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The

Europeanisation

of

Europe s

Asylum

Policy

ELSPETH GUILD*

Abstract

This paper examines how the refugee

protection

obligations

of European

countries have

been affected by increasing integration and enlargement of

the

European Union. The

creation

of

an EU

area without internal border controls for

the

movement of persons has

had a

profound

effect on the

way

in

which countries

in

the

European area interpret

their

protection obligations. On the one hand, there has been an attempt by

EU

Member

States

to

justify

an interpretation

of

protection

obligations which permits

a

pooling

of

responsibility for asylum seekers and refugees among a number of states

(often

to

the

detriment of their

neighbours),

on

the

other, there has been an increasing

judicialisation

of protection

duties at the

supra-national level

through the

European Court

of Human

Rights

which has pushed in the direction of a collectivisation of

responsibility.

An

impor-

tant

tension

is evolving regarding the extent

of

protection

obligations which

is

being

played out on the body of the

refugee:

when

is

she within the

jurisdiction

and when

is

she not?

1 Introduction

There

are now 25 Member States

of

the

European Union

all

of

which

are

parties to the UN Convention relating to the

status

of refugees 1951

and its

1967

protocol (the Geneva Convention).

Indeed,

ratification of

the Geneva

Convention is a requirement of all states

seeking to

join the

Union. Some

of

the

EU

25 are

also

among

the

founding

states

of

the

Geneva

Convention and their diplomats

were central

to the

drafting

of

the

document.

1

From

this

expression

of

very

substantial

commitment

to

the

international instrument, many

consider

that

there has been a resiling

over the past

two

decades

among

the

original Member

States

of

the

Union from their commitment to provide protection on their territory

for

persons

fleeing

persecution and

a contamination of the new Member

States

with the spirit

of

rejection.

2

Is

this so? If

yes,

how did this

come

to

be and

to

what

extent

is

it the result

of EU policies?

The UN High

Commissioner for Refugees in his

World

Refugee Day

message,

2005,

stated

Unfortunately,

however,

finding safety in

today s

world

is

becoming increasingly

difficult.

While developing countries

least

Professor,

Radboud University

of

Nijmegen,

Netherlands;

Partner, Kingsley

Napley,

London

S.

Kneebone,

The Rfugee Convention 5

re rs On:

Globalisation

and

InternationalLaw,

Ashgate, 2003.

2 D. Boutillet-Paquet,

L Europe et

l droit

d Asile,

L Harmattan,

Paris 2001.


3/23

The Europeanisation

o

Europe s

Asylum

Policy

631

able to

afford it

host

most

of

the world s

refugees,

many industrialised

nations

continue

to impose

ever stricter

controls on

asylum. All

of

us bear

a

responsibility

for ensuring

that

those

genuinely

in

need

of

international

protection

receive it .

This

rebuke

is

undoubtedly directed

towards

the

European

Union

among

others.

According

to

the UNHCR,

Overview

of

Asylum

Applications

Lodged

in Europe

and Non-European Industrial-

ized Countries

in 2004 ,

asylum application

levels in

the EU 25

have

decreased

by

19

per

cent in

2004 in comparison

with

2003.

There

are

now less

than

320,000

applicants

per

year.

Since

the

peak

in 2001 in the

EU there

has been

a

drop

over

36

per cent.

In comparison with the

much higher peak

of

1992

when there

were

700,000

applicants

in

the

EU

15

the current

levels in the

enlarged

European

Union ought to be

a

matter of

concern

is

the

Union

actually

shouldering

its

responsibilities

to the

international community

to provide

protection

to

refugees in

num-

ber commensurate

with its

wealth and

size?

The answer

is clearly

no .

On

1

July 2005, UNHCR

held an

emergency

meeting

in

Geneva

seek-

ing

resettlement

countries

for Uzbek

refugees

being expelled

from

Kyrgyzstan.

In the

face

of

overwhelming

evidence

of a

humanitarian

disaster

unfolding,

the only

European

state

which offered

resettlement

to these

refugees

was Romania,

a

state not

yet within

the

EU

(it

will

join on

1 January 2007)

and

with

among the

lowest

GDP levels of all

the

candidate

Member States.

UNHCR

publicly expressed

its

gratitude

to

Romania on 28

July. None

of the EU 25

all richer

and

better

placed

through

their

common

solidarity

arrangements

such

as

the

European

Refugee

Fund, offered

places to

these persons

in desperate

need

of

refuge. It

is difficult not

to

be shocked

by the

current situation.

This article will seek

to explain

the

increasingly

strident position

of

the

EU

regarding

the

protection

of refugees

on its

common

territory

through

the examination

of

how that

common

territory has come

into existence.

By looking

at

the

processes

of

de-territorialisation

of

sovereignty

in the

EU, the process of de-territorialising

protection obligations

may

also be

revealed.

When

geographical

territory is

no

longer

the

object of sovereign

responsibilities

there is space

for an opportunistic

exclusion

of protection

responsibilities

which

are

tied to sovereignty.

2

What

is the EU?

According

to

its treaties, the EU has

only

two tasks

establishing

a com-

mon market

and

an economic

and monetary

union.

In

order to achieve

these tasks the

EU activities

include an internal

market

characterised by

the abolition,

as between

Member States,

of obstacles to

the

free

move-

ment of goods,

persons,

services

and

capital .

Thus

at

the

heart of the EU

there

is and has

always

been an ambition

and

duty

to reconfigure

the

territory of the

Member States

in order

to

achieve economic

aims.


4/23

632

Elspeth

Guild

The

concepts

of a

common

market and

EMU presuppose

that

states

relinquish sovereignty

over

their

geographic

territory

in order to achieve

these

ends.

3

Human

rights were

not

part

of

the original schema

of

the EU.

The

first

glimmerings

of concern

about

human

rights

issues come

in the

1960s via

the European

Court

of Justice.

The first reference

by

that Court

to the

European

Convention

on

Human

Riqhts, the foremost

regional

human

rights instrument, came

only in

1974. It was

not

until 2002

that

a

case

before

the

European

Court

of Justice was

decided

on the basis

of the

ECHR

obligations

of the

Member

States and

as

part

of

EU law in favour

of an

interpretation of EU

law

which

would benefit

the

applicant.

5

The EU

legislator

did

not

get

around

to

including

an express

reference

to

human

rights in the

EU

treaties until the

preamble

to

the

Single

Euro-

pean Act

1986, which

mentions the European

Convention

on

Human

Rights.

The

Maastricht

Treaty

signed

in 1991,

but

only

ratified in 1993,

created

the Treaty

on European

Union

which for

the first

time referred,

in the

body

of the treaty,

to the

human rights obligations

of

the

Member

States

and

the

European

Convention

on

Human

Rights.

It required

the

newly

created

European

Union

to respect

fundamental rights,

inter alia as

guaranteed

by the

European Convention

on

Human

Rights.

