussion about closure of some EU internal borders, albeit on
a temporary basis. This is the “worst case scenario” as described
in a recent European Parliament study. A co-ordinated approach based
on mutual co-operation might have avoided the current tensions between
France and Italy.
20. The sharing of responsibility for asylum has also been described
as an “international public good”
Note leading
to a more enduring resolution of crisis situations. Asylum reception
should be seen as a collective responsibility, and even as an “international
public good”.
Note
|
Claims
for asylum
|
Europe
/ European Union
|
Southern
European countriesNote
|
|
2010
|
269 900
/ 87% in EU countries
|
33 600
|
|
2009-2010
|
- 6%
|
- 33%
|
|
2000-2010
|
- 50%
|
na
|
|
Share
of asylum claims worldwide
|
Europe
|
|
2005
|
60%
|
|
2009
|
45%
|
|
Claims
for asylum
|
France
|
Germany
|
Sweden
|
United Kingdom
|
Belgium
|
Greece
|
Italy
|
Malta
|
|
2010
|
47 800
|
41 300
|
31 800
|
22 100
|
19 900
|
10 300
|
8 200
|
28
|
|
Evolution
since 2009
|
+ 13%
|
+ 49%
|
+ 32%
|
- 28%
|
- 16%
|
- 36%
|
- 53%
|
-94%
|
21. Any discussion about the sharing of responsibility
has to be based upon accurate data as to the actual situation. The
number of people seeking asylum in one of the 47 member states of
the Council of Europe remains significant but the numbers do not
appear to be such as to justify shortcomings in processing such
as those identified by the European Court of Human Rights in the
judgement in the case of M.S.S. v. Belgium
and Greece. The most authentic figures for the number
of asylum seekers coming into the 27 countries of the European Union
and the two Schengen associated countries of Norway and Iceland
come from Frontex. The term ‘Frontex’ derives from the French “frontières
exterieures”. It is the European Union’s agency for external border
security with a legal remit to be the European agency for the management
of operational co-operation at the external borders of the member
states of the European Union. It has been operational since 3 October 2005.
Frontex collects data from European Union countries from which it
produces an annual risk analysis.
22. Its most recent analysis, issued on 11 May 2011, shows that
in 2010, 104 049 people were detected crossing the European Union
external borders illegally. The number was almost identical to that
of 2009. The report highlights, however, that in 2010 there was
a 45% increase in detections of illegal border crossings at the
Greek borders with Turkey. The Greek authorities reported a total
of 47 706 such crossings at the land border with Turkey which represents
almost half of all such movements into the European Union. Frontex ascribes
the reason for this to a shift in the dominant routes used by migrant
smugglers. The focus of illegal activity is on a 12.5 km section
of land border in the Evros river region, mainly around the Greek
city of Orestiada. On Frontex’s evidence alone it is apparent that
in 2010 Greece faced a substantially larger problem of irregular
migrants than other countries. So far in 2011 it may well be that
the focus has again returned to Italy as indeed it was in 2008 when
a peak of 31 300 foreign nationals arrived illegally on Lampedusa.
23. The Frontex figures can be criticised for not presenting a
complete picture. This is obvious from the fact that the 27 EU member
states registered 235 900 claims for asylum in 2010 according to
Eurostat. 47 800 of these were in France, 41 300 in Germany, 31 800
in Sweden, 22 100 in the United Kingdom and 19 900 in Belgium. It
appears that very large numbers of those who registered claims for
asylum must have entered at an EU external border without detection
before travelling to the country where they registered their claim.
This is corroborated by the fact that the actual number of requests
for asylum made in Greece fell by 36% in 2010 despite the number
of illegal arrivals detected increasing by 45%.
24. It is also a matter of concern that Frontex’s annual risk
analysis states that over the coming year irregular passenger flows
across the external borders are expected to rise. This is due to
“increasing mobility globally as well as the possibility of visa
liberalisation procedures for the EU’s eastern European partners
and new agreements governing local border traffic along the eastern
borders”. Frontex also cites the possibility of important changes
in the external Schengen and EU borders with the possible entry
of Romania and Bulgaria into the Schengen area and Croatia’s possible
accession to the European Union.
