2010 training handbook migrations

8/15/2019 2010 Training Handbook Migrations

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TRAINING HANDBOOK Migration Challenges in Serbia

The contents of this publication are the sole responsibility of Group 484 andECRE and can in no way be taken to reflect the views of the European Union

The Palace Hotel, Belgrade Panorama Hall, 6th floor,November 8-10, 2010, Topli č in venac 23 Belgrade


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TRAINING HANDBOOKTo accompany the training Migration Challenges in Serbia:

PART ONE : A compilation of key EU Standards In the area of forced migration

Containing:• Extracts from relevant EU documents and regulations• ECRE’s position regarding these documents and regulations• Examples of good and bad practice from EU member states

PART TWO:

A template for a policy/advocacy document to be produced according to ECREstandards.

Containing:• Elements of an effective policy/advocacy document• A guide to the most important issues to be included in the policy/document

to be drafted and agreed in the overall project.

A. CONTENTS: (Agenda related)

1 Stabilisation and Association Agreements2 Returns Directive3 EU Acquis on Asylum4 Readmission Agreements

B. CONTENTS (Other key documents and regulations.)5 Dublin6 Green paper on Asylum7 Treaty of Lisbon8 Stockholm Programme9 EU legislative ‘Recasting’

C. LIST OF INTERNET LINKS TO KEY EU LEGISLATION ON MIGRATION AND ASYLUM ISSUES .


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INTRODUCTION

This training handbook is intendedas a complementary tool forparticipants attending the trainingorganised by Grupa 484 and theEuropean Council on Refugees andExiles (ECRE). The training, held inBelgrade between 8-10 October2010, is titled Forced MigrationChallenges in Serbia. It is part of alarger project funded by theEuropean Commission:Strengthening Serbia-EU Civil

Society Dialogue . This one yearproject is managed and lead byGrupa 484. ECRE is the projectpartner agency.

Participants in this three day traininginclude members of civil societyorganisations (CSOs) and stateinstitutions engaged in the field offorced migration. The aims are two-

fold: Firstly, to bring participants upto date with key EU legislationregarding forced migration in Serbia.Secondly, for the CSO group toestablish the groundwork andstructure of a policy/advocacydocument on a range of keyconcerns. This policy/advocacydocument will be written in a waythat it is consistent with standardsemployed by ECRE, both in terms ofits relevance to EU legislation and interms of style and qualitativecontent.

A series of important follow-onactivities will build on the outputs ofthis training. They include: a) Atraining on advocacy/lobbying andcampaigning standards; b) A visit bya CSO delegation to Europeaninstitutions in Brussels. c) A nationalcampaign for the improvement ofSerbian Forced Migration Policy.


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STABILISATION AND

ASSOCIATION AGREEMENTBETWEEN EUROPEAN

COMMUNITIES AND THEIRMEMBER STATES

INTRODUCTION: On 7 November2007, Serbia initialed a Stabilisationand Association Agreement 1 (SAA)with the European Union. Thisrepresented an agreement on thefinal version of the text to which ‘noor little changes’ are to be made,which is the step immediately

preceding the official signing.

According to the Commissionerfor Enlargement, the Counci ldecided on 14 June 2010 to:

“ - unblock the ratification process ofthe Stabilisation and Associationagreement (SAA) between the EUand Serbia. Recalling in the CouncilConclusions that cooperation with

the International Criminal Tribunal forthe former Yugoslavia (ICTY) is anessential element of the SAA,Ministers agreed to submit theagreement to their respectiveparliaments for ratification, as well asto the European Parliament for itsapproval.”

The Commissioner stated that “thedecision br ings Serbia another

step closer to the EU, putting ourrelation on a strong legallybinding and institutional basis” .

1 http://ec.europa.eu/enlargement/pdf/serbia/key_d ocument/saa_en.pdf

HISTORY: The negotiations for aStabilisation and Association Agreement between the EU andSerbia were initially launched inOctober 2005 and the agreementwas signed in April 2008. However,the Council decided that ratification,as well as the implementation of theInterim Agreement of the SAA, weresubject to Serbia’s progress on ICTYcooperation. Following ICTYProsecutor’s positive report to theUN Security Council in December2009, the Council agreed to unblock

the Interim Agreement whichsubsequently entered into force on1 February 2010 . At the same timeMinisters decided to unblock theratification process in June 2010 ifSerbia maintained its cooperationwith ICTY. The decision implied thatthe Member States launch theirinternal ratification procedures forthe SAA.

WHAT ARE THE STABILIZATION

AND ASSOCIATION

AGREEMENTS?

They are part of the EU Stabilizationand Association Process (SAP) andthe European Neighbourhood Policy (ENP). At present, the countries ofthe western Balkans are the focus ofthe SAP. Specific Stabilization and

Association Agreements (SAA) havebeen implemented with variousBalkan countries which explicitlyinclude provisions for future EUmembership of the country involved.

SAAs are based mostly on the EU'sacquis communautaire and

http://en.wikipedia.org/wiki/Stabilisation_and_Association_Agreementhttp://en.wikipedia.org/wiki/Stabilisation_and_Association_Agreementhttp://en.wikipedia.org/wiki/European_Neighbourhood_Policyhttp://en.wikipedia.org/wiki/Western_Balkanshttp://en.wikipedia.org/wiki/Acquis_communautairehttp://en.wikipedia.org/wiki/Acquis_communautairehttp://en.wikipedia.org/wiki/Western_Balkanshttp://en.wikipedia.org/wiki/European_Neighbourhood_Policyhttp://en.wikipedia.org/wiki/Stabilisation_and_Association_Agreementhttp://en.wikipedia.org/wiki/Stabilisation_and_Association_Agreement


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predicated on its promulgation in thelegislation of cooperating states. Thedepth of the policy harmonisationexpected by SAA is less than for EUmember states; some policy areas inthe Acquis may not be covered by agiven SAA.

Association agreements must beratified by the associating state andall EU member states . The EU'srelations with the Western Balkansstates were moved from the"External Relations " to the"Enlargement " policy segment in

2005. These states currently are notrecognised as candidate countries,but only as "potential candidatecountries". This is a consequence ofthe advancement of the Stabilizationand Association process.

“The EU’s political strategy towardsthe Western Balkans relies on arealistic expectation that the contractit enters into with individual countries

will be fulfilled satisfactorily. Carefulpreparation with each country beforethe EU offers such a contract hasbeen and remains a vital componentof the Stabilisation and AssociationProcess.

The Stabilisation and Association Agreements are tools which provide,much as the Europe Agreements didfor the candidate countries in Central

Europe, the formal mechanisms andagreed benchmarks which allow theEU to work with each country tobring them closer to the standardswhich apply in the EU.”

KEY ARTICLES AGREED IN THE

SAA BETWEEN SERBIA AND THE

EC (MEMBER STATES) RELATING

TO: Visa; border management;

asylum and migration; prevention

and control of illegal immigration;

readmission.

“ ARTICLE 82

Visa, border management, asylumand migration

The Parties shall cooperate in theareas of visa, border control, asylumand migration and shall set up aframework for the cooperation,including at a regional level, in thesefields, taking into account andmaking full use of other existinginitiatives in this area as appropriate.

Cooperation in the matters aboveshall be based on mutualconsultations and close coordinationbetween the Parties and shouldinclude technical and administrativeassistance for:(a) the exchange of statistics andinformation on legislation andpractices;(b) the drafting of legislation;(c) enhancing the capacity andefficiency of the institutions;(d) the training of staff;(e) the security of travel documentsand detection of false documents;(f) border management.

Cooperation shall focus in

particular:

(a) on the area of asylum on theimplementation of national legislationto meet the standards of the

http://en.wikipedia.org/wiki/Legislationhttp://en.wikipedia.org/wiki/Ratificationhttp://en.wikipedia.org/wiki/EU_member_stateshttp://en.wikipedia.org/wiki/Directorate-General_for_External_Relations_%28European_Commission%29http://en.wikipedia.org/wiki/Directorate-General_for_Enlargementhttp://en.wikipedia.org/wiki/Directorate-General_for_Enlargementhttp://en.wikipedia.org/wiki/Directorate-General_for_External_Relations_%28European_Commission%29http://en.wikipedia.org/wiki/EU_member_stateshttp://en.wikipedia.org/wiki/Ratificationhttp://en.wikipedia.org/wiki/Legislation


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Convention relating to the Status ofRefugees done at Geneva on 28July 1951 and the Protocol relatingto the Status of Refugees done atNew York on 31 January 1967thereby to ensure that the principleof "non-refoulement" is respected aswell as other rights of asylumseekers and refugees;

(b) on the field of legal migration, onadmission rules and rights andstatus of the personadmitted.