1991 was

also the

year in which

the EU

Member

States

saw one

of the highest

ever

recorded

levels

of

applications

for asylum

within

their

territories

and

for

the first

time reference to

the

Geneva

Convention

was made

in an EU

treaty

the

Treaty on

European

Union

(created

by the

Maastricht

Treaty), which provided

that:

the

matters referred

to in

Article

K.

1

[including

asylum policy]

shall

be

dealt

with

in compliance

with the European

Convention

for

the

Protection

of

Human

Rights

and Fundamental

Freedoms

of 4

November

1950 and

the

Convention

relating

to the

Status of Refugees

of

28

July 1951 and having

regard

to

the

protection

afforded

by

Member

States

to persons

persecuted

on political

grounds.

I will

return

in the

next

sections

to these

treaties and

what they mean

for

asylum seekers

and

refugees and

the deterritorialisation

of protection

obligations.

6

The failure

to include

refugees as

a central

part of the

EU project

was

not simply

an

oversight

by

an economic entity

which was

focused on

P.

Craig,

The

Evolution

of

the Single

Market

in C.

Barnard

andJ.

Scott

(eds.),

The

Law

of

the

Sinkle

uropean

Market

Unpacking the

Premise

Hart,

Oxford

2002, 1-41.

4/73

Nold

[1974]

ECR

491.

See,

B.

de

Witte,

The

Part

and Future

Role

of

the

European

Court

ofJustice in the

Protection

of Human

Rights ,

in

P.

Alston t al (eds.),

EUHumanRights

OUP,

Oxford,

1999

859 98

5 60/00 Carpenter

[2002]

ECR 1-6279.

In general,

see,

C. Dias

Urbano

dc Sousa

and

Ph.

de

Bruycker

(eds.),

The

Emergence

of

a European

Asylum Policy

Bruylant,

Brussels,

2004.


5/23

The Europeanisationof

Europe s

Asylum Policy 633

market

integration, it was a

positive

choice.

One of the four fundamental

freedoms

of

the EU

is

the free

movement

of

workers. This was

included

in

the original

EEC

Treaty

in 1957. The transitional period

to

achieve

this free

movement ended

in

1968.

While

there

was

pressure

to

include

refugees in the implementing

legislation

on free

movement of workers,

the

Member

States could

only agree a resolution (that

is non-binding)

on the

matter

where they

agreed

to treat favourably

where possible

requests

by

recognised

refugees to move

and

work in

other

Member

States.

7

This

is

very

different

from

the

directly applicable

right granted

to all

nationals of

the states

and

their family

members, including

third country

nationals, to move and

work anywhere

in the common

territory.

The only place

where

refugees were

actually

included in

the

personal

scope

of

an

EU

legislative

measure

before

1999

was

in

regula-

tion

1408/71

on

coordination of

social

security

systems

in

the Member

States.

Here there

is

an express

inclusion

of

refugees in the scope

and

the definition

of

refugee

is

that

in the Geneva Convention.

When the

right

of

refugees to benefit

from equal treatment in

social

security

guar-

anteed

by the

regulation

was

finally litigated

in 2001

the

European

Court

of

Justice declined

to

interpret

the regulation

in

favour

of

the

refugees,

stating

that

the

regulation

requires

the individual

to have

been

affiliated to

the social

security system of

more than one Member

State

in

order

to benefit.

8

As

refugees do

not

have

a right

of

free

movement they

are trapped in one Member

State

and

never have the

opportunity

to

become affiliated

to the social

security system of

more

than

one

Member

State.

This

is

perhaps, the

first

EU

example

of

apparent

inclusion of

refugees

into the rights system of

EU law but

their actual exclusion because

of the

territorial restrictions

on their movement which

have the

effect

of render-

ing

them

invisible in

law.

This

invisibility

will gradually

change as refu-

gees

become visible in EU

law;

they

are

the objects of increasing

efforts

to

render them

invisible

in

practice

by

ensuring they are

not

physically

present.

9

It

is not as

a result of oversight that the

EU

failed

to

embrace

refugees.

There was

even from the beginning of the EU project

an

antipathy

towards them which

resulted

in

their

exclusion from the

benefits

of

EU

free

movement

rights. This antipathy remains.

While

most other third

country

nationals who have been lawfully

resident in

a Member

State

for five years

acquired on 23 January

2006 the right to

move

and

reside

for work,

study or

other

purpose in any Member

State and an

EU

right

D.

Martin

and E.

Guild,

FreeMovement

of

Persons

in

the

uropean

Community,

Butterworths,

London,

1996, 235 and

following.

95 99

a alil

[2001]

ECR 1-7413.

G. NoU

and

J Vedsted-Hanesen,

Non-Communitarians: Refugees

and Asylum Policies

in

P.-Alston et al (eds.), n. 4 above,

359-410.


6/23

634

Elspeth

Guild

to

security

of

residence,

refugees

are excluded.

10

While

the Commission

has

frequently

stated

that

it

will

be

introducing

a measure

to

give

free

movement

rights

to

refugees

it

has not

done

so

as

yet.

To

conclude

this first

section,

what

is

the

EU?

For

our

purposes,

it

constitutes

a territorial

integration

project

which

is hostile

to refugees.

3

The

Single

European

Act

and

Refugees

The

objective

of the Single

European

Act 1986

was

the

abolition

of

controls

at

intra-Member-State

borders.

This

objective

was to

be

achieved

for goods,

persons,

services

and

capital

by

1992.

Implacable

opposition

by the

British

Government

delayed

the

process

and,

indeed,

as

it became

apparent

that

this

opposition

would

not

abate

quickly,

in

1997 it

was

formalised

in

the Amsterdam

Treaty

that

permitted

the

UK

(and

Denmark

and

Ireland)

to

opt

out

of

the

system.1

The

blueprint,

on

the

basis

of

which

the Single

European

Act

was

designed,

was

the

Commission s

White

Paper

on

integration

of

1985.12

Here,

refugees

do figure

as a

small

item

in an

annex.

The

question

of

the

movement

of

refugees

and asylum

seekers

was

not, however,

addressed

in

the Act

itself.

This

was left

to the

Member

States.

1

3

It

may

be

said

that

this

was

a

critical

moment

for refugee

protection

in the

European

Union

and

that

the

failure

to integrate

refugees

into the

project

has

led directly

to the

current

hostility

of the

EU

towards

refugee

protection.

1

4

Had refu-

gees been

included

in

the project

as

persons

also

entitled

to

free

move-

ment

across

the Union,

their

position

would

have

been

assimilated

to

that

of

nationals

of the

Member

States

(and now

third

country nationals

who

are

long term

residents).

It

would

also

have

meant

that

the

attempt

by

the

Member

State justice

and interior

ministries

to

maintain

territorial

bor-

ders

among

themselves

for

the

purpose

of determining

to

which

of them

asylum

seekers

and refugees

belong

would

not have

taken place

(or at

least

not on

the grounds

on which

it

was

argued).

