House of Commons - Home Affairs

Select Committee on Home Affairs Second Report

8 INTERNATIONAL CO-OPERATION

Some recent developments within the EU

256. Asylum seeking is of its nature a phenomenon which crosses national boundaries. In dealing with it, the UK engages with other European nations both on a bilateral and an EU-wide basis.

257. In paragraphs 101-03 above we set out recent developments in relation to border controls jointly operated by the UK with France, Belgium and (prospectively) The Netherlands.

258. All EU countries are parties to the 1951 Convention on Refugees. Although individual grants of asylum are a matter for individual member states, the Treaty of Amsterdam, which came into force in 1999, gave the EU significant powers in relation to asylum and immigration. Under the treaty, the United Kingdom, Ireland and Denmark reserved the right to decide whether or not they will opt in to specific EU proposals on asylum. In October 1999 the European Council at Tampere in Finland decided to develop a common European asylum system. The aim was to harmonise individual states' procedures and practices in line with a uniform set of principles for determining asylum claims within the EU. The Tampere decision committed the EU to developing, in the short term—

"a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status."

In the longer term, there should be developed "a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union".[268] One of the principal objectives of the Tampere decision was to reduce secondary movement of asylum seekers within the EU, by harmonising standards and thus reducing 'pull' factors to individual countries.

259. In March 2003 the European Commission issued a paper reviewing progress towards implementing the common asylum policy.[269] The House of Commons European Scrutiny Committee summarised its conclusions: "matters [have] moved slowly and, where deadlines were met, it was sometimes because the only standards that could be agreed were low".[270]

260. However, some elements of the common EU asylum package have been agreed. They are:

The Reception Directive: this provides for EU-wide minimum standards for living conditions for asylum seekers, including access to education, health care and accommodation, and taking into account the needs of particularly vulnerable people. It also allows EU countries to refuse to support those seeking to abuse asylum systems. The Directive was agreed in April 2002 and comes into force in February 2005.
"Dublin II": this revises the Dublin Convention which provides for transfer of asylum applicants within the EU to the state deemed to be responsible for them under agreed criteria. Members states are now required to respond within six weeks to a request from another member state for information on an asylum-seeker. They will also be obliged to return anyone who has made multiple applications to the state in which the first application was made. Dublin II was agreed in November 2002 and came into force in September 2003.
Eurodac: this is the European electronic fingerprint database for asylum seekers and illegal entrants, implemented under Dublin II. It records the country in which an asylum seeker first applies for asylum together with personal data and fingerprints, and is designed to prevent applicants from lodging claims in more than one state. Eurodac became operational in January 2003.[271]

261. Parts of the common asylum package which have not yet been agreed are:

The Procedures Directive: this sets a framework in which all EU countries must examine asylum claims. It supports measures such as fast-tracking of claims and 'non-suspensive appeals' which have already been implemented by the UK Government.
The Qualification Directive: this aims to define refugee status, setting common minimum standards for determining who is a refugee under the 1951 Geneva Convention and who is a person qualifying for subsidiary protection, and to establish minimum standards for the content of protection for such persons.[272]

262. Some elements of these draft directives have attracted opposition from refugee organisations. For instance, Amnesty International described the draft Procedures Directive's proposals on 'safe third countries' and a reduction in in-country appeals as "seriously flawed in terms of human rights", and stated that the EU common asylum policy was "held hostage" to "national governments … competing with each other to see how far they can lower standards of refugee protection in Europe in response to populist pressures".[273] The meeting of EU Justice and Home Affairs Ministers in November 2003 postponed further consideration of the draft directives till May 2004.

263. In addition to these proposals on asylum, the EU is at the early stage of developing a common European policy on illegal immigration. The Seville European Council in June 2002 endorsed this objective. In June 2003 the European Council in Thessaloniki considered proposals for the development of unified policy on illegal immigration, smuggling and trafficking in human beings, external borders and the return of illegal immigrants. These include a Visa Information System, still at the planning stage, which the UK Government considers "potentially an extremely powerful tool for information purposes", improved operational co-operation between national border control agencies, and co-operation on the return of failed asylum seekers.[274] The European Commission has proposed the creation of a European Agency for the management of operational co-operation at the external borders of the Union.