5 Current variety
and lack of co-ordination of asylum management tools in Europe
5.1 At national level
25. Understandably and in compliance with their sovereign
right to exercise control over their borders and to take measures
to prevent unlawful entry into their territory, all countries have
their own approach to the adoption of measures based on the defence
of their own interests.
26. Italy, for instance, had signed a co-operation agreement with
Libya. According to this agreement, now suspended for obvious reasons,
Italy had been repatriating to Libya all persons rescued in international
waters. While this individual solution proved its efficiency in
stopping arrivals of irregular migrants to Italy, it raised concerns
about the denial of access to international protection and about
the treatment of those sent back to Libya. Italy has also reached
an agreement with Tunisia in recent weeks, although the precise
text has not been seen by the rapporteur.
27. Several other countries have reached bilateral agreements
with third states. This is for instance the case between Spain and
Mauritania. According to this bilateral agreement Spanish vessels
are entitled to patrol the Mauritanian territorial waters.
Note Under the auspices
of Frontex joint operations conducted off the Mauritanian coast,
Spanish vessels intercept flagless vessels and ensure their return
to Mauritania.
28. Malta has a resettlement programme with the United States
in the framework of which 500 persons have been relocated so far.
A resettlement pilot project has been developed at EU level. Such
best practice could be extended.
29. These varied solutions show how different countries respond.
But what happened to any genuine refugees who were among those automatically
returned to Libya under the agreement with Italy? The UNHCR has
expressed its concern that under that agreement people in need of
international protection were prevented from coming to Europe. The
rapporteur was told by a UNHCR representative that it has recognised
11 000 refugees in Libya, some of whom are now arriving in Malta
and Italy.
5.2 European Union
scheme of responsibility distribution/allocation
30. Following the 1985 Schengen Agreement on the abolition
of internal borders,
Note the European Union has put
in place certain rules of responsibility allocation amongst its
member states.
31. The rules in question are known as the “Dublin Convention”,
Note which
later became the Dublin II Regulation.
Note However, while seeking an effective,
co-ordinated system, Europe has ended up with a system, the implementation
of which has given rise to infringements of the 1951 Refugee Convention.
32. While the intention was to achieve a fairer division of responsibilities
among European countries, the Dublin system has placed a disproportionate
burden on countries such as Greece, Malta, Italy, Spain and Cyprus
at the external borders of the European Union.
Note
33. The European Court of Human Rights, in its
M.S.S. v. Belgium and Greece judgment,
Note ruled that Belgium
(for having sent an asylum seeker back to Greece) and Greece (because
of the dreadful living and detention conditions of asylum seekers
in Greece) had violated,
inter alia,
the non derogable provisions of Article 3 of the European Convention
on Human Rights. Other similar cases are currently pending before
the Court.
34. It is clear that a simple mechanism putting the responsibility
on the first state of arrival is not a complete solution. It was
based on the assumption that all EU countries weresafe and able to cope. They were
not. There are also wide variations in a person’s chances of being
granted asylum in particular countries.
6 Europe’s asylum
challenges
6.1 Greece – collapse
of the asylum system
35. There are differing views as to the extent to which
countries such as Italy, Malta and Greece should be able to take
responsibility themselves.
36. During the committee’s hearing on the Stockholm programme,
Ms Cecilia Wikström, MEP and rapporteur on the Dublin system for
the Committee on Civil Liberties, Justice and Home Affairs of the
European Parliament, stated that in the aftermath of the Balkan
wars Sweden dealt with 82 000 asylum applications in one year and
that this was not an impossible task. She underlined the readiness
of many states, including Sweden, to help out states like Greece
facing difficulties to cope with the number of asylum claims. But
she also claimed that those states had to request help: “Just pick
up the phone” was her plea.
37. However, the past situation in Sweden and the current situation
in Greece are different. In the first case, Sweden had to deal with
persons with similar profiles with similar protection needs. Indeed,
many applicants refuse to provide any information whatsoever. This
makes the asylum determination process much more complicated. Furthermore,
Greece is in the middle of an economic crisis.