1

5

By

leaving

this

part of

the

population

out

of the

free

movement

equation,

the

EU

became

a

hostage

to

its own

failure

towards

refugees

as

these

became

the people

on the

basis

of whom

the

creation

of

substantial

coercive

flanking

lO

Art.

3 2) c)

and (d) Directive

2003/109.

1

For

a

full discussion

see

B.

Rosamond,

Theories

of

uropean Integration

Macmillan

Press,

Houndsmill,

2000.

12

H.

Staples,

The

Legal

Status

of

Third

Country

Nationals

Resident

in

the

uropean

Union

Kluwer

Law

International,

The

Hague, 1999,

271-7.

13

E. Guild

andJ.

Niessen,

The

Developing

Immigration

and

Asylum

Policy

of

he

uropean

Union

Kluwer

Law

International,

The

Hague,

1996.

14

A

good

example

is

the

refugee

qualification

directive,

see

J.

McAdam,

The

European

Union

Qualification

Directive:

The

Creation

of a Subsidiary

Protection

Regime ,

17

JRL

461

(2005).

15

R.

Byrne

et al

examine

the

consequences

of these

policies

in

the

Central

and

Eastern

European

region

pre-

I

May

2004

see, R. Byrne

et al New

Asylum

Countries?Migration

Control

andRefugee

Protection

in an Enlarged

uropean

Union

Kluwer Law

International,

The

Hague,

2002,

5-28.


7/23

The Europeanisation

ofEurope s Asylum

Policy

635

measures

to

compensate

for the

loss

of

control

at the intra-Member-State

borders

was

based.

6

Refugees

became

the issue

with

which some

actors

at

the

national

level were

able to beat

those in

favour of

EU territorial

integration.

The

Single

European

Act provided

for

a

transitional

period,

ending

31 December

1992,

for the

abolition of all

controls among

the Member

States

on

the

movement

of

goods, persons,

services and

capital.

The

effect of

such

an abolition of

controls

was

to transform

the area of

geo-

graphic

sovereignty

among

the Member

States. Without

controls

at

the

intra

Member

State

borders,

it

is

no

longer

possible

to check

goods

or

capital

flows, nor

the

identity of

persons.

If a refugee

were

to

cross

such

an

uncontrolled border,

he or

she should

be entitled

to protection

in

accordance with

the

Geneva Convention

within the

territory

of

which-

ever

Member

State

he or

she

found him

or herself.

Notwithstanding

the

fact

that all

nationals

of the

Member

States had

a

right

to move

to

and

reside

in

(for

economic

purposes at that

time) any Member

State,

across

what

were to

be

uncontrolled

borders, and

that their

numbers

dwarfed

into

insignificance those

of refugees

in

the Member

States,

it was the

spectre of

the refugee

moving and

gaining

entitlements

to rights

which

cause interior

ministries

to

revolt.

8

This

is

not

self evident.

As

is appar-

ent,

in order

to achieve

the abolition of

border

controls

on goods,

the

EU

embarked

on

a

very

ambitious

programme

of

harmonisation

and

recog-

nition

of

manufacturing

standards

in

order to

deal with

legitimate

health,

safety,

environmental

and consumer

concerns.

In the field of

refugees,

though,

the

Member

States

already had,

in

the

form

of

the

Geneva Convention,

the

necessary common

law which

harmonises

the

treatment of

refugees.

9

It

is

in

this

context

that the

separation of the

concept

of

a refugee

as

a

person

certified

by state

authorities

from

an asylum

seeker

as a

person claiming

protection

but

not

yet certified became

central.

Determination

of asylum

claims

by

state

authorities

was

assimilated

to

the

certification

of

extra EU imported

goods,

a prerequisite

for

the goods

gaining

access

to

the internal

market

and free movement

within

the EU. Thus

the determination

of

refugee

status

by the Member

State

through

whose

territory

the

individual

like

a

tin of

beans) first

arrived

fitted

into

an internal

market logic

which

was

operating

strongly

with

the full support of

the Member

States. The

Member

States

pre- and

post-determination

refugees

needed

different

6 A. Nicol

QC

and

S. Harrison,

The Law

and

Practice

in

the Application

of

the

Dublin

Convention

in

the

UK ,

I

EJML

465

1999);

R.

Marx,

Adjusting the

Dublin Convention:

New Approaches to Member

State

Responsibilities

for Asylum Applications ,

3 EJML

7

(2001).

7 E. Guild,

The Single

Market, Movement of

Persons

and

Borders ,

in

C.

Barnard

andJ. Scott

(eds.),

The Law

ofthe Single uropean

Market

Unpacking

the Premise

Hart,

Oxford 2002,

131-49.

8

D. Bouteillet-Paquet,

n.

2 above.

9

J.-Y. Carlier and

D.Van

Heule (eds.),

urope

and

refugees:

A challenge?,

Kluwer

Law

International,

The

Hague, 1997.


8/23

636

Elspeth

Guild

categorisations

that

is, asylum seekers v. refugees.

20

In the internal

market

logic, asylum

seekers should

be certified

on

arrival

like beans,

or warehoused

like

tins of

beans)

until

this is administratively

convenient.

It

is this

logic that takes us to the

next

step on the road to extraterritorial

processing

of

asylum

applications.

2

1

4.

The

Schengen Experiment

and the

Dublin Convention

These

flanking measures

for the abolition of

border controls found

expression

as

regards asylum seekers

in two treaties which

escaped the

EU until 1999.

These

are

the Schengen

Implementing Convention

1990

and the

Dublin

Convention

1990. Both

of these conventions

were

designed in response

to

the

abolition of

intra

Member

State border

con-

trols

and both

included

the objective of defining

intra Member

State

borders

for

the

purpose

of

allocating

responsibility

for

asylum

seekers.

2

2

The refugee section

of the Schengen Implementing Agreement

was

superseded by

the Dublin

Convention when it was

finally

ratified by all

the Member

States and came into

force in 1997 (the same

year as signa-

ture of

the Amsterdam Treaty

which

provided

for

its provisions

to

be

absorbed into

EU law). Among the

most telling

aspects of the

treatment

of asylum

seekers in

these

two

conventions

is that

they

are

the objects of

state

acts.

They

have

no effective

rights,

nor

is

either

instrument

designed

to give

voice

to their

protection.

23

They are

the passive

bodies

on

whom

is visited

the

will of the

Member States.

Both treaties

provide

for

three

principles

as

regards

asylum

applicants:

first that the Member

States are entitled

to pool their

responsibility

towards

them

as regards their

rejection.

Thus

if one

Member State con-

siders

the asylum application

of

an

individual and rejects

it, that

rejection

is valid for all the Member

States (notwithstanding

that the

recognition

of

refugee

status remained

and

remains nationally

limited).

Secondly,

it is

for the Member States

to determine

in which

of

their number an

asylum

seeker is

entitled

to

have

his

or her

application

for

asylum determined.