In relation to migration, the Partiesagree to the fair treatment ofnationals of other countries whoreside legally on their territories andto promote an integration policyaiming at making their rights andobligations comparable to those oftheir citizens.

ARTICLE 83

Prevention and contro l of ill egalimmigration; readmission

1. The Parties shall cooperate inorder to prevent and control illegalimmigration. To this end, Serbia andthe Member States shall readmit anyof their nationals illegally present ontheir territories and agree to fullyimplement the Agreement onreadmission between the Community

and Serbia and bilateral Agreementsbetween Member States and Serbiain so far as the provisions of thesebilateral Agreements are compatiblewith those of the Agreement onreadmission between the Communityand Serbia, including an obligationfor the readmission of nationals of

other countries and statelesspersons.

The Member States and Serbia shallprovide their nationals withappropriate identity documents andshall extend to them theadministrative facilities necessary forsuch purposes. Specific proceduresfor the purpose of readmission ofnationals, third country nationals andstateless persons are laid down inthe Agreement on readmissionbetween the Community and Serbiaand bilateral Agreements between

Member States and Serbia in so faras the provisions of these bilateral Agreements are compatible withthose of the Agreement onreadmission between the Communityand Serbia.

2. Serbia agrees to concludereadmission Agreements with theStabilization and Associationprocess countries and undertakes to

take any necessary measures toensure the flexible and rapidimplementation of all readmission Agreements referred to in this Article.

3. The Stabilization and AssociationCouncil shall establish other jointefforts that can be made to preventand control illegal immigration,including trafficking and illegal

migration networks.”


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EU DIRECTIVE ON COMMONSTANDARDS AND PROCEDURESFOR THE RETURN OFIRREGULARLY STAYING THIRDCOUNTRY NATIONALS

“ Clear, transparent and fair rulesneed to be fixed to provide for aneffective return policy as anecessary element of a wellmanaged migration policy.”

BACKGROUND: The Directive oncommon standards and proceduresfor the return of irregularly staying

third country nationals (http://register.consilium.europa.eu/pdf/en/08/st10/st10737.en08.pdf ) wasendorsed by the EuropeanParliament in June 2008 andofficially adopted by the Council on 9December 2008. EU Member Statesneed to incorporate it into nationallaw before December 2010.

CONTEXT: The Directive aims to set

out common standards andprocedures in the Member States for returning irregularly staying third-country nationals, ‘in accordancewith fundamental rights as generalprinciples of Community law as wellas international law, includingrefugee protection and human rightsobligations’. Illegal stay is defined asthe presence on the territory of aMember State of a third-country

national who does not fulfil, or nolonger fulfils the conditions of entry,stay or residence in that MemberState.

OVERVIEW OF THE RETURNSDIRECTIVE DEFINITION: Thepreamble to the Directive asserts

that ‘ decisions taken under this Directive should be adopted on acase-by-case basis and based onobjective criteria implying thatconsideration should go beyond themere fact of an illegal stay’, andthat it is legitimate for MemberStates to return irregularly stayingthird country nationals, ‘ providedthat fair and effic ient asylum systems are in place which fu llyrespect the principle of non-refoulement’ .

The Directive lays down common

rules on a number of issues relevantto return proceedings. It regulatesthe issuing of return decisions andentry bans and stipulates thatirregularly staying third countrynationals should be granted a periodranging between seven and thirtydays to independently organise theirdeparture before measures to carryout forced return are taken. Anumber of procedural safeguards are

granted to persons subject to returnprocedures, for example the right toappeal or seek review of decisionsrelated to return and to receiveessential health care and, in thecase of children, to access educationwhile removal is pending. TheDirective sets out provisions on thedetention of third country nationalspending removal, including themaximum length of time during

which a person can be detained andthe conditions of detention andestablishes particular rules for thedetention of children and families. Inaddition, it provides that MemberStates would have to possibility toderogate from some of theirobligations towards detained third

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country nationals in the event ofemergency situations.

The Directive stipulates thatdetention is justified only ‘if theapplication of less coercivemeasures would not be sufficient’ ,and emphasises that persons underdetention ‘ should be treated in ahumane and dignified manner withrespect for their fundamental rights’. The best interest of the child andrespect for family life should be aprimary consideration of MemberStates when applying the Directive,

and implementation should be‘without prejudice to the obligationsresulting from the GenevaConvention relating to the Status ofRefugees’. Respect for the rightsincluded in the Charter ofFundamental Rights of the EuropeanUnion is also reaffirmed.

Human Rights Concerns Aboutthe “ Returns Directive” : While

ECRE supported the establishmentof harmonised standardssafeguarding the rights of individualssubject to returns procedures, itconsiders that the Returns Directivefalls well short of this objective.

ECRE believes that the basicrequirement is that fair asylumsystems are in place, which properlyexamine whether a person will face a

risk of persecution if returned. Butcurrent shortcomings in MemberStates’ asylum systems mean that itcannot be taken for granted that aperson whose asylum claim hasbeen rejected in a European countrydoes not have a case for refugee or

other forms of humanitarian orsubsidiary protection status.

ECRE concerns about the ReturnsDirective include:

- The imposition of entry bans which will prohibit deportedasylum seekers from comingto the EU for up to 5 years,without taking into accountpossible changes in thecircumstances of theircountries of origin which mayforce them to leave again(Article 11);

- That Member States are notobliged to apply the Directiveto third country nationalsrefused entry or who areapprehended or interceptedin connection with theirregular crossing at aMember State’s externalborder (Article 2): i.esafeguards such as the right

to an effective remedy wouldnot be guaranteed for thesepeople.

- The obligation for MemberStates to issue a returndecision to any irregularlystaying third country nationalas a principle of European law(Article 6(1)), while there is noobligation for Member Statesto grant legal status to those

people for whom return is notfeasible.- Allowing an extremely short

period for a person to prepareto return: between seven andthirty days (Art. 7(1)).

- The non-suspensive characterof legal remedies and the


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insufficient safeguardsconcerning access to legalassistance (Article 13).

- The lack of an obligation forMember States to provide foran automatic judicial reviewwhere detention is ordered byadministrative authorities(Article 15 (2)).

- The possibility to detain thirdcountry nationals, includingfamilies, unaccompaniedchildren as well as othervulnerable persons, for up toeighteen months for reasons

beyond their control (Article16 (6)).

Monitoring:The Directive lacks provisionsguaranteeing that returns will beproperly overseen in order toevaluate whether they are safe,dignified and sustainable. ECREreaffirms that in the absence ofsystematic monitoring mechanisms

examining the outcome of returnpolicies, it is impossible to know ifthe persons returned have beenrefouled (directly by the sendingstate or indirectly by the country ofreturn) and if they have been able to(re-) integrate in the receivingcommunity. ECRE believes thatcollecting information on theoutcome of return is necessary as acheck on the correctness of return

decisions and on Member States’compliance with their internationalobligations. Such monitoring wouldalso be useful on a pragmatic basis,since it would instill confidence inpotential returnees and help evaluatethe success of return policies byrevealing whether returns have been

sustainable or the personsconcerned had to migrate again. It istherefore crucial that specificmechanisms be developed andmaintained in the Member States forthe effective monitoring of returneeswithin the countries of origin.

KEY RECOMMENDATIONS ONRETURN:

(REFERENCE TO - The WayForward: The return of asylumseekers whose applications have

been rejected in EuropePP3/06/2005/EXT/PC 8 © ECRE2005 www.ecre.org )

ECRE proposes the use of threedefinitions of return:

• Voluntaryreturn/repatriation : thereturn of persons with a legalbasis for remaining in the host

state who have made aninformed choice and havefreely consented to repatriate.