38. As was stated above, the European Court of Human Rights has
condemned the long denounced living and detention conditions of
refugees and asylum seekers in Greece for being in breach of Article
3 of the European Convention on Human Right. It has furthermore
condemned the major structural deficiencies of the asylum procedure
in Greece.
39. Greece, which is under particular pressure of arrivals of
refugees and asylum seekers (but also of irregular migrants) due
to its geographical position, is experiencing huge difficulties
in dealing with the asylum claims. In compliance with the Dublin
Regulations, other EU member states send back to Greece asylum seekers
that first entered the European Union via Greece. Since the M.S.S.
judgment, many EU countries have suspended returns of asylum seekers
to Greece.
40. This, however, has not been enough to solve the problems.
Greece has still to deal with a backlog of over 50 000 asylum claims
and urgently needs to reform its asylum procedure to ensure its
fairness and effectiveness. While plans for the reform of the Greek
asylum system, released in 2010, have been warmly received by the
UNHCR, nothing has been implemented despite an avowed political
will to do so. There would seem to be strong arguments for the Greek
financial bale out being made conditional upon reform of the asylum system.
41. European states could alsoconsider
the possibility of sharing among themselves part of the Greek backlog.
This would be fair towards the asylum seekers currently waiting
for their claims to be dealt with. It would also encourage Greece
in its reform efforts. A fresh start would also speed up Greece’s
capacity to catch up with its European and international obligations.
6.2 Malta – disproportionate
pressure on a very small country
42. Due to its geographical position, Malta is one of
the main entry points into the European Union for boat arrivals,
be they refugees, asylum seekers or irregular migrants. Malta has
a huge challenge in dealing with these arrivals. With 400 000 inhabitants,
the country is one of the most densely populated (over 1 250 inhabitants
per square kilometre) and has little room to accommodate extra people.
Furthermore, Malta’s territorial waters are extensive, thereby putting
additional pressure and responsibility on the country’s stretched resources.
Because it is an island, there is no easy route for persons once
they arrive to make their own way northwards into the rest of Europe.
Those who arrive stay until another solution can be found. There
is no “official safety valve” such as has been resorted to by Italy
whereby those who arrive can be left to disappear elsewhere.
43. There are thus particular issues to be addressed in relation
to Malta and the need for solidarity and responsibility sharing.
While it is clear that Malta continues to take steps to improve
its detention policy and the conditions of detention and reception,
the Commissioner for Human Rights says it needs to do more.
Note If the flow of boat people continues
at the current pace, this is likely to create grave humanitarian
problems as well as substantial problems for the Maltese authorities
and the general public. All member states of the Council of Europe
need to consider what they can do to help share responsibility with
Malta in the event of such a scenario. Indeed, the Committee of
Ministers should already be engaged in contingency planning in case
the situation deteriorates further.
6.3 Exceptional situation
– Europe’s southern countries at the forefront of large-scale arrivals
of refugees and asylum seekers fleeing conflicts in Libya
44. Given the current turmoil in North Africa, it is
clear that the figures mentioned above (see Part 4) will significantly
differ in 2011.
45. According to most recent estimates, over 750 000 persons have
fled the violence in Libya, finding refuge mainly in Egypt (260
000) and Tunisia (360 000).
Note In addition to migrants not
in need of international protection, a number of refugees (for example
Somalis, Eritreans, Sudanese) have left Libya. Some of them have
managed to reach Malta and Italy. Among them, some had already been
granted refugee status a number of years ago but had been unable
to move on from Libya.
46. By 10 May 2011, around 34 500 people (23 000 Tunisians and
11 000 non-Tunisians) had arrived by boat in Lampedusa. Arrivals
from Libya have also reached both Malta (by early May 2011, over
1 100 persons, mainly of sub-Saharan origin (primarily from Somalia
and Eritrea)) and Italy (mainly Lampedusa).
Note
47. Earlier this year, amongst those who had already arrived on
Lampedusa the majority had come from Tunisia and did not intend
to claim asylum. Italy has since reached an agreement with Tunisia
and the arrivals of Tunisian economic migrants have almost stopped.