Differing definitions of refugee

264. As we have seen, one of the aims of the Tampere Council in 1999 was to reduce secondary migration within the EU by harmonising member states' asylum policies and thus reducing 'pull' factors to particular countries. In one major respect this certainly has not been achieved. Germany and France interpret the 1951 Refugee Convention in a significantly narrower way than the UK. They do not regard persons fleeing from 'non-state persecution' as refugees within the terms of the Convention, whereas the UK, at least in some circumstances, does. 'Non-state persecution' means persecution by non-state agents in circumstances where the state fails in its duty to protect an individual from the persecutors.

265. In the Adan case in 2001, the House of Lords determined that there is only one true legal definition of a refugee within the meaning of the Convention.[275] Theoretically, this definition should be an international one, which is applicable in all states party to the Convention. States have, however, interpreted the Convention in different ways, especially in relation to the issue of persecution by non-state agents, and where the Home Office has wished to remove claimants to 'safe third countries'. The Law Lords concluded that the Secretary of State had wrongly proceeded to try to return refugees to France and Germany. He had acted under the assumption that the practice hitherto followed in those countries (whereby they had determined that Article 1A2 of the Convention applied only to persecution by the state and not in cases where there was no state to which persecution could be attributed) fell within the permissible range, when it did not.

266. The Horvath case, decided by the House of Lords in 2000, is the leading case in relation to non-state agents.[276] The case featured the racially motivated persecution of a Slovakian citizen of Roma origin, by local skinheads. The court concluded that where a state was not willing or able to fulfil its obligations to protect its citizens, then this could amount to persecution, even though it was not the state itself that was persecuting an individual. This obligation only arose where the person's own state was unable or unwilling to discharge its own duty to protect its own nationals, and an applicant for refugee status has to show that the persecution which he feared consisted of acts of violence or ill-treatment against which the state was unable or unwilling to provide protection.

267. The effect of these decisions, by preventing the return of asylum seekers from the UK to France or Germany, has arguably been to create an incentive to claim asylum in the UK rather than elsewhere in Europe.

268. The EU draft Qualifications Directive, which we described in paragraph 261 above, provides for EU-wide harmonisation around the present, wider, UK interpretation of the Convention rather than the narrower Franco-German one. Adoption of this Directive would therefore remove the 'pull' factor towards the UK arising from the present difference of interpretation, although possibly at the expense of creating a greater 'pull' factor for Europe as a whole. One of our witnesses, Mr Martin Howe QC, opposed any decision by the UK Government to opt in to any such harmonisation on the grounds that 'communitising' this area of law would entail "further delays in the asylum process as a result of opening up EU routes of legal challenge".[277] The position of the UK Government is that it will participate in the adoption of this directive. (Of the other countries with the right to opt out on asylum proposals, Ireland is also participating but Denmark is not.)[278]

269. We consider that the current interpretation of the 1951 Convention by the UK courts, to allow non-state persecution as grounds for claiming asylum, is too broad, and exerts an undesirable 'pull' factor towards the UK by contrast with Germany and France. We support the need for European harmonisation in this area, but regret that the EU draft Qualifications Directive proposes harmonisation around the broader rather than narrower interpretation of the Convention. We appreciate the difficulty of re-opening negotiations on this issue, although we would support attempts to do so. Nonetheless, we believe that harmonisation on the proposed basis would be better than no harmonisation at all.

The need for Europe-wide consistency on asylum

270. The proposed harmonisation of definitions of refugees is part of the wider process, initiated at Tampere in 1999, of moving towards common European policies on asylum. The aim is to minimise secondary migration of asylum seekers within the EU and 'pull' factors to individual countries arising from their different asylum policies and practices. We support this objective. However, there is a danger that harmonisation of asylum procedures across Europe will not eliminate secondary migration as long as the way individual countries actually implement those procedures varies widely. As we have seen, there are grounds for suspecting that the UK is more rigorous in its observance of due process and its honouring of international obligations than some other European countries. There is also evidence that the perception that this is the case influences the decisions of asylum seekers to come to the UK.[279]

271. We believe that there is an urgent need to gather objective evidence on the extent to which EU countries vary in their approach to asylum. We recommend that the UK Government should take steps to secure the agreement of its EU partners to the establishment of a body with appropriate powers and expertise at EU level to monitor and report regularly on the practical operation (rather than the theory of operation) of the asylum system in each EU member state.