• Mandatory return : refers topersons who no longer have alegal basis for remaining inthe territory of the host stateand who are thereforerequired by law to leave thecountry. It also applies to

individuals who haveconsented to leave, or havebeen induced to leave bymeans of incentives or threatsof sanctions.

• Forced return : the return ofthose who have not given

http://www.ecre.org/http://www.ecre.org/


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their consent and thereforemay be subject to sanctionsor the use of force in order toeffect their removal.

Over-simplistic comparisons areoften drawn between the number ofasylum seekers whose claims havebeen rejected and the smallernumber of people removed. Yetreturn is not always possible ordesirable. Some states refuse totake back their nationals, particularlywhere their identity is in doubt. Thereare also humanitarian reasons for

not returning a person, such asvulnerability or a long period ofresidence in the host country.

ECRE recommends that:

• States should prioritisevoluntary repatriation andensure that all returns arecarried out in a safe, dignifiedand sustainable manner.

• Detention should only be usedas a last resort, as long asremoval arrangements are inprogress and when otheralternatives have been provenineffective.

• ECRE is opposed to thenotion of a 5-year entry banbeing imposed on asylum

seekers whose applicationshave been rejected and whoare facing return. Removalshould be considered asufficient resolution to theirsituation.

• EU countries should ensurethat the persons crossing theborder irregularly are giventhe possibility to express theirprotection needs, in order forthem not to be returned -directly or indirectly - tocountries where they wouldbe at risk of persecution

• Where return is not possibleor where it would beinhumane, people should begranted a legal status toremain in the country of

residence.• ECRE reminds Member

States that theimplementation of theDirective must take place incompliance with thoseinternational human rightsobligations that they havesigned up to, including theprinciple of non- refoulement ,

as laid down in Article 33 ofthe 1951 RefugeeConvention, Article 7 of the1966 International Covenanton Civil and Political Rights(ICCPR) and Article 3 of the1984 Convention againstTorture (CAT) and otherinstruments.

ECRE believes that: (Way

Forward)• The credibil ity of a removalsystem and an asylumsystem is fundamentallyundermined if it fails toprotect those in need ofinternational protection.ECRE does not dispute the


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fact that governments havethe right to return asylumseekers whose claims havebeen correctly rejectedfollowing a proper and fairasylum procedure. However,at present it cannot beconfidently assumed that ifsomeone’s asylum claim hasbeen rejected by a Europeancountry they are necessarily aperson not in need ofinternational protection in viewof procedural deficiencies inEuropean asylum systems or

restrictive interpretations ofthe refugee definition.

• Fair and efficient asylumsystems are a pre-requisiteto return. If states areconcerned with being able toundertake successful returnsthey must address thefairness of their asylumprocedures first, as wrong

decisions may lead to peoplebeing persecuted and havingto flee from their countries oforigin again.

• States must not enforcereturns prematurely. Asylumseekers, those who aregranted a status and thosewho are not granted a statusin Europe all face the threat of

return and experience the fearof premature return. There isan increasing trend acrossEurope to reduce the periodof time between the declaredend of hostilities in a givencountry/region andcommencing or threatening

return to that region. Statessometimes also delaydetermination of asylumclaims until the declared endof hostilities in the country oforigin when claimants can bedeemed not to be in need ofinternational protection. Asylum seekers whose claimshave been rejected, havetherefore been returned tounsafe conditions.

• Obstacles and alternativesto return Obstacles to thereturn of persons whoseclaims have been rejectedcan exist for a variety ofreasons. These can betechnical such as the practicalimpossibility of transporting aperson to a country with nofunctioning airport. They canalso be related to countries oforigin being unwilling orfeeling unable to cooperate

with returns, although it is anestablished principle ofinternational law that stateshave an obligation to receiveback their own nationals.

• International cooperationwith countries of origin in aspirit of solidarity at allstages of the return processis a pre-requisi te to

achieving sustainablereturn. It is in the bestinterests of all parties for hostcountries to maintain asupportive relationship withcountries of origin, throughoffering political, financial andeconomic support, to ensure


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that returns can take placeand that returnees have agood chance of successful re-integrating in their homecountries. The use of punitivemeasures, such as the threatof withdrawing developmentaid and support, is unlikely toachieve this and ECREstrongly opposes it. Statesshould also resist penalisingindividuals for matters that arevery often beyond their controlwhere return is not possible.Instead, developing

alternatives to return will oftenconstitute a better solution forcertain individuals as well asfor the state that hasconsidered and rejected theirasylum application.

• European states should notenforce removals andshould grant a legal statusto certain categories of

persons, especially thosewho cannot be returned forreasons beyond theircontrol. This would avoidasylum seekers whose caseshave been rejected being leftin unacceptable limbosituations, without supportand with few rights in the hostcountry. Legal statusesgranted could be either

temporary or permanent, asappropriate, and should inparticular be considered forpeople who have beenresident for 3 years or more inthe host country, and forpeople considered ‘vulnerable’, namely the sick,

older people, children(especially separatedchildren), single women orfemale heads of households.

• Increased efforts to enforcereturns An increase in effortsto enforce returns fromEurope has resulted inincreased returns. Stateauthorities have no interest inmaking the process of returnmore distressing or difficultthan necessary, so whilereturn procedures should beefficient, all returns should beundertaken in a manner thatis safe, dignified and humane .Individuals should be allowedto retain a sense of self-sufficiency and control overtheir own lives.

• In undertaking returnsEuropean states mustensure their actions do not

breachany of their human rightsobligations underinternational and Europeanlaw. ECRE has defined threedifferent categories of return:voluntary, mandatory andforced. Enabling voluntaryreturns is always preferablebut this term, according toECRE, only applies in the

case of persons with a legalbasis for remaining in a hostcountry. ECRE defines forcedreturn as the return of thosewho have not given theirconsent and who may besubject to sanctions or theuse of force on removal.


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Cases where the use of forcein deporting an individual hasresulted in their death orserious injury have shockedthe European public and ledto legal actions against stateauthorities. If implemented byEuropean states, forcedreturn must be carried out inaccordance with their humanrights obligations. Indeveloping European legalframeworks on returnprocedures the EuropeanUnion should help ensure the

implementation of suchhuman rights standards withinits Member States.

Some people who no longerhave a legal basis forremaining in the host countryfor protection-related reasonsconsent to return. But it isincreasingly common forEuropean states to use

methods to induce or coercesuch people to consent toreturn. ECRE defines all thesesituations as mandatoryreturn. Methods for inducingreturn can include: threat ofdetention or continueddetention and withdrawal ofsupport in the host country.Where consent to return iscoerced in this way it cannot

be said that a person hasfreely chosen to leave theirhost country.

• Detention should only beused as a last resort, andshould be in ful l compliance

with international humanrights law. Detention for thepurposes of preventingabsconding prior to returnshould only be used whenabsolutely necessary, for theminimum period required toorganise return. Alternativesshould always be explored.The trend in European states,however, is increasingly todetain, sometimes forindefinite periods, as astandard part of any removalprocedure. There is little

supporting statisticalevidence, however, thatpeople who are not detainedwill necessarily disappear andit is highly unlikely in the caseof certain vulnerable personssuch as the sick, older peopleor families with youngchildren.

• The denial of human right s

and the withdrawal ofsupport as a means offorcing asylum seekerswhose applications havebeen rejected to cooperatewith r eturn procedures orcompel them to leave oftheir own accord isunacceptable. Through suchwithdrawal of support statesrisk violating their obligations

under the European Convention on Human Rights.Instead asylum seekerswhose applications have been rejected should be adequatelysupported by the governmentof the host country throughthe provision of basic socio


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economic benefits until it isreally possible for them toleave that country . SomeEuropean governmentsextend positive incentivessuch as financial assistance, available through voluntaryrepatriation programmes, toasylum seekers whose applications have beenrejected. This is to bewelcomed and should bedeveloped across allEuropean countries. However,it is important that states

ensure that consent isinformed and no coercivemethods are used. Statesshould also seek theincreased participation ofNGOs and refugeerepresentatives, includingthose working in countries oforigin, in assisted return. ECRE strongly opposes inprinciple transfers to third

countries of persons whoseasylum applications havebeen rejected as a measureto enforce return.