Now, people fleeing Libya arrive with more compelling international
protection needs. More are, however, likely to come to both Malta
and Italy. On 7 and 8 May 2011, two boats from Libya arrived in
Lampedusa with 1 300 persons on board, mostly originating from Sub-Saharan Africa
and South-East Asia.
48. If, as appears likely, these arrivals continue, there will
be even greater pressure and necessity for European states to show
solidarity with one another.
7 Past failures in
responsibility-sharing initiatives
49. In the past, some attempts to better share responsibility
for refugees in Europe have been aborted.
Note
50. The Council Directive on Temporary Protection in the case
of Mass Influx,
Note while indeed being a proper solidarity
and responsibility-sharing tool, has not been invoked once since
its adoption in 2001. However, in the event of a massive inflow
of persons in need of international protection in the aftermath
of the events in North Africa, the European Commission has recently
expressed its readiness to consider proposing the use of the mechanism
foreseen under this Directive if the required conditions are met.
Note
51. Article 9 of the Dublin Convention provides that “Any Member
State, even when it is not responsible under the criteria laid out
in this Convention, may, for humanitarian reasons, based in particular
on family or cultural grounds, examine an application for asylum
at the request of another Member State, provided that the applicant
so desires”. Article 3, paragraph 2, also entitles member states
to examine an application for asylum even if such examination is
not its responsibility under the criteria laid down in the Dublin
Convention. These existing “humanitarian clause” and “sovereignty
clause” provisions which allow a member state to proceed with an
asylum claim even though it was not the first state of entry of
the asylum seeker show that the Convention has more flexibility
than some of its critics admit. The problem is that the flexibility
has not been exercised as it could have been, even, for example,
in the M.S.S case.
8 Responsibility
sharing tools
52. In a Joint Communiqué, published on 19 April 2011,
Cyprus, Greece, Italy, Malta and Spain once again called on Europe
for more solidarity and responsibility sharing, emphasising that
the “possible prolongation of … influxes of illegal migrants and
asylum seekers to the Mediterranean Member States cannot be managed without
the concrete and substantial support and solidarity from the rest
of the EU’s Member States”.
Note
53. To answer such calls, the European Union has a range of both
financial and operational tools that could be used in a more generalised,
efficient, but also long-term manner.
8.1 Resettlement and
relocation
54. Refugee resettlement consists in the relocation of
refugees from one state in which they have sought asylum to another
state which has agreed to admit them as refugees and to grant them
settlement on its territory. As stated by the UNCHR: “Resettlement
is the concrete expression of a commitment to refugee protection
and to the promotion of human rights. It is also a practical manifestation
of international responsibility sharing”.
Note
55. With roughly 1 900 places in 2010, Sweden has the largest
single resettlement programme in Europe, followed by Norway (1 100),
for a total of roughly 6 000 in Europe for 2010.
Note Compared
with the 50 000 in the United States, 7 000 in Canada and 6 000
in Australia, it is difficult to argue that Europe has exhausted
its capacity.
56. With the prospect of an increase in the flows of refugees
in need of international protection coming from Libya, the European
Commission has offered financial support to facilitate resettlement.
The European Commission has also encouraged EU member states to
offer resettlement places “in a spirit of responsibility-sharing”.
Finally, the European Commission has underlined the need for the
European Parliament and the European Council to rapidly find an
agreement on the adoption of the Commission’s proposal for the establishment
of an EU joint resettlement programme.
Note
57. Relocation, a solidarity mechanism between European states,
is also a possible way for European states to support other member
states under specific and disproportionate pressure.
Note
58. In 2008, pilot projects on the relocation of refugees located
in Malta were introduced with the aim of helping to ease the disproportionate
and exceptional situation in Malta.
Note This
EU pilot project aims to provide relocation possibilities in other
countries for people who have been granted asylum in Malta. France,
Germany, Luxembourg, Hungary, Poland, Portugal, Slovenia, Slovakia,
Romania and the United Kingdom participate in this project. This
is considered a form of good practice in terms of European responsibility
sharing, and has been praised by the UNHCR.