Thus

the fact

that

an individual might

have second degree family

links or

friends or job

prospects

in one Member State

but not in another and

thus

wishes

to apply for asylum

in that Member

State

is irrelevant

to the

2 H.

Meijers,

'Refugees

in Western Europe

Schengen affects the entire

Refugee

Law'

2 JRL

428 (1990).

2

S.

Lavenex, Safe Third

Countries Extending the EU

Asylum

and Immigration

Policies

to Central and

Eastern

Europe

CEU Press,

Budapest, 1999,

29-38

73-102.

22 j

van der

Klaauw,

The

Dublin

Convention The

Schengen

Asylum Chapterand

the

Treatment ofAsylum

Applications

Versalg

OSR-Studiedag, 31 Oct. 1996.

3 J

van

der

Klaauw,

Droit

d asile

et

processus

d harmonisation

dans l Union

europiene:

Schengen

via Dublin,

Maastricht

et au da , Cahiers du CEMRIC, Summer

1996,

No.

7.


9/23

The

Europeanisation

of

Europe s

Asylum

Policy

637

allocation of

responsibility

among

the Member

States under

the

treaties.

Thirdly,

responsibility

for

determining

asylum

applications

and

responsi-

bility

for

the body that

goes

with

the

application

is

treated

in

both

treaties

as

a burden

and a

punishment

for

the

Member

State

which permitted

the

individual

to arrive

in

the

Union.

2 4

At the heart of

the

system

is

a

logic which,

in

fact, is

inimical

to the

internal

market.

Instead of

reinforcing

the

abolition of

border

controls

on

persons

among

the Member

States,

it

requires

their

retention

at

least for

one

group

of

persons

asylum

seekers

Thus

an

exception

to the

logic

of

territorial

integration

is created

out

of the

bodies

of

refugees.

25

As long as

this

logic

provides

the

organising

principle

for the

treatment of

refugees

two

pressures

will

arise:

first

the

ever

diminution

of

the

area

in which

the asylum seeker

is

entitled

to move

in order

not to

interfere

with

the

abolition of

intra Member

State

border

controls

on

persons.

Secondly,

there

is a

search

for

mechanisms

to

prevent

asylum

seekers

from entering

the

internal

market

(or removing

them

rapidly .26

This

will

lead

to

the

sophistication

of

the safe

third

country

and

safe country

of

origin

principles.

It

was expected

that

a careful

use

of visa

requirements

and

carrier

sanctions

would

result in

asylum seekers

arriving exclusively

by

land to

those states

on

the

outer

borders

of

the

EU

the

(relatively)

poorer

South.

2

7

The

fall

of

the

Berlin

Wall in

1989 came

too

late for

a

substan-

tial rethink

of the

principles

of the

two conventions,

but

left

Germany

in

the position of

being the

main

outer

Member

State

until the accession

of

the

10 new Member

States

in 2004.

The duty

to provide

protection

to

refugees

arriving,

even

irregularly,

on the

territory

of signatory

states of

the

Geneva

Convention

was

increas-

ingly

distorted

in its interpretation

by

the

EU Member

States to justify

measures

to

deflect

asylum seekers

to other

destinations,

to prevent

their

arrival

at the border

by

increasingly

unsavoury

means and

to move

them

outside the

border

if

any

other

host

state

could

be

found

on

which

to

place

responsibility.

28

At

the same

time

that

the

EU

was

struggling

towards

territorial integration

through

the abolition

of border

controls

on

movement

of

person

through

the

common

territory,

the

Member

States were

adopting

measures

and

practices

increasingly

territorially lim-

iting

to asylum

seekers

29

The

Member

States

were also demonstrating

4 E.

Guild, iovin the

Borders of

Europe, Inaugural

Lecture

University

of

Nijmegen,

2000.

5

j y Carlier, L accis

au territoire

es (candidat)

rifugij

au

regard

du droit

international

es

rffigiis

dans les

proets

d hannonisation,

Documentation

ifgi Supplement

No.

187,

20-29,

1992.

D.

Bigo,

Circuler,

refouler, enfermer

iloigner

Cultures

et Conflits, Harmattan.

Paris 1996,

3-7.

7

A.

Meloni,

Visa

Policy

within

the

European Union Structure

Springer,

Berlin 2006,

171

and

following.

8

G.

Noll, Visions

of

the

Exceptional:

Legal

and Theoretical

Issues Raised

by Transit

Processing

Centres

and

Protection

Zones 5

EJML

303 (2003).

9

D.

Bouteillet-Paquet,

Passing

the

Buck:

A Critical

Analysis

of the

Readmission

Policy

Imple-

mented

by the

European

Union and

Its

Member

States

5 EJML 359

(2003).


10/23

638

Elspeth Guild

great

resistance to

the recognition

of

rights of asylum seekers.

30

All of the

measures

which were being adopted

were in

the direction

of removing

capacity

to act from asylum seekers

and

removing asylum

seekers from

the

view of

the

legal

systems.

The borders for

asylum seekers were not

only

physical

borders

in

respect

of

which

there

were

no controls

on

movement

of

persons

but

also legal

borders

which

increasingly

kept

them

on the wrong

side ofjurisdiction.

5. The

London

Resolutions 1992 and the

Maastricht

Treaty

In

1992

a year

before

the Maastricht Treaty

would

finally

limp

into

force the

justice

and

interior

ministers

of the Member

States

adopted

two resolutions and

conclusions

which would

set

the

agenda

for asylum

and

refugee

protection for

the

next

15

years.

3 1

All three measures

were

of

unclear

legal

status

not being

EU

law nor international treaties

nor

any

other obvious

form

of international agreement.

32

The

three

dealt

with

asylum

seekers and shared one

primary characteristic they were

designed

to

move asylum seekers out

of

the administrative

systems of

the

Member States without a consideration

of

the

application on

its

mer-

its. The first

resolution

defines

the

principle of

a

manifestly unfounded

application

for asylum.

There

are a

variety

of grounds

on

which

an

application can

be found manifestly unfounded most

importantly that

the individual

has passed through a safe

third

country

on the

way to

the

Member State.

The effect

of determining an

application

to be mani-

festly

unfounded

is

that

the

state

authorities are

not

obliged

to

provide

a

thorough

examination

of

the application

and appeal rights

may

be

trun-

cated.

The

safe

third country principle was

by

no

means

an invention of

the

EU.

33

However it provided a

way of thinking

about refugee protec-

tion which

fitted comfortably into the internal

market

logic of abolition

of

border controls.

If an analogy is made with

goods

the

tin of beans

which

arrives

at the

EU

external

border

is warehoused pending

certifica-

tion.

In

principle

this

could well be

within

a third country before admis-

sion to the EU territory. In the

case

of asylum

seekers even

recognition

as a

refugee will not enable their

admission

to

the

EU territory indeed

recognition

in

a third

country

justifies

exclusion from the

EU as

a

safe

haven

has

been found. Thus even

this most

cursory

examination

of

the

internal

market logic

as applied to asylum seekers

indicates

the

problem.