• Follow up to return It is veryoften not known whether aperson returned to theircountry of origin has arrivedsafely and has been able tore-integrate into the

community. Systematicmonitoring would provide acheck on the correctness ofdecisions on asylum claimsand would instil confidence inpotential returnees. It couldalso be used to evaluate thesuccess of return policies.

• Sending s tates should setprocedures in place tocheck that returnees havereached their destinationsafely. There should also befollow-up and monitoring ofreturns to identify whetherreturn polic ies are safe,effective and sustainable .States should establish theirown monitoring systems, but itis important for NGOs andrefugees to be involved inmonitoring returns. Thesupport of the host countrymust not end once return hastaken place. In order toensure sustainable return, it isimportant for states to assistin reconstruction anddevelopment in countries oforigin and to support the re-integration of returnees.Successful reintegration in thecountry of origin is a key

factor in ensuring thesustainability of return.


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EU ACQUIS ON ASYLUM

1 THE ACQUIS IN THE CONTEXT

OF ENLARGEMENT.

“Established in 1957, the EuropeanUnion has now grown from six totwenty-seven Member States as aresult of five enlargements. 2 Enlargement is an important drivingforce for integration. Nevertheless, itwas the fifth enlargement, whichoccurred on an unprecedented scalein two successive waves in 2004 and2007 to welcome twelve newMember States, that defined thecontours of the enlargement policy.This now covers the countriesapplying for EU membership and thepotential candidates of the WesternBalkans. The former come under theenlargement process and the latterunder the stabilisation andassociation process.

UNHCR welcomes asylum law inSerbia and Montenegro.” (UNHCR)

Understanding The ImpulsesEncouraging Enlargement

Enlargement can be seen as one ofthe EU's more influential advocacytools. It can be argued that thedesire to join the EU has helped toencourage and transform countries

of Central and Eastern Europe intomodern, well-functioningdemocracies. Similarly, there is astrong body of opinion that allEuropean citizens benefit from

2 There are four ‘Candidate countries’. Serbia isnow a ‘potential’ Candidate country.

having neighbours that are stabledemocracies. Enlargement is acarefully managed process whichhelps the transformation of thecountries involved, extending peace,stability, prosperity, democracy,human rights and the rule of lawacross Europe.

Accession Process And TheRequirement To Adopt The

Acquis .

According to the Treaty on EuropeanUnion, any European country may

apply for membership if it respectsthe principles of liberty, democracy,respect for human rights andfundamental freedoms, and the ruleof law. Accession, however, can onlyfollow if the given European countryfulfils all criteria of accession, alsoknown as the Copenhagen Criteria ,which were fixed by the EuropeanCouncil in Copenhagen in 1993. TheCopenhagen criteria were reinforced

by the European Council in Madrid in1995, with a further one added:“Adoption of the AcquisCommunautaire (the entireEuropean legislation) and itseffective implementation throughappropriate

Negotiations

The first step in negotiations is the

so-called “screening”. It is ananalytical examination of the Acquisto explain it to the candidatecountries and, with them, to identifyareas where there may be problemsto be addressed.


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Monitoring

The Commission keeps the Counciland the Parliament duly informedabout the candidates' preparationsfor membership with the help of“Monitoring Reports”. They alsoserve to guide the candidatecountries in their preparations. A“Comprehensive Monitoring Report”serves as a basis to decide on anypossible remedial measure to betaken by the Commission.

2 OVERVIEW OF THE EU

ACQUIS ON ASYLUM

The relationship between the SAA

Agreements and the Acquis

The SAAs are the formal frameworkof contractual relations between theEU and the individual states of theWestern Balkans. They follow the

same format, and in many articleshave identical wording. Theagreements are structured along thesame lines as the long list of‘chapters’ negotiated with accessioncandidates. The difference is that foraccession candidates all chaptershave to be brought to a state of legalcompliance with the EU acquis, andproof of implementation; whereas theSAAs are more of a warming-up

exercise, inviting the partner state tomove gradually into compliance andotherwise to ‘cooperate’ in variousdomains .

Five main legal instruments makeup the EU acquis on asylum 3:

• Temporary Protection • Determining Responsibility

(Dublin)

• Qualifying for Protection

• Reception of Asylum

Seekers

• Asylum procedures

According to ECRE's assessment,

while some measures within these

instruments clearly aimed at

improving standards, many others

unfortunately allowed the lowest

possible standards to prevail.

3

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Temporary protection is a procedureof an exceptional character during anemergency situation that involves amass influx of displaced persons.Individual refugee statusdetermination is not immediatelypracticable in such a situation,because of the time and evidence

required to do a full and fairevaluation of protection needs.

Under such conditions it may benecessary to provide a generalisedform of protection to all members ofa large group, until they are able toenter a regular refugee statusdetermination process.

EU Rules

In July 2001 the EU introduced theTemporary Protection Directive oneof five legal instruments that makeup the EU acquis (body of law) onasylum.

This Directive aims to harmonisetemporary protection for displacedpersons in cases of mass influx onthe basis of solidarity betweenMember States. It applies to all

Member States except Denmark andIreland and came into force inDecember 2002. However, thetemporary protection mechanismestablished by the Directive has notbeen used yet.

The directive envisages a number ofobligations towards beneficiaries oftemporary protection. These include:a residence permit for the entireduration of the stay (Article 8),access to employment (Article 12),access to suitable accommodation(Article 13), access to education forminors (Article 14) as well as thepossibility of family reunification(Article 15).

ECRE favours the Directive as itstresses the exceptional character oftemporary protection and preserves

access to the asylum determinationprocedure. ECRE remainsnevertheless concerned with certainpoints such as the fact that theDirective does not ease admission tothe territory for persons arrivingoutside evacuation programmes, nordoes it contain any general provisionfor procedures, and in particular itcontains no reference to a right toappeal against the denial of

temporary protection.

ECRE's posit ion

• ECRE believes that temporaryprotection represents areasonable administrativepolicy only in an emergencysituation where individualrefugee status determinationis not immediately practicable

and where the implementationof temporary protection willenhance admission to theterritory.

• Persons under temporaryprotection should have accessto individual refugee

1 TEMPORARY PROTECTION:

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determination procedures assoon as it is practicable andcertainly prior to anysubsequent return.


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The ' Dublin Regulation ' establishes ahierarchy of criteria for identifying theEU Member State responsible forprocessing an asylum claim. Usuallythis will be the state through whichthe asylum seeker first entered theEU. The Regulation aims to ensurethat each claim is examined by oneMember State, to deter repeatedapplications, and to enhanceefficiency.

Application of this regulation canseriously delay the presentation ofclaims, and can result in claimsnever being heard. Causes ofconcern include the use of detention to enforce transfers of asylumseekers from the state where theyapply to the state deemedresponsible, the separation offamilies, the denial of an effectiveopportunity to appeal againsttransfers, and the reluctance ofMember States to use thesovereignty clause to alleviate theseand other problems. The Dublinsystem also increases pressures onthe external border regions of theEU, where states are often least ableto offer asylum seekers support andprotection.

The Dublin system impedesintegration of refugees by delayingthe examination of asylum claims, bycreating incentives for refugees toavoid the asylum system and live

‘underground,' and by uprootingrefugees and forcing them to havetheir claims determined in MemberStates with which they may have noparticular connection.

ECRE's posit ion

• The Dublin system fails toensure that refugees areprotected and wronglyassumes that there is a levelplaying field in the EU.

• The determination of the

country responsible for aclaim should not result intransfers to Member Statesthat cannot both guarantee afull and fair hearing of asylumclaims, and provide receptionconditions that at the veryleast comply with the EUReception Directive.

• Applicants must have a right

to remain in the country wherethey have requested asylumwhile appealing againsttransfer.

• The definition of a familyshould be extended, andrefugees should be able to join any family memberlawfully present in the EU.

• The Dublin system shouldallow Member States toprevent the transfer ofvulnerable persons that mayrequire specialised treatment.