Note In
its conclusions on the management of migration from the Southern Neighbourhood
adopted on 11 and 12 April 2011, the European Council welcomed the
European Commission’s intention to extend this existing pilot project.
Note
59. On 12 May 2011, after the Pledging Conference on Relocation
and Resettlement which was organised by Commissioner Malmström in
the margins of the Justice and Home Affairs Council meeting, it
was announced that at least ten EU member states as well several
non-EU member states had agreed to relocate 323 asylum seekers who
are currently in Malta.
Note
8.2 Frontex operations
60. Responding to an official request by the Italian
authorities, Frontex has deployed the Joint Operation EPN Hermes
Extension 2011 to assist them in managing the influx of arrivals
by boat on the island of Lampedusa. Frontex reports that “In addition
to one aircraft and two vessels already financed and co-ordinated by
Frontex, one Dutch and one Portuguese plane have now arrived in
Pantelleria and Sardinia respectively to assist the Italian authorities
in strengthening their border control activities”.
Note The European Commission considers
this as being a “clear signal of solidarity” between member states.
Note On 26 March 2011, the operational
area of Joint Operation Poseidon Sea,
Note which covers the Greek islands
in the Aegean Sea, has also been widened to include Crete.
61. In its conclusions on the management of migration from the
Southern Neighbourhood adopted on 11 and 12 April 2011, the European
Council has invited Frontex to speed up negotiations with the EU’s
Southern neighbouring countries – and in particular Tunisia – with
a view to concluding working arrangements and organising joint patrolling
operations.
Note In order to strengthen the competences
of this Agency, it also decided to accelerate negotiations on amending
the Frontex agreement with a view to reaching agreement by June 2011.
62. The way in which Frontex operates is subject to criticism
by several observers, notably as regards the lack of appropriate
guarantees with respect to human rights.
Note These issues are dealt with in a
report prepared Mr Arcadio Díaz Tejera on behalf of the Committee
on Migration, Refugees and Population.
Note The
European Commission proposed changes to the legal framework of the
agency in February 2010.
Note This proposal is currently being
discussed by the European Parliament with a view to its approval
by the European Council as a matter of urgency. While some argue
that reform is needed to render Frontex operation more legal and
to reinforce its human rights obligations, EU member states also
see the reform as an opportunity to strengthen Frontex’s actual
powers.
63. The rapporteur would like to highlight that no matter which
direction the reform takes, part of the reform should be to strengthen
and clarify Frontex’s legal obligation to identify asylum seekers
during its operations and then to refer them to the relevant authorities.
8.3 The European Asylum
Support Office
64. The newly created European Asylum Support Office
(EASO) – still in the process of recruiting its staff – is faced
with a challenging task from the outset.
65. Indeed, EASO aims at supporting member states in their efforts
to implement a more consistent and fairer asylum policy, for example
by helping to identify good practices, organising training at European
level and improving access to accurate information on countries
of origin. It will also provide technical and operational support
to member states facing “particular pressures” (namely member states
receiving large numbers of asylum claims), via the deployment of
asylum expert teams, thus contributing to alleviate some of the
pressure on their systems.
66. On 1 April 2011, the European Commissioner for Home Affairs,
Ms Cecilia Malmström, announced the signing of the Operating Plan
for the deployment to Greece by EASO of an EU Asylum support team.
This team is constituted of experts of several member states. EASO’s
action in Greece aims at supporting Greece in developing a fully
functioning asylum system by 2012.
67. EASO is also likely to have an important role to play in any
enhanced intra-EU relocation programme. EASO could administratively
manage the process by carrying an annual assessment of the needs
for relocation across the EU and gathering applications for relocation.
8.4 Funding
68. The European Commission has set up four migration-related
funds: the External Borders Fund (€1 820 million for the period
2007-2013), the Return Fund (€676 million for the period 2008-2013),
the Refugee Fund (€628 million for the period 2008-2013) and the
Integration Fund (€825 million for the period 2007-2013).
Note In addition
to the regular funding, €25 million of emergency funding are available
and can be quickly mobilised under the External Borders Fund and
Refugee Fund.