3 E.g.

see

the

negotiations

on

Directive

2003/9 on asylum

reception conditions.

3 L.

Drucke

Asylum

Poliy

in

a

European

ommuniy

without

Internal

Borders

CCME

Brussels

No.

9

1992.

3

E.

Guild andJ.

Niessen

n.

13

above.

S. Lavenex

Safe

Third

Countries

n.

21

above

29-42.


11/23

The Europeanisation

of Europe s

Asylum

Policy

639

The

second resolution

creates a

common

definition

of a safe third

country,

that is to

say a

country

which is

not

the country

of

origin

of

the

asylum

seeker but

through

which

the asylum

seeker

has

passed

on

his

or

her

way to the

Member

State.

The

existence

of a

safe

third country

in respect

of an

asylum

seeker is

a justification

for the invocation

of

the

manifestly unfounded

application

for asylum

principle

and the exclusion

of the individual

from

the

full

asylum determination

procedure.

Thus,

once again,

the

body

of

the

asylum seeker

is

disposed

of in accordance

with a

series of territorially

bound

measures

which

have the effect

also

of

removing

the

asylum

seeker

from

the

jurisdiction

of legal

protection.

The

final measure

was

a

conclusion on safe

countries

of

origin. This

conclusion

apparently

a

less

constraining

form of

measure

than a resolu-

tion,

though the

difference

was

never particularly clear)

set

out

the

def-

inition

of

a safe

country

of origin of

an asylum seeker.

This meant

that

an

asylum seeker

coming

from

a

country

fulfilling

the

requirements to

be a

safe country

would

have his

or her

application

for asylum

dealt

with

in a

summary

procedure,

without

a thorough

investigation

into

the claim

to

protection

and the

exclusion

of

appeal

rights.

This measure,

like

the

safe

third

country

resolution, is

designed around

the territorial

disposal

of

an

asylum

seeker

outside the Union.

After the

Dayton

Peace

Agreement

of

1995

brought

an end

to

hostilities

in the

former

Yugoslavia

and on

the

doorstep

of

the

EU,

while

that

territory

remained

an

important

source

of

refugees

in the EU,

other conflicts

elsewhere

began

to produce

more

forced

migrants

for the

EU. Following

this

period

the rejection

rate of

asylum

applications

began to rise

in most

of the main

EU receiving

states.

While there

were

very substantial

differences

in

rejection rates

in different

Member

States

for nationals

of the same

states

of origin,

in most Member

States

overall

recognition

rates

declined.

With

this

trend, the

arguments

in favour

of inclusive

asylum policies suffered

a set

back. A

new logic

took

hold

if

most

asylum seekers

do not

deserve

refugee

status, then

they

should be

kept

out of

the territory.

The

duty

of protection

loses

its

force

as

fewer and

fewer

persons

claiming

it are determined

to be

entitled.

The

logic of

preventing

abuse takes

hold.

An

important

change

which the Maastricht

Treaty

put

into place was

the creation

of

the so

called Third

Pillar. When

it

finally came into

force

in

1993

after

having

been rejected

once by the Danish

voters,

the

treaty

created

the Treaty

on European

Union

TEU) which, for

the first

time,

provided

a venue

for the immigration,

asylum and

borders

issues

to be

treated

in common

at

the

level

of

the Union.

4

The

TEU created the

European Union

as

an

entity

which included

the

European

Community

that is

what had

been the

totality

of

the EU

before),

a

Common

Foreign

34

J.-V.

Ketelsen,

'Die Zustiind4gkeit

der

EG

ir

die

schaflung

eines

EG-Asylrechls

nach Maostricht

in

K.

Barwig et al, syl nach

der Anderung

des Grnndgesetzes

Nornos

Verlag,

Baden-Baden,

1994,

349-64.


12/23

640

Elspeth Guild

and Security Policy

and

Cooperation

in the fields ofJustice

and

Home

Affairs. The

first step

towards

moving the field

of

asylum

into

the

EU

law

took

place.

The

Third Pillar was defined

by

its lack

of

parliamentary

oversight,

weakness

of

judicial

control

and

the

opaqueness

of

its

working

and measures.

3 5

Nonetheless,

it

provided

a venue for discussion among

EU interior

ministry

officials to take

place, although

it

resulted

in little

action

in the field

of asylum before

it

was transformed by the

Amsterdam

Treaty and immigration and

asylum was

removed

from its remit. What

is

important

though is the reference to

the Geneva

Convention which

first

appears in these provisions.

6. The

Amsterdam Treaty

The

incoherence

of

measures regarding

borders,

movement

of third

country

nationals,

immigration

and

asylum at

the

EU level

led to a

rethinking

of

the

field at

the

next intergovernmental

conference which

ended

in 1997.

The

result was the Amsterdam Treaty which

inserted

asylum into EU

law proper removing it from the

Third Pillar (which itself

was

greatly

changed

by

the

Amsterdam Treaty).

36

The

EC

Treaty

acquired a new Title

IV

the

objective

of

which is

attached

to the

internal

market as an area without controls

on

movement but

via

the creation of

an

area

of

freedom, security

and

justice. This area

requires,

according

to

article

63,

the adoption of a series

of

measures

on asylum.

Article 63 1)

specifies that all the

measures

must

be

in accordance with

the

Geneva

Convention

of 28July

1951 and the

Protocol

of

31 January 1967 relating

to the status

of

refugees and

other relevant treaties .

The

fields

in

which

measures must

be

adopted begins with

the

criteria

and

mechanisms

for determining the

Member

State responsible

for

considering an asylum application

the territory

of

the Dublin

Convention discussed

above.

Thus

the

starting place of

EU

responsibi-

lity

for refugees

is

their

exclusion from

a

right

of

movement

in

the com-

mon territory.

37

By

adopting

the principles underlying

the

Dublin

Convention

the

Member

States right to pool protection responsibility

negatively, to

determine which

Member

State is

responsible

for an asylum

seeker

and

to use as the organising principle

of

that responsibility punish-

ment

of

states which

permit

the asylum

seeker to

cross

the

border- the EU

commences

its

refugee

protection

responsibilities in

a

spirit

of

territorial

5

T. Bunyan

and

F.

Webber,

Intergovernmental

Cooperation

o

Immigration

and Asylum

CCME,

Brussels,

No.

19, 1995.

6

D.

O Keeffe,

Can

the

Leopard

Change

its

Spots? Visas,

Immigration

and

Asylum following

Amsterdam in D.

O Keeffe and P Twomey

Legal

Issues of the Amsterdam

Treaov Hart, Oxford, 1999,

271-88.

7

U.

Brand],

Distribution

of Asylum

Seekers

in

Europe?

Dublin

I

Regulation

determining

the responsibility for

examining an asylum application

in

C. Dias

Urbano

de

Sousa and

Ph. De Bruycker

(eds.), n. 6

above.