ECRE has called for an immediateimprovement of the system inpractice. Ultimately the Dublin

2 DETERMININGRESPONSIBILITY (DUBLIN)

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi%21celexplus%21prod%21DocNumber&lg=en&type_doc=Regulation&an_doc=2003&nu_doc=343http://www.ecre.org/topics/asylum_in_EU/detentionhttp://www.ecre.org/topics/asylum_in_EU/determining_responsibility/impact_of_Dublinhttp://www.ecre.org/topics/asylum_in_EU/determining_responsibility/impact_of_Dublinhttp://www.ecre.org/topics/integrationhttp://www.ecre.org/topics/asylum_in_EU/receptionhttp://www.ecre.org/topics/asylum_in_EU/receptionhttp://www.ecre.org/topics/asylum_in_EU/vulnerable_groupshttp://www.ecre.org/topics/asylum_in_EU/vulnerable_groupshttp://www.ecre.org/topics/asylum_in_EU/receptionhttp://www.ecre.org/topics/asylum_in_EU/receptionhttp://www.ecre.org/topics/integrationhttp://www.ecre.org/topics/asylum_in_EU/determining_responsibility/impact_of_Dublinhttp://www.ecre.org/topics/asylum_in_EU/determining_responsibility/impact_of_Dublinhttp://www.ecre.org/topics/asylum_in_EU/detentionhttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi%21celexplus%21prod%21DocNumber&lg=en&type_doc=Regulation&an_doc=2003&nu_doc=343


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Regulation should be abolished andreplaced by a more humane andequitable system that considers theconnections between individualasylum seekers and particularMember States.


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The 1951 Refugee Convention envisages protection for any personunable to return to his/her countrydue to "a well-founded fear of beingpersecuted for reasons of race,religion, nationality, membership of aparticular social group or politicalopinion."

Even where this standard is not met,European states may not returnindividuals in breach of internationalobligations such as the absoluteprohibitions on torture, execution orinhuman or degrading treatmentcontained in the EuropeanConvention on Human Rights (ECHR).

EU Rules

In April 2004 the EU introduced theQualification Directive , one of fivelegal instruments that make up theEU acquis (body of law) on asylum.The Directive, which applies to allMember States except Denmark,came into force in October 2006, andonly Sweden and Spain have not yettransposed it into national law.

This Directive aims to harmonise theway Member States provide refugeeprotection, and requires MemberStates to provide "subsidiaryprotection" to people at risk of

serious harm. At the same time, itsets minimum rights that personsqualifying for international protectionshould receive.

A person's chances of being grantedasylum still vary hugely according tothe country where the asylum seekerhas his or her asylum claimprocessed. For example, Iraqis whoflee their home country and end upin Germany have a 85% of beingrecognised as a refugee at firstinstance and those who apply forasylum in Slovenia do not get a

protection status at all.

The Qualification Directive hasraised standards by for an exampleintroducing a European subsidiaryprotection and by requiring therecognition of non-state actors ofpersecution, but in many otherrespects it has encouraged MembersStates to lower their standards.

ECRE's posit ion

• Any rights afforded torefugees by the 1951 GenevaConvention should also begranted to all persons undersubsidiary protection, as bothcategories of protectedpersons have similar needsand circumstances.

•

ECRE welcomes therecognition of child-specificand gender-specific forms ofpersecution and provisionsaimed specifically at theneeds of unaccompaniedminors (see also section onVulnerable groups ).

3 QUALIFYING FORINTERNATIONAL PROTECTION

http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdfhttp://www.hrcr.org/docs/Eur_Convention/euroconv.htmlhttp://www.hrcr.org/docs/Eur_Convention/euroconv.htmlhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:EN:HTMLhttp://www.ecre.org/topics/asylum_in_EU/vulnerable_groupshttp://www.ecre.org/topics/asylum_in_EU/vulnerable_groupshttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:EN:HTMLhttp://www.hrcr.org/docs/Eur_Convention/euroconv.htmlhttp://www.hrcr.org/docs/Eur_Convention/euroconv.htmlhttp://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf


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A refugee's chances of gainingprotection depend greatly upon theprocedures used to assess asylumcases. Even the most compellingclaim for international protection canfail, if it is not fully and fairlyconsidered. Border and immigrationauthorities must understand theobligation to receive asylum seekers,

while legal aid and interpretationservices must be available to asylumseekers.

Fair and thorough procedures benefitboth refugees and host states byproducing high quality asylumdecisions at first instance. A right toappeal asylum decisions, and theright to remain in the host countryduring the appeals process, provide

safeguards to ensure that firstinstance decisions are legallycorrect. Accelerated proceduresshould generally not be applied,except to speed up the granting ofprotection to those in particular needof it.

EU Rules

On 1 December 2005 the EU Asylum

Procedures Directive came intoforce. It was the fifth piece oflegislation flowing from the asylumagenda of the Amsterdam Treaty.The deadline for transposition of theDirective, which applies to allMember States except Denmark,passed in December 2007.

The purpose of the Directive is toestablish minimum standards forMember State procedures forgranting and withdrawing refugeestatus. It deals with issues such asaccess to procedures (includingborder procedures), detention, theexamination of applications, personalinterviews, and legal assistance. Italso defines concepts such as thefirst country of asylum, safecountries of origin, safe thirdcountries, and European safe thirdcountries.

In ECRE's view the Directive fallsshort of standards conducive to a fulland fair examination of an asylumclaim. For example, it provides onlyseverely limited rights to remainpending the examination of anapplication, to a personal interview,and to free legal assistance.

Further issues of concern includeinadequate safeguards for detention,

the significant scope for acceleratedprocedures, failure to require thatappeals have suspensive effect, andthe sanctioning of border proceduresthat derogate from the principles andguarantees of the Directive itself.Finally, international refugee lawproperly focuses on individualcircumstances, making theDirective's inclusion of ‘safe thirdcountry' and ‘safe countries of origin'

concepts alarming.3 As Belgium takes over the Presidency of theEU time is running for achieving a CommonEuropean Asylum System (CEAS) by 2012 ashas been confirmed by the European Council inthe Stockholm programme and in the StockholmAction Plan. ECRE therefore very much

5 ASYLUM PROCEDURES

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welcomes the fact that the Belgian Presidencyhas made asylum one of its priorities.

ECRE's posit ion

• Everyone who applies forasylum in the EU should beable to access an asylumprocedure as soon as theyarrive.

• Everyone should have theright to stay until a finaldecision has been reached ontheir case. In order to receivea fair hearing they must alsohave the right to an interview,interpreter and legal advice.

• Asylum expert teams shouldbe set up to channelresources to countries withless developed asyluminfrastructures.

• The quality of asylumdecision-making should beimproved by sharingexpertise, information andbest practices among MemberStates.

• The adoption of minimumstandards and theestablishment of qualityassessment mechanisms aswell as the involvement ofUNHCR, NGOs and other

independent experts, can helpraise the quality of asylumdecision-making

READMISSION AGREEMENTSBETWEEN EU AND THIRDCOUNTRIES.

BACKGROUND: On 1 January2008, the visa facilitation andreadmission agreement betweenSerbia and the EU came into force.

DEFINITION: Readmissionagreements are agreementsbetween States in which theyundertake to readmit into theirterritory their own nationals whohave been found in an irregular

situation in the territory of the othersignatory, as well as other thirdcountry nationals and statelesspersons who are not their ownnationals but who have crossed theirterritory in transit before beingintercepted in the other signatory’sterritory. CONTEXT: Bilateral RAs have beenused for many years between manyEuropean countries, but only when

the 1997 Treaty of Amsterdam cameinto force in 1999 did the (then)European Community have thepower to conclude readmissionagreements in its own name. Thelegal basis for concluding RAs was Article 63(3)(b) of the Treatyestablishing the EuropeanCommunity (TEC), which providedfor the Council to adopt measuresconcerning “ illegal immigration and

illegal residence, includingrepatriation of illegal residents ”. Inthe Hague Programme (2004-2009)the European Council agreed toappoint a Special Representative fora common readmission policy tofacilitate negotiations and improvecooperation of third countries in RAs.


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EU RAs in South East and Eastern Europe:

Countries/Entit ies Status Readmission Agreement Albania Entered into force on 1 May 2006 (on 18 Sept 2007 a

visa facilitation agreement was signed with Albania;proposal for visa exemption by end 2010)

Russian Federation Entered into force on 1 June 2007 - for third countrynationals 1 June 2010.