69. The European Refugee Fund could be a major source of financing
of relocation within the European Union. The Fund would need to
be increased accordingly to cover the processing of the claim of
a relocated asylum seeker.
70. One of the weaknesses of the different EU funds is that they
do not allow for the financing of infrastructure, thus excluding
funding for construction of adequate reception facilities. This
is a gap that needs to be addressed by the European Union. This
lack of funding has a particular impact on small countries such as
Malta.
71. It should be recalled in this context that the Council of
Europe Development Bank could provide funding for infrastructure,
but on the basis of loans; this possibility should be explored further
in the future.
9 Way forward: fairness
both for member states and for asylum seekers
9.1 Practical means
of enhancing solidarity and responsibility sharing in Europe
72. Relocation of beneficiaries of international protection
or asylum seekers, policy harmonisation, and technical and financial
assistance could help better balance what is currently unevenly
distributed amongst European states.
73. Co-operation, as a means of greater solidarity, can take many
forms. States can assist one another by:
- assisting with borders controls, interception of boats
and rescue of people in need:
- facilitating reception;
- providing assistance for screening those with possible
international protection needs;
- helping with asylum determination and fair and efficient
asylum procedure;
- facilitating returns (both of irregular migrants and of
failed asylum seekers);
- accepting resettlement and relocation (prior to or after
asylum determination);
- tackling the root causes.
74. A variety of assistance is required. In the context of Frontex
operations, equipment such as boats, planes and helicopters are
needed and personnel are also required. For reception, funding is
required not just for emergency reception but also for contingent
planning. For screening, expert assistance, including legal assistance
and interpretation, could be made available. The same is also required
for asylum determination, but more structural assistance may also
be needed for dealing with asylum claims in general (as is the case
in Greece). Assistance may also be needed in the returns process
(negotiating returns and the physical act of returning persons).
Assistance may also be needed in re-settling persons.
75. The Dublin system has to be modified. The European Commission
tabled a proposal to that effect in 2008
Note which,
inter
alia, “is aimed at addressing situations of particular
pressure on Member states' reception capacities and asylum systems,
as well as situations where there is an inadequate level of protection
for applicants for international protection”. One of the most contentious
issues is a proposal to include a suspension mechanism that would
allow member states to suspend transfers in case of a country being
under specific pressure.
Note While the European
Parliament is largely in favour of this proposal, the European Council seems
to be very sceptical. It is urgent that the European Parliament
and the European Council come rapidly to an agreement.
76. The ability to suspend transfers under exceptional circumstances
when the system is overburdened would indeed enhance the credibility
of the Dublin system as a whole. In view of the M.S.S. judgment,
this proposal could prevent other member states being condemned
by the Court for having applied the Dublin system automatically.
Otherwise, the most exposed countries on Europe’s southern borders
will continue to feel that Dublin does not offer a fair deal.
9.2 Resolute efforts
needed to guarantee protection of human rights of refugees and asylum seekers
in countries of arrival and of stay
77. As was rightly stated by the Commissioner for Human
Rights, solidarity in itself is not enough, “European solidarity
needs to be matched by strong efforts at national level”.
Note
78. First and foremost, the countries where problems have been
clearly identified must do their part to improve the situation at
national level. Severe deficiencies have been found in detention
conditions in Europe, most recently in Greece, both in the M.S.S.
judgment and in a public declaration on Greece by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT).
Note The Commissioner
for Human Rights has also recently published a critical report in
this regard, in relation to Malta.
Note
79. Excessive recourse to detention still exists in a number of
member states, and conditions in detention in general, remain problematic.
Steps are required to improve this situation and further improvements
are necessary to improve procedures and remedies designed to safeguard
the rights of refugees and asylum seekers in Europe.
Note
80. If the problems are not solved at the national level, efforts
to have greater solidarity in Europe will be in vain. All European
countries should support the reforms in the countries at the forefront
of the arrivals.