Transit processing centres and 'zones of protection'

272. On 27 March 2003, the Home Secretary announced "a radically new approach to delivering the reduction of asylum seeker numbers that we need … We have now put proposals to our EU partners for zones of protection which involve working with the United Nations High Commission for Refugees".[280]

273. These proposals had two strands:

Transit processing centres to process asylum claims where asylum seekers would be safe and decently treated without having to travel to the countries in which they want to seek asylum
Regional protection zones near areas of conflict or natural disaster.

274. In May 2003 the Home Office submitted to the European Commission a discussion paper on the proposals.[281] This called for "better management of the asylum process globally". It set out the proposals for transit processing in more detail:

Asylum seekers arriving in the UK (and other EU member states) could be transferred to a transit processing centre outside the EU where their claims would be assessed. This would allow participating countries to uphold their obligations under the 1951 Convention and the European Convention on Human Rights.
The centres could be managed by the International Organisation for Migration (IOM), with a screening system approved by UNHCR. It could be financed by participating states and the European Commission.
Those granted refugee statue would be resettled within the EU, on a burden-sharing basis. Failed claimants would be, wherever possible, returned to their country of origin.[282]

275. Several of our witnesses criticised the proposals for transit processing centres. The Refugee Legal Centre commented that "the proposals are not, in our view, either fair or workable", because they would make it difficult for asylum seekers to obtain legal advice or pursue appeals effectively, and shift the burden of asylum seekers disproportionately to developing countries.[283] Likewise, the Immigration Advisory Service argued that the proposals would:

284

JUSTICE argued that the Government's proposals would "violate the UK obligations under the Refugee Convention and international human rights law".[285]

276. Other witnesses were less hostile to the Home Secretary's ideas. Mr Peter Gilroy of Kent County Council said that transit processing centres "may be part of the solution if you can get the countries where they are going to operate working with you effectively".[286] Mr Michael Kingsley-Nyinah, Deputy Representative, London Branch Office, United Nations High Commissioner for Refugees, said that UNHCR favoured a proposal with some similarities to that put forward by the UK Government: "smaller, well managed, tightly managed, closed centres in certain parts of Europe" which would be used "to decide asylum applications that are deemed to be manifestly unfounded".[287]

277. On 8 May 2003 the Minister of State told us that "there has been dialogue both with countries interested in working with us, … and there is every indication that there is sufficient interest from countries for this to be a viable possibility".[288] She added that the International Organisation for Migration and the UNHCR had been "very supportive" of the proposal.[289]

278. The UK Government's proposals were discussed at the European Council at Thessaloniki in June 2003. The Minister of State told us in October that "as a result of the discussions there on the proposals for transit processing centres, we have decided not to progress at the moment". She added that there were "significant legal issues" with the proposals.[290]

279. The Government's other proposal, for 'zones of protection', has received a relatively favourable response. The European Commission reported on the discussion paper submitted by the UK before the Thessaloniki Council that it—

"provides the right analysis of the deficiencies in the current international protection regime and asks the appropriate questions, helping to address the challenges the EU asylum system faces."

280. At Thessaloniki the European Council urged the Commission—

291

281. UNHCR itself issued a statement just before the Council, distancing itself from the British proposals:

292

282. The UK Government has moved to adapt its proposal in the light of UNHCR's criticisms. In a Written Answer in November 2003, the Minister of State commented that—

293

In another Written Answer the Minister asserted that "this is not about shifting the burden to poorer regions".[294] She told us that the Government was working with The Netherlands and Denmark to seek EU support for pilot projects, as well as working bilaterally with African countries to assist them develop internal management arrangements for dealing with their refugee problems.[295]

283. We strongly support the Government's initiative in exploring ways of assisting the regions in the world most directly affected by refugee flows. The Government is also right to seek to enlist the support of EU partners in doing this. European states have a humanitarian duty to provide assistance and protection not only to the comparatively small number of refugees who succeed in travelling to Europe, but also to the much greater numbers who remain close to their countries of origin. This is desirable not only on humanitarian grounds but because the restrictive measures being imposed at domestic and EU level are significantly reducing the chances of genuine refugees being able to come to Europe to make an asylum claim.