Ukraine Entered into force on 1 January 2008 - for thirdcountry nationals 1 January 2010

Bosnia andHerzegovina

Entered into force on 1 January 2008 (visa facilitationagreement – proposal for visa exemption by end2010)

Montenegro Entered into force on 1 January 2008 (visaliberalisation since 19 December 2009)

Serbia Entered into force on 1 January 2008 (visaliberalisation since 19 December 2009)

Former YugoslavRepublic of Macedonia

Entered into force on 1 January 2008 (visaliberalisation since 19 December 2009)

Moldova Entered into force on 1 January 2008 (including avisa facilitation agreement)

Georgia Negotiations concluded. RA shortly to be signed.Visa facilitation agreement already signed.

Criteria for the identification ofcountries with which to concludeRAs were defined by the Council in2002. These include: (i) migrationpressures on the EU, (ii) regionalcoherence, and (iii) geographicalproximity. They are not subject toconsiderations regarding thehuman rights situation in thetarget countri es and maytherefore raise issues in t erms ofcoherence with the fundamentalrights principles that the EU seeksto advance in its externalrelations. Although, in principle, RAs arereciprocal arrangements, in practicethey serve the EU’s interest to curb

and control migration flows. Toinduce third countries to cooperateon readmission, they are therefore

generally linked to visa facilitati onagreements or other incentiv e s 8,such as mobility partnerships 9.

8 The most common incentives used by the EU-27 MS include special trade concessions,

preferential entry quotas for economic migrants,technical cooperation and assistance, increaseddevelopment aid and short-term visa exemption.9 Mobility partnerships are tailor made andencompass a broad range of issues ranging fromdevelopment aid to temporary visa facilitation,circular migration schemes etc. Pilot mobility

partnerships have been signed with Cape Verde,Moldova and Georgia. Another one is underdiscussion with Senegal.


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Therefore, RAs are very much partof the current debate focusing onmigration and development.IMPLEMENTATION OFREADMISSION AGREEMENTS: Inpractice, EU readmissionagreements are implementedbetween each Member State and thethird country concerned. This mightbe though previous bilateralarrangements or agreements whichMember States had in place with thethird country or through thenegotiation of implementingprotocols. Often, the actual decision

about sending a person back and theoperation it involves is within thecompetence of the Member State.

However, it is important to rememberthat in the implementation process ofthese agreements or arrangements,Member States have to comply withthe Charter of Fundamental Rights(CFR) and EU law , includingstandards set out in the Return

Directive, which provides acommon minimum set of l egalsafeguards which mustaccompany the issuing of a returndecision, and includes arequirement to provide for aneffective forced return monitoringsystem. 10

Readmission application Anytransfer of an individual to be

readmitted must follow an applicationknown as a "readmission application"submitted by the requesting State tothe requested State. However, no

10 Directive 2008/115/EC of 16 December 2009on common standards and procedures in MemberStates for returning illegally staying thirdcountry nationals, Art.8(6).

application is required when theperson is in possession of a validtravel document or an identity cardand, where necessary, a visa or aresidence permit issued by therequested State.

Evidence For the readmission ofthird-country nationals, thereadmission agreements list thedocuments which constituteevidence making it possible toestablish:

• proof that the readmission

conditions have been fulfilled;• prima facie evidence that the

readmission conditions havebeen fulfilled. In such cases,the Member States and thepartner country shall considerthat the readmissionconditions have been fulfilledunless there is proof to thecontrary

Time limits :

• The requesting State mustsubmit readmissionapplications for third-countrynationals at most one yearafter becoming aware of thefacts.

• Replies to applications shallbe provided in writing within aset time limit from the date of

receipt of the readmissionapplication.

• Accelerated Readmissionprocedures: For somereadmission agreements,such as that with Serbia, thistime limit is reduced if theindividual is apprehended in


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the border region of therequesting State.

• If there is no reply within theextended time limit, thetransfer shall be deemed tohave been approved. If theapplication is rejected, thereadmission shall not takeplace. Rejection decisionsmust be justified by therequested State. If theapplication is accepted, thereadmission shall take place.In principle, transfers areorganised within the three

months following acceptance.

THE HUMAN RIGHTS IMPLICATIONS OF READMISSION

AGREEMENTS Key principle: Readmissionagreements should be implemented infull compliance with the principle ofnon-refoulement . In theimplementation of readmissionagreements, EU Member States

should ensure that the personscrossing the border irregularly aregiven the possibility to express theirprotection needs, in order to avoidbeing returned – directly or indirectly –to countries where they would be atrisk of persecution. Lack of Human Rights Safeguards A major concern about readmissionagreements is that human rightspriorities are often overlooked whenorganising the technical aspects ofreadmission procedures.

- First of all, countries areselected with noconsiderations of their humanrights record and their respectfor the rule of law.

- Human rights and proceduralsafeguards, as well asguarantees againstrefoulement, are notsufficiently incorporated orclearly defined in RAs.

- Accelerated readmissionprocedures pose a particularserious concern as they resultin people who have irregularlycrossed the border beingimmediately returned to thethird country and preventasylum seekers from applying

for international protection. Itis not unusual for people tobe returned without theirpresence having beenrecorded, let alone theirprotection needs or evenfear of persecution in thecountry to which they arebeing returned having beenascertained.

- When persons are readmittedto a country with

underdeveloped or non-existent asylum systems, italso increases the risk ofchain refoulement to thecountry of origin.

- Failing to protect individualsand guaranteeing their right toasylum as a consequence ofRAs, could be worsened bythe provisions on re-entrybans of up to five years forindividuals subject to aremoval order or a return


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decision i n the ReturnDirective. 11

NEGOTIATIONS & LACK OF

TRANSPARENCY:Readmission agreements aremandated by the Council andnegotiated by the Commission, andsubsequently implemented at abilateral level between each MemberState and the concerned thirdcountry.Limited information is available onthe negotiating process ofReadmission agreements and its

content. When negotiations arecompleted a final text is initialled andthe Commission formally submitsthis text to the Council and (now) tothe European Parliament. A jointreadmission Committee (JRC) is setup to monitor the implementation ofthe RA. JRCs are composed ofrepresentatives from theCommission, Member States and theother contracting third country.

The European Parliament hascriticised shortcomings in RAsconcluded to date, particularly fromthe point o f view of human rightsprotection. 12 LACK OF MONITORING Nomonitoring system is in place inorder to make sure that EU MemberStates’ international obligations arefully respected. This is problematicsince RAs do not propose any

11 Return Direc tive, Article 11.12 See for instanc e, oral questionsubmitted on 8 J anuary 2010:http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-/ /EP/ /TEXT+OQ+O-2010-0001+0+DOC+XML+V0/ /EN&language=EN

measures to support thereintegration of returnees and, withsome exceptions, do not stipulatethe conditions for reception in ahumane manner in the country oftransit or origin. It is also importantthat RAs are accompanied withresources to ensure thesustainability of return since thereare issues concerning the capacity ofthird countries to implement the RA.Generally, RAs are accompanied byprovisions for financial assistance.The use of EU funds, allocated tosupport implementation by the

Member States of the removalscarried out in the framework of anEU RA, should be monitored by theEP in the exercise of its budgetaryfunctions. Political control on thespending stemming from RAs wouldbe facilitated if the EP wererepresented in the JRCs and hadaccess to information relating to theimplementing phase of EU RAs.LACK OF EVALUATION: To date

there are no accurate data allowing acomprehensive evaluation ofreadmission agreements in terms oftheir effectiveness and human rightsimplications. The Commissioncollects data from Member States onreturns/removals under Regulation862/2007 (on Community statisticson migration and internationalprotection). However, reported datado not provide any information

regarding the impact of EU RAs onthe overall number of third countrynationals who were removed fromthe EU. As part of the evaluation to beundertaken by 2010, theCommission sent a questionnairefollowing the structure of RAs to the


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Member States and the thirdcountries with which the EU has RAsin place. The information receivedthrough the questionnaires is beinganalysed and will be part of theevaluation which will be published inthe form of a Communication.ECRE RECOMMENDATIONS

[ECRE always ensures that its policydocuments/publications aredisseminated to the concerned targetgroup and to a wider audienceworking on the issues. This is astrategic view based on the notion

that a good policy paper should aimto have the widest dissemination toits various advocacy targets.]