10 Long-term solutions
do not stop at Europe’s borders
81. Solidarity should not stop at the borders of Europe.
While roughly 12 000 refugees and asylum seekers have reached Europe
following the events in North Africa, 750 000 persons have leftLibya, with most having a destination
in Egypt or Tunisia. Most are migrant workers, a significant number
have already returned to their home countries, but among them there
are thousands of people in need of international protection, from countries
such as Eritrea and Somalia, who cannot return home.The figures speak for themselves
and it is clear that the responsibility borne by the African neighbouring
countries is far heavier than the one carried by Europe. According
to the UNHCR, Egypt and Tunisia are doing their utmost to receive
these people.
82. Europe should be doing more to share responsibilities with
countries beyond its borders. While it is understandable that European
states feel that they have enough spontaneous arrivals, showing
solidarity with Africa by considering resettlement, at least of
a small number of refugees, would send a political signal of Europe’s
willingness to co-operate with its neighbours of the southern Mediterranean
for the benefit of their mutual interests. European countries should
in priority consider resettling the refugees with specific medical needs,
for instance those who have survived torture or trauma and those
who need specific care that cannot be provided in the country in
which they have found refuge. On 1 March 2011, UNHCR published a
“proposal for an emergency resettlement effort in the context of
the Libya emergency”. By so doing, UNHCR expressed its hope that
countries would be able to offer resettlement places additional
to their agreed quota for 2011.
83. In the long term, Europe will need to show increasing solidarity
with the political and economic transitions in the southern Mediterranean
and also in other African countries.
84. The European Council has recently broadly endorsed “A partnership
for democracy and shared prosperity for democracy and shared prosperity
with the Southern Mediterranean”, the aim of which is to propose
a new approach for a long-term partnership for migration, mobility
and security. By so doing, Europe should enable African countries
to develop their asylum systems as well as their border surveillance
capability.
11 Conclusions
by the rapporteur
85. The first responsibility of each country in Europe
must be to maintain its own border security. It appears that some
countries are failing to do this and thereby transferring the burden
of illegal immigration to other countries. This is particularly
so within the Schengen area and it is doubtless the realisation
of what has been happening that has led to recent moves by France
and other countries in Schengen to call for the reintroduction of
their own border police.
86. The second responsibility of each country should be to set
up an administrative system which facilitates the processing of
claims for asylum fairly and effectively so that those with genuine
claims are identified at an early stage and those with bogus claims
removed so as not to clog up the system for those in genuine need
of humanitarian assistance. Greece has admitted to having problems
in achieving this objective and it is, therefore, welcome that other
countries have shown themselves willing to offer assistance to the
Greek authorities.
87. The third responsibility of each country is to ensure that
those engaged in the smuggling of migrants are deterred by effective
mechanisms for detection, apprehension and punishment. This seems
to be an area where countries are failing and it has been highlighted
by Europol in its most recent report as being a significant cause
for concern about security within Europe.
88. The M.S.S. case concerned the application of the Dublin II
Regulation. That regulation was drawn up and agreed to by signatory
countries in order to prevent forum shopping by asylum seekers of
the very kind which now seems to be happening as a result of the
inability of countries to be able to return asylum seekers first
registered in Greece to Greece.
89. Forum shopping is to be expected where there is a variety
of legal jurisdictions and legal systems. The Dublin II Regulation
has been supported because it is common sense that, as all asylum
claims are dealt with under the 1951 Refugee Convention, forum shopping
should not be justified. Some of the criticisms of Dublin II are,
therefore, unreasonable. What is important to ensure is that those
who are returned to another country under the terms of the regulation
are properly treated. As long as all applicants have access to proper
advice and representation and process of law, there should be no
need to try to harmonise outcomes. Indeed, to try and harmonise
outcomes would require a significant intervention by the European
Union into the sovereign right of each country to interpret international
law in its own courts. Statistics such as those of the UNHCR showing,
for example, that Germany recognised 63% of Iraqi asylum seekers
in 2009 while the Netherlands only granted protection to 27% cannot
be relied upon to tell the whole story. For example, it may be that Germany
attracts a higher proportion of genuine asylum seekers. For this
reason, the rapporteur does not believe that the introduction of
a fixed quota for acceptances of asylum seekers of particular categories
would be an acceptable way forward.