284. As we have commented earlier, the asylum seekers who make it to the UK are an unrepresentative sample of asylum seekers worldwide, being predominantly healthy, able-bodied young men with a strong sense of personal purpose, and often from a relatively prosperous background. The UK has a moral obligation to assist also the population of refugees who remain in their regions of origin, and who may be poor, ill, old, female or otherwise vulnerable.

285. At present the Government's proposals lack clarity. The Home Office should issue a clear statement of what "regional protection" is intended to achieve, and set out a detailed strategy for achieving it.

286. We support measures to enhance assistance to refugees overseas, but believe this must be done in liaison and co-operation with UNHCR. It is essential that the existence of a protection zone does not become a reason for a refusal of an asylum application received in the UK.

287. We have argued above[296] that if the effect of the British Government's policy is to make it more difficult for genuine refugees to gain access to the UK to claim asylum, then it is essential for the Government to be pro-active in seeking to assist refugees in or near to their countries of origin, as well as to develop a clearer policy for assisting refugees through UNHCR (see next section). We believe that this argument holds good on an EU-wide scale as well, and recommend that the Government should seek the implementation of concerted, pan-European policies of active assistance to refugees in or near the countries of origin and co-operation with UNHCR in accepting quotas of refugees.

The UK's acceptance of quotas of refugees

288. The Government announced in October 2003 that it would establish a resettlement programme to provide a legal gateway into the UK for bona fide refugees who would otherwise be unable to travel to the UK.[297] The programme will be operated jointly with UNHCR, which operates similar programmes with 18 other countries, including the United States. It is intended to benefit up to 500 refugees during financial year 2003-04. Those initially assisted will be refugees referred to the UK by UNHCR from West and Central Africa. The Government has stated that "as the programme develops, we will consider further locations where UNHCR is in operation". Asylum seekers will be able to claim asylum from within the country where they are living, but their application must be made to UNHCR, not to the UK post there.

289. Applicants referred to the UK by UNHCR will be interviewed in their current country of asylum by Home Office staff based in Accra. They will undergo health and security screening before a decision is made. The decision on their application will be made by caseworkers in the UK "against UK-specific criteria".

290. The quota of 500 is a maximum for financial year 2003-04. Successful applicants who arrive in the UK before the end of the financial year will be counted against the quota. No unused portion of the quota can be rolled over to the following year. The Home Office states that it will set future quotas at a level which will be "established by Ministers each year having considered the resources available, need for resettlement globally, and impact on local services in the UK".[298]

291. We support the UK's participation in the UNHCR's quota refugee resettlement programme. This will enable the granting of refugee status to be made to those who are adjudged by UNHCR to be most in need and who are likeliest to benefit from relocation to a new life in the UK. The scheme offers an opportunity for asylum seekers to gain refuge in the UK without having to place themselves in the hands of criminal gangs. At present it operates only in West and Central Africa, but we recommend that in future years the scheme should be expanded to cover other parts of the world with acute refugee problems. If the level of asylum applications to the UK continues to diminish in response to the Government's restrictive measures, we believe that this opens up an opportunity progressively to increase the annual resettlement quotas. We recommend that the Government should make a commitment that if the number of successful asylum applications made in the UK declines, Ministers should increase the resettlement quotas each year by a proportionate amount.

Addressing the root causes of migration

292. Since the early 1990s there has been growing awareness within the EU of the need to pay attention to the root causes of migration. In December 1992, the Edinburgh European Council called for measures to address the causes of migration, including preservation of peace, an end to armed conflicts, respect for human rights, encouragement of democracy and trade policies aimed at improving economic conditions. Subsequently, the Task Force on Justice and Home Affairs in the EC Secretary General's Department called for a comprehensive approach aimed at implementing such measures.