1. Explicit Human Rightssafeguards and guaranteesagainst refoulement should beincluded in all EU RAs

2. EU RAs should ensureaccess to protection at the

external borders of the EU forall asylum seekers. Thepractice of simplified oraccelerated procedures,whether under the RAs andtheir implementingagreements or under informalarrangements, should beclosely monitored againstpossible infringements of theright to asylum.

3. The EU should consider thehuman rights situation and theavailability of a well-functioning asylum system inthird country before enteringinto negotiations on, orimplementing, readmissionagreements with that country.

4. The European Parliamentshould be fully involved in theimplementation phase of EURAs.

5. NGO input to the JRCs shouldbe encouraged

6. Follow-up and monitoringshould take place for peoplereadmitted and includeaccess to all holding facilities

7. Where returns in the contextof readmission agreementshave led to human rightsabuses or refoulement theyshould be suspended until therisk of such treatment can beeliminated

8. The Commission shouldadopt an evaluation processof EU RAs that assesses notonly their effectiveness fromthe point of view of returns,but also their implications in

terms of respect for the EUCharter on FundamentalRights.

9. Statistics on readmissionshould be comprehensive byincluding data on returnsfurther to bilateral readmissionarrangements and morereadily available

For more information see report bythe Justice Freedom andSecurity department: "Readmissionpolicy in the European Union" 2010at www.europarl.europa.eu/studies

http://www.europarl.europa.eu/studieshttp://www.europarl.europa.eu/studies


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DUBLIN II REGULATION[DETERMINING RESPONSIBILITY]

Act Entered into force: 17.3.2003 This regulation replaces theprovisions of the 1990 Dublin Convention with Communitylegislation. Its objective is to identifyas quickly as possible the MemberState responsible for examining anasylum application, to establish

reasonable time limits for each of thephases of determining the MemberState responsible, and to preventabuse of asylum procedures in theform of multiple applications.

SUMMARY

“In accordance with the DublinRegulation, Member States have toassess which Member State is

responsible for examining an asylumapplication lodged on their territoryon the basis of objective andhierarchical criteria. The system isdesigned to prevent "asylumshopping" and, at the same time, toensure that each asylum applicant'scase is processed by only oneMember State.

Where another Member State is

designated responsible under thecriteria in the Regulation, that Stateis approached to take charge of theasylum seeker and consequently toexamine his/her application. If theMember State thus approachedaccepts its responsibility, the first

Member State must transfer theasylum seeker to that Member State.

In the case where a Member Statehas already examined or begun toexamine an asylum application, itmay be requested to take back theasylum seeker who is in anotherMember State without permission.

The Member State responsiblewhere the applicant is transferredmust then complete the examinationof the application.

GENERAL PRINCIPLES

An asylum application is to beexamined by only one MemberState. Any Member State maydecide to examine an asylumapplication, even if such examinationis not its responsibility under thecriteria of this Regulation.

The situation of a minor must be

indissociable from that of his/herparent or guardian lodging anasylum application.”

ECRE'S POSITION ON THEDUBLIN ‘SYSTEM’

The ' Dublin Regulation ' establishes ahierarchy of criteria for identifying theEU Member State responsible forprocessing an asylum claim. Usually

this will be the state through whichthe asylum seeker first entered theEU. The Regulation aims to ensurethat each claim is examined by oneMember State, to deter repeatedapplications, and to enhanceefficiency.

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ECRE argues that the application ofthis regulation can seriously delaythe presentation of claims, and canresult in claims never being heard.Causes of concern include the use ofdetention to enforce transfers ofasylum seekers from the state wherethey apply to the state deemedresponsible, the separation offamilies, the denial of an effectiveopportunity to appeal againsttransfers, and the reluctance ofMember States to use thesovereignty clause to alleviate theseand other problems. The Dublin

system also increases pressures onthe external border regions of theEU, where states are often least ableto offer asylum seekers support andprotection.

The Dublin system impedesintegration of refugees by delayingthe examination of asylum claims, bycreating incentives for refugees toavoid the asylum system and live

‘underground,' and by uprootingrefugees and forcing them to havetheir claims determined in MemberStates with which they may have noparticular connection.

“ The Dublin system fails to ensurethat refugees are protectedand wrongly assumes that there isa level playing fi eld in the EU.”

ECRE recommended that :

• The determination of thecountry responsible for aclaim should not result intransfers to Member Statesthat cannot both guarantee afull and fair hearing of asylum

claims, and provide receptionconditions that at the veryleast comply with the EUReception Directive.

• Applicants must have a rightto remain in the country wherethey have requested asylumwhile appealing againsttransfer.

• The definition of a familyshould be extended, andrefugees should be able to join any family memberlawfully present in the EU.

• The Dublin system shouldallow Member States toprevent the transfer ofvulnerable persons that mayrequire specialised treatment.

ECRE has called for an immediateimprovement of the system inpractice. Ultimately the DublinRegulation should be abolished andreplaced by a more humane andequitable system that considers theconnections between individualasylum seekers and particularMember States

THE COMMISSION PROPOSALRECASTING 13 THE DUBLINREGULATION

The Dublin Regulation continues tocreate hardship and unfairconsequences for asylum seekers

and persons in need of internationalprotection. Based on the myth thatprotection standards are equivalentthroughout the EU and theassociated states, the Dublin system

13 proposed amendments. Please see briefing paper on ‘recasting.’

http://www.ecre.org/topics/asylum_in_EU/detentionhttp://www.ecre.org/topics/asylum_in_EU/determining_responsibility/impact_of_Dublinhttp://www.ecre.org/topics/asylum_in_EU/determining_responsibility/impact_of_Dublinhttp://www.ecre.org/topics/integrationhttp://www.ecre.org/topics/asylum_in_EU/receptionhttp://www.ecre.org/topics/asylum_in_EU/receptionhttp://www.ecre.org/topics/asylum_in_EU/vulnerable_groupshttp://www.ecre.org/topics/asylum_in_EU/vulnerable_groupshttp://www.ecre.org/topics/asylum_in_EU/receptionhttp://www.ecre.org/topics/asylum_in_EU/receptionhttp://www.ecre.org/topics/integrationhttp://www.ecre.org/topics/asylum_in_EU/determining_responsibility/impact_of_Dublinhttp://www.ecre.org/topics/asylum_in_EU/determining_responsibility/impact_of_Dublinhttp://www.ecre.org/topics/asylum_in_EU/detention


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results in asylum seekers beingtransferred to states where theirbasic human rights are violated,access to protection is de factodenied or access to specifictreatment for asylum seekers withspecial needs is non-existent. This isincreasingly being recognised in the jurisprudence of national courtsacross Europe as in numerous casestransfers of asylum seekers underthe Dublin Regulation have beensuspended on the basis that theywould result in such human rightsviolations, including refoulement.

While it remains ECRE’s positionthat the Dublin system is an obstacleto an efficient, harmonised andhumane CEAS, the organisationacknowledges that the Commissionproposal recasting the DublinRegulation introduces a number ofsignificant improvements to theexisting system. These amendmentswould, if adopted, indeed mitigatesome of the negative effects that its

operation may have on asylumseekers.

In relation to the recasting of the

Dublin regulation ECRE calls

upon the Council and the

European Parliament in particular

to:

• Ensure that the right toinformation (recast Article 4)and a personal interview(recast Article 5) isguaranteed in allcircumstances before atransfer decision is taken and

therefore refrain fromintroducing exceptions tothese rights.

• Ensure that the right to aneffective remedy against aDublin transfer isguaranteed in the recastRegulation. In line withMember States legalobligations, such a remedymust have a suspensiveeffect.

• Seek consensus on the needfor a temporary suspensionmechanism as an integralpart of the Dublin system inorder to allow the EUinstitutions to interveneeffectively whenever asylumseekers may become thevictim of dysfunctionalasylum systems in theMember States.