13/23

The Europeanisationof Europe s

Asylum Policy

641

exceptionalism. Refugees

will be

the exception

to

free

movement

of

persons and

they will

be

an

exception to the

international obligations

of

the

Member States

(that

is,

the pooling

of responsibility by

a

small

number

of

signatory states

without the

express

agreement

of the

guardians of

the

treaty or the

other

signatory

states .

The underlying

principle is territorial

exclusion

on the basis

of national sovereignty.

In order to

reconstruct the

EU territory

as geographically

coherent and

without

border controls

at

the internal

frontiers, the exception

of

refugees

will

have

to

be

dealt with.

Two

possibilities

are open

to the Member

States

on the

one

hand, to

reverse the policy

put

in

place

from 1990

to

exclude asylum

seekers from

free movement

of

persons

within the EU

territory,

on the other hand,

to

devise

a mechanism

to

remove

asylum

seekers

as

quickly

as

possible from

the common

territory so

that their presence

does not provide

a reason fo r

the

reestablishment

of intra Member

State border

controls. The first was

out

of

the question,

notwithstanding

calls

from

numerous

NGOs

to take

this

route,

the second required a

means to reconcile

the removal of

asy-

lum seekers

from the territory

of

the EU very

rapidly before

their pres-

ence could

disturb

the internal market

without breaching

the Member

States international

commitments

and,

most notably,

the Geneva

Convention.

In this

context, it is not

surprising that

extra

territorial

processing did

not

take

long

to

appear

as

an

option

in

view

of

the

policy

demands.

38

The

second competence

in article 63

regarding asylum

seekers does

not fit

so

well

into the logic of exclusion.

It requires the

adoption

of

minimum standards

on

the

reception

of

asylum

seekers

The

directive,

which has

been adopted

and for

which

the

transitional

period ended in

February

2005 (2003/9), requires

all Member States to

accord to

asylum

seekers a

set

of

reception rights

which

include

material reception

condi-

tions but

also

identity documents.

3 9

However,

the financial considera-

tions

of

providing correct reception conditions

to

all

asylum seekers

is

unfortunately

a factor which

could well be

used to justify extra

territorial

processing.

Among

the

arguments which are made

against the

Member

States asylum

procedures

is that they

are long

and

expensive.

40 They

become

more

and more expensive the

longer they take

as

much

of

the

cost is

for the

reception

of the

asylum

seeker.

Thus extra

territorial

pro-

cessing

can be

seen

as

a way

of

reducing

the costs

which the Reception

Conditions

Directive

imposes

on

the Member States.

8

G. Noll, n.

28

above.

9

A.

Baldaccini,

Asylum

Support:

a

Practitioners

Guide

to

the

U

Reception

Conditions

Directive

Justice,

London, 2005.

4 B. Marshall,

The New Germany and

Migration in Europe Manchester

University

Press,

Manchester,

2000, 40 and following.


14/23

642

lspeth Guild

The

third

competence

is

minimum

standards

on the qualification of

persons

as refugees (Directive

2004/83)

which provides

the

EU s

inter-

pretation of

the Geneva

Convention definition

of a refugee

and of per-

sons

entitled

to

subsidiary

protection.

4

1

The

transposition

of

this

directive

must be completed by

October

2006. Fourthly, minimum

standards on

procedures

for

granting

or withdrawing

refugee status

is now an EU

competence,

the

directive

(2005/85)

was adopted on 1 December

2005

notwithstanding

serious concerns on the

part

of UNHCR

4 2

and

the

European Parliament

4

3

regarding

its

compatibility

with the Geneva Con-

vention.

44

It

is in this directive

that

the principles

set

out

in the

London

Resolutions

find

their home in EU law. This

measure provides the

logic

of

exclusion

in

EU

law

and the mechanisms by

which the

removal of

asylum

seekers

from

the

EU

territory on

the basis

of

safe

third country

procedures, with no suspensive

effect and

no consideration

of

the

under-

lying protection claim,

will take place.

Under

the

provisions

of

Title

IV

EC while there

is

provision

for judi-

cial

oversight at the

EU level it is limited.

While

in most

other

fields of

EU

law any

court or tribunal at the

national level

has

the right to refer a

question on the

interpretation of

EU

law to

the European

Court ofJust-

ice

for a definitive interpretation,

in this field

only courts against whose

decision

there is no further

right

of appeal are

entitled

to

refer

questions

(but

then

they are

also

required

to refer any

question).

The

effect

of

this

limitation

is

to delay the arrival

of questions of

interpretation in

the field

before

the

European

Court

ofJustice.

4

5

7 The

Tampere Conclusions

and

the

5 Year

Transitional

Period

In

October 1999 the European Council

met in Tampere,

Finland, to set

out the principles

which were to

motivate the drafting

and

adoption of

secondary

legislation in

the area

of

freedom, security

and

justice,

in

the

new

forum

of

the EU.

4 6

Two

key principles were

set out to shape the

area of

freedom, security and justice:

harmonisation of

asylum law at

a

common

minimum standard level and

the

principle

of

mutual

recogni-

tion

of

acts

of

states.

The common

minimum

standard

principle led

to a

4 For a

detailed

analysis

of

the

directive,

see,

J. McAdam, n.

14 above, 461

42

UNHCR, The

European

Union,

Asylum

and

the International

Refugee Protection Regime:

UNHCR s

recommendation for the

new multi-annual programme in

the area

of

freedom,

security

and justice , Sept. 2004.

20 Sept. 2001,

OJ 2002 C

77

E/94.

44 C. Costello, The

Asylum

Procedures

Directive

and

the

Proliferation of Safe

Country Practices:

Deterrence, Deflection

and

the

Dismantling of

International

Protection? ,

7 JML

35 (2005).

45

A.

Arnull,

The

Treaty

of Amsterdam

and

the

Court

ofJustice

in D.

O Keeffe

and

P.

Twomey,

n. 36

above,

115-20.

46 At annex 1 find the

measures adopted so far on asylum.


15/23

The

Europeanisationof Europe s

Asylum Policy

643

number

of difficulties

regarding

the protection

afforded

by

the

standards

applied, as

discussed

in

the

previous section.

The principle

of mutual recognition

provides a worrying setting

for

the

activities

of

the EU

in

the acceptance

of responsibility

for protection

claims.

This principle depends

on

Member

States

accepting

the

state-

ments,

actions and decisions of

one another

without

question

as regards

the

measures

which are adopted

under it For instance,

a directive on

mutual

recognition

of

expulsion

decisions provides

for the

Member

States

to

accept

without

permitting

challenge the

expulsion decision

taken

against a

third

country

national by

another

Member

State.

4 7

The prob-

lem here

is that

solidarity among sovereign states

is privileged

over the

reality

of rights protection

of

the individual.