293. The European Council at Tampere in 1999 also agreed to continue the mandate of the High Level Working Group on Asylum and Migration, which was charged with producing Action Plans for specific countries which address the root causes of migration. This is a 'cross-pillar' group containing not only justice and home affairs experts but experts in the fields of foreign, security, development and economic policies. The Group has drawn up Action Plans for Afghanistan, Morocco, Somalia, Sri Lanka and Iraq.

294. The Institute of Public Policy Research, in a report entitled States of Conflict, welcomes the principle of the EU Action Plans but makes some specific criticisms of them. Firstly, they cover only four of the top ten source countries of asylum seekers for the EU. Second, it is claimed that there was insufficient consultation with the governments concerned. Thirdly, "they are lacking in new ideas and specific proposals for action", and do not set measurable targets. Finally, the report comments that "the Group's work has largely stalled … and it has decided for the moment to launch no new Action Plans".[299]

295. The report also criticises the EU for focussing its attention on measures to prevent illegal immigration rather than on tackling the root causes of migration. It expresses concern over the recent tendency to link development aid to Third World countries to their willingness to assist in the management of migration flows, especially through the mechanism of readmission agreements.[300]

296. Dr Heaven Crawley, one of the co-authors of the report (and formerly head of the Home Office's asylum and immigration research programme) told us that in terms of content the Action Plans were "really quite superficial". She contrasted this with the detail and seriousness with which the European Commission was developing policy on matters such as border control and illegal immigration. She argued that "most of the … policy effort is going into an immediate 'How do we stop people coming here?'", whereas what was needed was "a much more long-term view which looks at development, human rights abuse, how we invest, the use of trade as a level for making change happen".[301]

297. The IPPR report argues that the root causes of "forced migration" should be tackled through conflict reduction strategies.[302] The Global Conflict Prevention Pool was set up by the Government in April 2001 as "a major innovation in joined-up government".[303] It is jointly funded by the Foreign and Commonwealth Office, the Ministry of Defence and the Department for International Development, and is aimed at conflict reduction in 15 priority areas including the Balkans, Afghanistan, the Middle East, Nepal and Indonesia. An Africa Conflict Prevention Pool does similar work in relation to Africa. The joint Public Service Agreement target of the three departments contributing to the Global Pool is:

304

298. We explored with the Minister of State why the Home Office did not form part of the Pool. She replied that this was because "their focus is very specific", and that the Home Office worked closely with the FCO and DfID in other ways.[305]

299. We support the Government's establishment of a Conflict Prevention Pool. We hope that the Government will pursue the objectives of the Pool at EU level, where commitment to conflict prevention appears to have been hitherto more theoretical than real. We believe that it is a mistake for the Home Office to be excluded from the Pool, and we recommend that they be added. We also recommend that the aims of the Pool be changed to prioritise conflicts likely to produce significant numbers of asylum seekers to the UK. We recommend that the Government should work within the EU to bring a greater external focus to EU policy, and to secure greater use of EU development funds for purpose of conflict prevention.

268 Cited in JUSTICE, Asylum: changing policy and practice in the UK, EU and selected countries (2002), p 53 Back

269 Commission Communication, Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum (2003) Back

270 Select Committee on European Scrutiny, Twenty-eighth Report of Session 2002-03 (HC 63-xxviii), published 17 July 2003, para 19.3 Back

271 Ev 172; Qq 777, 781; Home Office press notice 056/2003, UK pushes for progress on EU common asylum package, dated 26 February 2003; HC Deb, 17 November 2003, cols 673-74W Back

272 See previous footnote. Back

273 Amnesty International press notice, 24 November 2003 Back

274 See Select Committee on European Scrutiny, Thirty-fifth Report of Session 2002-03 (HC 63-xxxv); quotation is from para 14.4 Back

275 Adan v Secretary of State for the Home Department [2001] 1 All ER 593 Back

276 Horvath v Secretary of State for the Home Department [2000] 2 All ER 577 Back

277 Ev 182; Qq 139-41 Back

278 Justice and Home Affairs Council, Brussels, press notice, 27 November 2003 Back

279 See paragraph 75 above. Back