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Refuge and Asylum

Sandra Lavenex

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Whereas migration balances for EU member countries have grown continuously since the 1990s, the number of asylum-seekers has declined sharply since 1993.

Numbers of asylum-seekers in Europe 1985-2007 (bpb) Lizenz: cc by-nc-nd/2.0/de

This is attributable not so much to a diminution in reasons for leaving the countries of origin as to the tightening of asylum policy, which to a large extent has been coordinated at the European level. The sharpest decrease is recorded in Germany: compared with the absolute peak of 438.190 in 1992, the number of asylum applicants has declined significantly, comprising around 20.000 applications a year since 2006. Whereas the total number of asylum applications in the EU has decreased by almost half since 1999, individual countries on the external EU borders such as Greece, Malta, Spain and Hungary record growing numbers.

The regulations of jurisdiction over the application review process contained in the 1990 Dublin Convention and, since 2003, the corresponding EC regulation (343/2003) make up the core of European policy for cooperation in matters of asylum. In cases where no member state has granted an asylum-seeker legal admission by means of a visa or residence permit, or where there is not already another member of the asylum-seeker´s family who has been granted asylum, the first state on whose territory the asylum applicant sets foot is responsible for reviewing the asylum application. To enforce this regulation, an electronic information system was adopted to record the fingerprints of asylum-seekers and irregular immigrants ("Eurodac" Regulation 2725/2000).

It was already clear from the 1992 Maastricht Treaty work programme that national asylum standards would need to be harmonised to a certain minimum extent before it could be implemented. Nevertheless, it was not until the Treaty of Amsterdam established a binding timetable that minimum standards were successfully adopted for harmonising procedural and substantive asylum requirements. In real terms, these steps towards harmonisation were intended to ensure that there would be no incentives for asylum-seekers to undertake further migrations that would allow them to have their application for asylum reviewed in several successive member states, thereby extending their stay in the EU ("asylum shopping"). However, such a system of exclusive regulation of jurisdiction is only legitimate if the member states are using roughly the same criteria and procedures for recognising refugees. Directive 2003/9, which specifies minimum standards for the admission of asylum-seekers, aims to harmonise the living conditions of asylum-seekers in all member states. However, the directive leaves central questions unanswered, such as the right to gainful employment while applicants' papers are processed, and grants member states wide discretion in its implementation, leading only to a rudimentary harmonisation of admission conditions. Due to their sensitivity with regard to core aspects of national sovereignty, directives to harmonise the definition of a refugee and asylum procedures were greatly disputed and were adopted only after considerable delays.

Common criteria for recognising refugee status were adopted in Directive 2004/83 (also known as the Qualification Directive). The directive is based on and appropriates the definition of a refugee used in the 1951 Geneva Refugee Convention. Since the directive furthermore recognises non-state persecution, its unanimous acceptance in the Council of Ministers presupposed that legislation in member states, especially Germany, be brought in line. In recognising acts of a gender-specific, child, and non-state persecution as grounds for awarding refugee status, the directive pursues quite a progressive definition of this status. However, it also includes some points that have been criticised by refugee organisations, such as the exclusion of EU citizens from a right to asylum and the recognition of refugee protection granted by non-state actors (which, they say, could allow states to divest themselves of the responsibility), and a lack of clarity with regard to the application of the requirement to seek an internal flight alternative (which implies that asylum can be refused if the person concerned can live free from persecution in another region of their country of origin). This last point in particular leaves plenty of room for interpretation in the way the member states recognise refugee status – and for unequal application of the law. Finally, the third central asylum directive is the one on the minimum standards on procedures for granting and withdrawing refugee status (2005/85). Although it aims to define minimum standards on procedures for granting and withdrawing refugee status, the directive contains many exceptions which once again allow member states a great deal of discretion in its implementation. The vague provisions relating to safe third countries and so-called "super-safe" European third countries in particular have met with criticism from the European Parliament (2005), among others. Thus in these cases it is not only the "suspensive effect", i.e. the right of an asylum-seeker to remain in the member state pending appeal, that is left open. The possibility of excluding from asylum procedures asylum-seekers who have travelled illegally out of a safe European third country is regarded as particularly sensitive for observing the principles of non-refoulment contained in international refugee law, which prohibit the removal of refugees if that removal puts them at danger.

The European Council of The Hague in 2004 envisaged the completion of a common European asylum system by 2010. In an evaluation of the harmonisation process to date, the European Commission delivered a relatively gloomy prognosis for achieving this goal. Firstly, the directives adopted to date contain many loopholes and a lot of room for interpretation, which, upon closer examination, would require more extensive harmonisation. In light of member states' previous reluctance to adopt supranational regulations, this harmonisation will take place initially through the promotion of the exchange of information, in part by creating a European Support Office to oversee asylum matters. On the other hand, there is the question of solidarity among member states in admitting asylum-seekers and refugees. Contrary to the idea of a communitised asylum policy, the numbers of asylum-seekers in individual countries continue to differ greatly, and despite increased cooperation to protect the external border and the setting up of a refugee fund, mechanisms for member states to share the burden are still lacking. The proposal of the French EU presidency in the summer of 2008 to create, as part of the "Pact on Immigration and Asylum", a supranational European asylum office as a central body responsible for processing asylum applications could not be agreed on since the majority of the member states will not contemplate transferring sovereignty over asylum recognition to a central body. As a countermove, Malta was able to advance its demand that this declaratory Pact should include the possibility of setting up a coordinated resettlement system within the EU for recognised refugees.

As is the case with irregular migration, foreign policy is an increasingly important dimension in asylum and refugee policy. Not only does the EU support associated states in developing asylum systems, but it also promotes the development of admission capacities and the protection of refugees in or near the regions from which they originate by means of so-called refugee protection programmes. In the context of these foreign policy activities, the EU works with international organisations such as the UNHCR. The falling numbers of asylum-seekers in the EU documents the effect of restrictive regulations in policies on admission, visa and asylum procedures, while states on the periphery of Europe such as Ukraine, Morocco and Libya are confronted by an ever growing refugee problem.



  1. See Green Paper 2007.

  2. See Lavenex 2007.

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