• Ensure that detention ofasylum seekers within theDublin system remains ameasure of last resort byupholding the principle inrecast Article 27 (2) thatindividualscan only be detained for thepurpose of carrying out atransfer after the Dublindecision has been taken andonly if there is a significantrisk of absconding


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THE HAGUE PROGRAMME

THE ACT: “Communication fromthe Commission to the Counciland the European Parliament of 10May 2005 – The HagueProgramme: ten priori ties for thenext five years. The Partnershipfor European renewal in the fieldof Freedom, Security and Jus tice[COM(2005) 184 final – OfficialJournal C 236 of 24.9.2005].”

The Hague Programme, adopted atthe European Council of 4 and 5November 2004, sets out 10priorities for the Union with a view tostrengthening the area of freedom,security and justice in the next fiveyears.

“The Commission feels that effortsshould be concentrated on 10

priorities14

:

The following are theCommission’s priorities vis a vismigration and refugees:

Defining a balanced approach tomigration . The Commission intends

14 1 Strengthening fundamental rights andcitizenship. Anti-terrorist measures . 2 Defining

a balanced approach to migration . 3 Developingintegrated management of the Union’s external

borders. 4 Setting up a common asylum procedure. 5 Maximising the positive impact ofimmigration . 6 Striking the right balance

between privacy and security while sharinginformation . 7 Developing a strategic concept ontackling organised crime . 8 A genuine Europeanarea of justice . Sharing responsibility andsolidarity

to come up with a new, balancedapproach to dealing with legal andillegal immigration. This involvesfighting illegal immigration and thetrafficking of human beings ,especially women and children. TheHague Programme provides for theadoption of a communication and aplan for legal immigration .

The proper management ofmigration flows also involves greatercooperation with third countries in allfields, including the readmission andreturn of migrants. The measures

introduced by the Commission toachieve this include the “ Solidarityand Management of MigrationFlows ” framework programme, whichcovers the creation of an ExternalBorders Fund , an Integration Fund , aReturn Fund and a EuropeanRefugee Fund .

Developing integratedmanagement of the Union’s

external borders . Within the Union,the free movement of persons ismade possible by the removal ofinternal border controls. Thisrequires greater efforts to strengthenthe integrated management ofexternal borders. The FRONTEX-

Agency has been set up to manageexternal borders and may be givenadditional tasks in the future. Equallyimportant is the creation of an

effective visa policy throughdevelopment of, for example, a visainformation system and, in the future,a common European consularservice. One of the short-termpriorities is to make identity andtravel documents more secure by

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52005PC0184:EN:NOThttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14525_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14525_en.htmhttp://europa.eu/legislation_summaries/employment_and_social_policy/growth_and_jobs/l14507_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14509_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14509_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14509_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14571_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14571_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14572_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14570_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14567_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14567_en.htmhttp://europa.eu/legislation_summaries/institutional_affairs/institutions_bodies_and_agencies/l33216_en.htmhttp://europa.eu/legislation_summaries/institutional_affairs/institutions_bodies_and_agencies/l33216_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14516_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14516_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14516_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14516_en.htmhttp://europa.eu/legislation_summaries/institutional_affairs/institutions_bodies_and_agencies/l33216_en.htmhttp://europa.eu/legislation_summaries/institutional_affairs/institutions_bodies_and_agencies/l33216_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14567_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14567_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14570_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14572_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14571_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14571_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14509_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14509_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14509_en.htmhttp://europa.eu/legislation_summaries/employment_and_social_policy/growth_and_jobs/l14507_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14525_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14525_en.htmhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52005PC0184:EN:NOT


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equipping them with biometricidentifiers .

Setting up a common asylumprocedure . The Commission aims toset up a harmonised and effectiveasylum procedure. In the short-term,it will be submitting a proposal for adirective concerning long-termresident status for refugees and inthe medium-term, once the way inwhich existing legislation is beingapplied has been assessed, it willpropose a common procedure andstatus for refugees. Operational

cooperation in the field of asylum willbe continued and maintained,notably by way of the EuropeanRefugee Fund.

Maximising the positive impact ofimmigration . Immigrantcommunities must be integrated ifthey are not to become isolated andexcluded from society. TheCommission encourages Member

States to push ahead with theirintegration policies in order to helpimprove mutual understanding anddialogue between religions andcultures. It also intends to set up aEuropean framework forintegration and to promote astructural exchange of experienceand information on integration.”

CONTEXT

At the Tampere Council in 1999 theEuropean Council decided to createa Common European AsylumSystem, based on certain principles,including the promise of protection.Building on the decisions made atthe Tampere Council, the European

Council adopted the HagueProgramme for the area ofFreedom, Security and Justice on 5November 2004. The HagueProgramme highlights the EU policypriorit ies for the period of 2005-2010. 15

The Hague Programme included acommitment to change the decision-making system for most ECimmigration and asylum law no laterthan 1 April 2005, increasingQualified Majority Voting (QMV) inthe Council and the use of the co-

decision procedure with theEuropean Parliament.

Some observers argued that newasylum measures could already beadopted with QMV/co-decision ifthey do not refer to asylumprocedures. But the consensusseems to be that no asylummeasures will be introduced underthe QMV/co-decision procedure until

after the Council has adopted theProcedures Directive. Under the co-decision procedure the influence ofthe Parliament is expected toincrease substantially. Under theconsultancy procedure the Councilhad to consult the Parliament butwas not obliged to do more than totake their views under consideration.The use of co-decision means theParliament will have increasing

powers and no longer be onlyconsultative. The Parliament willshare the legislative power with the

15 ECRE, ‘ECRAN Advocacy Manual: ECRE’sAdvocacy positions and activities relating toissues on the EU asylum agenda and relatedmatters’, July 2005.

http://europa.eu/legislation_summaries/justice_freedom_security/fight_against_terrorism/l14154_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/fight_against_terrorism/l14154_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14561_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14561_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14502_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14502_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14502_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14502_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14561_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l14561_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/fight_against_terrorism/l14154_en.htmhttp://europa.eu/legislation_summaries/justice_freedom_security/fight_against_terrorism/l14154_en.htm


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Council, which will no longer be ableto ignore or not take on board theviews of the Parliament.

ECRE’s INITIAL RESPONSE:

“The aim of the Common European Asylum System in its second phaseis the establishment of a commonasylum procedure and a uniformstatus for those who are grantedasylum or subsidiary protection”,based on “the full and inclusiveapplication of the GenevaConvention on refugees and other

relevant Treaties”.

• The Procedures Directiveshould be adopted “as soonas possible”.

• The Commission shouldevaluate the legislation of thefirst phase by 2007.

• Second phase instrumentsshould be adopted by 2010,i.e. the deadline for theCommon European AsylumSystem is set on 2010.

• The Commission shouldprepare two feasibility studies;i.e. on joint processing ofasylum applications bothwithin and outside the EU.

• The Commission and theCouncil should establish"appropriate structuresinvolving the national asylumservices of Member Stateswith a view to facilitatingpractical and collaborativecooperation".

• Funds should be madeavailable to assist MemberStates in the processing ofasylum applications and in the

reception of categories ofthird-country nationals.

• Partnership with thirdcountries is important forimproving their capacity forrefugee protection.

• The Commission shoulddevelop Regional ProtectionProgrammes.

• An effective removal andrepatriation policy should beestablished, including theadoption of a ReturnsDirective, the establishment ofa European Return Fund anda common ReadmissionPolicy.

• All measures in JHA, exceptfor legal migration, will bedecided upon by QualifiedMajority Voting in the Councilwith co-dec ision with theParliament. 16

The Commission adopts thereport on implementation of theHague Programme(July 2008)

The European Commission adoptedits third annual report on theimplementation of the HagueProgramme, assessing theachievements in the area of Justice,Freedom and Security in the year2007.

The report, also referred to as the‘Scoreboard’, found that that theachievements were “rather

16 ECRE, ‘ECRAN Advocacy Manual: ECRE’sAdvocacy positions and activities relating toissues on the EU asylum agenda and relatedmatters’, July 2005.


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unsatisfactory”, revealing a lowerrate of achievement (38%) comparedto 2006 (53%). With regard to theCommon European Asylum System,“some progress” was reported, but“overall the results in this fields arenonetheless mixed”. Asachievements in the field, theCommission identified the evaluationof the transposition andimplementation of the legalinstruments of the first phase of aCommon European Asylum System,the completion of the Policy Plan on Asylum and the proposal f

2010 training handbook migrations

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