As

is

evident

from the

number

of

expulsion

decisions

taken

by

EU states

which

are challenged

before the European

Court of

Human Rights, EU

states

are

by no

means

always consistent with

their human

rights obligations in this

field

The

deployment of the

concept

of mutual

recognition seeks

to reinforce the

legitimacy

of state

actions vis vis

the

individual without

asserting any

control to

ensure that the

actions are consistent

with

rule

of law and

human

rights obligations,

to mention

just

two

issues It

also

put into

place

a

way

of

thinking

which does

not

offend

national

sovereignty,

permits

states

to

give legal effects

to one

another s

decisions without

permitting

the

individual subject

to the

decision to challenge

its

execution

and

which

is

justified

on

the grounds

that

the states in the group

are

all

good Europeans

now

they

all comply with

their

human rights

obligations.

The

failure of any

state to act

in accordance with

the principle then,

becomes

an act

of

challenge

in itself

against

the trust

and

confidence

that

is the objective

of

the

exercise. Thus

the

questioning

state is no longer

perceived

as

correctly

ensuring

that

international

standards are

complied

with before

acting but as attacking the

objective

of the group.

The stakes

are raised against

the

diligent civil

servant

who

seeks

to

make

sure that

his

or

her

counterpart

in

another Member

State

is

actually

doing

his

or

her job

correctly. This

model easy

slides out of

the realm

of

Member

States

only, to candidate states

(for instance, Bulgaria,

Romania, Turkey

and Croatia) then

to the neighbours through

the Neighbourhood

Policy.

4

9

In

the field

of

immigration and

asylum,

the

Council s

Tampere

Conclusions

indicated

its fascination with

a policy which

is carried out

7

K.

Groenendijk,

The

Directive on

mutual

recognition

of

Expulsion

Decisions:

symbolic

politics

or unbalanced politics?

in C. Dias Urbano

de

Sousa

and Ph. de Bruycker

(eds.), n. 6 above,

447-63.

48

S Alegre and M. Leaf,

European Arrest

Warrant

A

Solution aheadof

ts 7ime?Justice,

London 2003,

14 and following.

49

E. Guild,

What

is

a Neighbour? ,

Paper

presented

at

BISA,

St

Andrews,

2005.


16/23

644

Elspeth

uild

on

the territory

of third

countries

not least

by

the first

paragraph

of the

Conclusions

of

that meeting

which

state:

The

European

Union

needs

a comprehensive

approach

to

migration

addressing

political,

human

rights

and

development

issues in

countries

and

regions

of

origin

and

transit.

This

requires

combating

poverty,

improving

living conditions

and

job opportunities,

preventing

conflicts

and

consolidating

democratic

states

and

ensuring

respect

for human

rights,

in

particular

rights

of

minorities,

women

and

children.

To that end,

the

Union

as

well

as Member

States

are invited

to

contribute,

within their

respective

competence

under

the

Treaties,

to

a

greater

coherence

of

internal

and

external

policies

of

the Union.

Partnership

with

third

countries

concerned will

also be

a

key

element

for the

success

of

such a

policy,

with a

view

to promoting

co-development.

The Conclusions

then

go

on to

consider

the

Common European

Asylum

System,

and

the

principles

which

should

inspire

it.

They state:

The European

Council

reaffirms

the importance

the

Union

and

Member

States

attach

to absolute

respect

of

the right

to

seek

asylum.

It has

agreed

to work

towards

establishing

a Common

European

Asylum

System, based

on the full

and

inclusive application

of

the Geneva

Convention,

thus ensuring

that

nobody

is

sent

back

to

persecution,

i.e.

maintaining

the

principle

of non refoulement.

The

order

and

juxtaposition

of the

two statements

reveals a theoretical

foundation

which

promotes

the association

of

asylum

with

weaknesses

in

countries

of

transit

and

failures

of

protection

in

countries

of

origin.

The

idea

of coherence

between

internal

and

external

policies

invites

the

asso-

ciation

of

protection

obligations

of the

Member

States

with

those

of third

states.

The comparison

is

at the

heart

of the

framework.

While

failures

of

protection

in countries

of

origin are

certainly

the key

issue

of human

rights

compliance,

the merging

of this

focus

with

that of refugee

protec-

tion may

result

in

the

instrumentalisation

of

the individual.

Human

rights

compliance

duties

of

states

are

the proper

subject

of international

super-

vision

mechanisms

when questions

arise

as

to the

adequacy

or otherwise

of

institutions

at the

national

level.

The

determination

of

a refugee s

needs

for

protection,

while always

arrived

at against

the

background

of

national

law and

practice,

must

have

as its

primary

focus

the

individual

and his

or

her

safety,

not

the reinforcement

of international

trust

and

cooperation

between states

in order

to

promote

human

rights

compli-

ance. When

the later

objective,

legitimate

as

it is,

takes

priority

over

the former,

the individual

is cast

as

prima

acie

disloyal

and his

or her

claim

illegitimate.

50

The

individual s

need

for

protection becomes

sec-

ondary

to the

international

relations

objectives

of the

state

in

which

he

or

she

has

sought

refuge.

The

state

where

protection

is

sought

is

sceptical

5

E. Guild, International

Terrorism

and

EU

Immigration,

Asylum

and orders

Policy:

The

Unexpected

Victims

of September

2001

8

European

Foreign

Affairs

Review 331

(2003).


17/23

The Europeanisation

of Europe sAsylum Policy 645

about the claim

not

because

of any specific

aspect of

the

individual s

story

but

because

the state is in a

dialogue

with the

state

of origin about human

rights

compliance

which privileges

the discourse

of that

state over

that

of

the

refugee.

The

EU

as

an

area within

which the

principles

of

sovereignty

apply as

regards many

powers

of

the

Member

States

but supranational sover-

eignty is also

at work demands

a

high

degee of trust and confidence

among

states as

regards

their activities.

SHowever, the greater

the

demand

for

trust and

confidence among

states, the greater

the pressure

for

avenues

of

redress

for

the aggrieved

individual.

The

obvious problem,

raised by a number

of

international

organisa-

tions

and

NGOs,

is that it is

clear

that many of the states

with

which

the

EU

seeks

good relations

do

not

have

acceptable

human

rights

standards.

Their nationals

form a

large

part

of

the persons

seeking

asylum in

the EU

and their claims

are not self-evidently

unfounded.

Thus,

the emphasis

must be

on the countries

of

transit and

their duty to provide

protection

before the protection

seeker arrives

in the EU.

However,

many

of

these

countries are poor

and have weak

institutions

so the

third

step

comes

naturally

once one

has accepted the

logic

of

protection

elsewhere

provide

them

with the

institutions and tools

to provide protection (or

at

least to achieve

exclusion from the

EU) on their

territory. It is towards

this step

that

the next

multi-annual programme

moves.

8 The

Hague Programme

and the draft

Constitution

The

second multi-annual

programme for action in

the

field of freedom,

security

and justice

was published by the

EU institutions

in

November

2004

and

entitled

the

Hague Programme.

5 2

In

asylum

it covered a wide

range

of

issues that

have been criticised

by UNHCR,

NGOs

and

others

in

the

Union

as

questionable

in

respect of

their commitment

to the com-

mitments

of

the Geneva

Convention.

I

will

focus

here on the

extra-

territorial

processing

issue which arises in

the document.

The Hague Programme

called for

adoption of

the directive

on

asylum

procedures

notwithstanding

that the draft

had

been

criticised

by

UNHCR

and others.

UNCHR

had already expressed concerns

that

there is a genuine

risk that the

Directive, in practice,

may lead

to

breaches

of

international

law

53

not least

as

the pressure

to speed up the

procedures has

led to the inclusion

of measures

which effectively

prevent

an

individual from having

a consideration

of

his or

her

application on

the

51

M.

Anderson

and

J

Apap,

Striking a

Balance

between

Freedom,

Security

and

Justice

in

an

Enlarged

European Union, CEPS,

Brussels

2002.

5

For

a

full discussion, see T

Balzacq and

S Carrera, Migration Borders

Asylum Trends and

Vulnerabilities in

EU

Policy,

CEPS,

Brussels,

2005.

5

UNHCR,

n

42

above


18/23

646

lspeth

Guild

territory

of

the EU

or

an

appeal right in the

event

of

rejection.

These

provisions

are

justified on

the

ground that

the individual

will

be sent

outside the EU

to

a

safe

third country

and

thus

the EU

Member States

protection

obligations

can

be territorially

shifted away

from

the

EU.

5 4

The

proposal

also includes

the concept of safe countries

of origin.

But

there is

no

list

of

so-called

safe countries

of

origin

in its annex. This

was

due to a lack

of unanimous agreement

on the safety

of

the ten

countries

listed

(Benin,

Botswana,

Cap

Verde, Ghana, Senegal, Mali,

Mauritius,

Costa

Rica,

Chile

and

Uruguay).

A vote

on this

issue

is due

to take place

at

a later stage by qualified

majority.

Serious

reservations

have been

raised about

the

legality

of

a

common

EU

list

of

safe countries

of

origin.

The

Hague Programme

also

calls for

joint processing

of claims both

within

and

outside

EU territory

but

it

is

not

further elaborated upon

in

the document.

The idea

of joint

processing

outside

the EU had

been

around for some

time, not least

the

2003

proposals

of

the UK, but

it

had

been

subject to much

criticism.

5 5

This

included

that the

objective

itself is

objectionable

and

that the many studies, including

some

by

the

Commission,

question its feasibility, practicality

and legality.

5 6

Further,

one

of the key legislative institutions,

the

European

Parliament

has

also

made

it clear

that any

approach

implying

the

establishment

of

holding

camps

for

the assessment of either

protection

or immigration

status

would

amount

to

off-shore

the

EU s

own

responsibilities

for those

seeking sanc-

tuary

and

could not be

accepted.

The

Hague Programme also calls

for

a European Asylum

Office

intended to coordinate

among Member

States

asylum authorities.

Exactly what

this office s duties

would be is less

clear and concerns

have been

expressed

that

it should

not become a

mechanism for

exchanging

bad

practices in

the field.

There are

also

current

and future

coordination

measures

(including

the Commission s

Committee on immi-

gration

and

asylum

and

Eurasil committee)

which could

be

coordinated

but

at the

moment they

lack some

vital characteristics

of

democratic

accountability,

transparency

among

them,

and so it is difficult

to deter-

mine to

what extent

they comply

with

human rights obligations.

The emphasis

of

the

Hague Programme is to stop or move

the

asylum

seeker

beyond the common

external border

to the territory

of

third

states.

The

justification

is

that third

states

must be held responsible

for their

human

rights obligations,

that is, the

full compliance

with

the

Geneva

Convention

and

thus they

should

take

charge

of

asylum

applicants.

In

the most recent

proposal by the Commission

for a directive

on removal

of third

country nationals,

it

is

striking

that

it refers to

removing

third

5 R.

Byrne,

Remedies

of

Limited

Effect:

Appeals

under

the

forthcoming

Directive

on

EU

Minimum Standards

on

Procedures JML

71 (2005).

See

G.

Noll,

n.

28

above.

6

See C. Costello,

n. 44

above.


19/23

The Europeanisation

of Europe s

Asylum

Policy

647

country

nationals to

third countries (that

is,

outside the Union

but not

to their

country

of

origin)

but there is no

longer a reference

to any

previous transit

or

stay in

such

third

country.

5 7

The

link

of

the

external

dimension,

which

was

based on making countries

outside

the Union

responsible

for human

rights protection of asylum seekers, has

now

moved

beyond

making third countries responsible for refugees who

have some

link

with their territory, to

shuffling

them off completely

to

countries through which they have never passed and which

owe them

no duty other than that

which

comes

into

existence

by reason of

the

Member States' actions.

The

draft

Constitution, whose

future is

rather doubtful

at the

moment,

intensifies the problem by creating

a

constitutional legal basis

for

these

practices. Article 11-1

67 2) g)

states

that

EU framework

laws

will

set down

measures for

a common European asylum

system

comprising 'partner-

ship and

cooperation with

third countries for

the

purpose

of managing

inflows of people for asylum or subsidiary or temporary protection'.

However, the

Constitution not only

spells out problems, it also

pro-

poses

new sources of refugee protection

in

EU law.

The second part of

the document contains

the EU

Charter of

fundamental rights

as

a

justi-

ciable part of the treaty.

Article 11 18

provides that the

right

to asylum

shall be

guaranteed with

due

respect for

the rules of the

Geneva

Con-

vention.

5 8

The

conflict

between

the

direction

of

exclusion

of

the refugee

and the

internationally recognised duties

of protection which

are

appar-

ent in the

development of EU law

would

now

take

residence

in the Con-

stitution.

In

effect

this

would mean

that the resolution of the tensions

would

no

longer be

limited

to the field of

negotiations,

but

would

be

judicialised.

9. The Human

Rights

Challenge

Human

rights do

not only enter EU

law

through the Constitutional

Treaty. They are already an

important

part of the constitution

of bits

and pieces

59

in accordance with

which

the

EU currently

operates.

In

particular, reference to the European Convention on

Human Rights

and compliance

with it have become, since the 1990 s

part

of the frame-

work of

the

EU.

6

0

The

inclusion of an

obligation

to

respect fundamental

7

See

the

House

of

Lords,

European

Union

Sub

Committee

F

Inquiry

into

A Common

EU

Policy

on

Returns

2006

(transcripts of the evidence are on

line at http://www.publications.parliament.uk/

pa/ld/Iduncorr/).

58

E.

Guild

'The

Variable

Subject

of

the EU

Constitution,

Civil

Liberties

and

Human

Rights'

6

ML 381 (2004).

This

phrase

comes

from

D.

Curtin,

'The

Constitutional

Structure

Documents

Refugee Magazine International (18th Edition)