Within the borders of the EU the emphasis is on managing migration and securing the EUs borders with the rest of the world. This internal dimension of the EUs approach blurs immigration and asylum policies with cooperation among member states on counterterrorism, crime, and border security issues. It is unsurprising that it results in measures that are incompatible with the obligations of EU member states under the 1951 Refugee Convention1 or the European Convention for the Protection of Human Rights (ECHR).2 Efforts to develop common minimum standards for the treatment of asylum seekers have often undermined rather than enhanced protection.
A telling illustration of the direction EU policy is taking is the Asylum Procedures Directive. In September 2005, the European Parliament expressed severe reservations about the draft directive and called for over 100 amendments to the document. In a reaffirmation of the principle that an asylum seeker should have his or her claim individually assessed, the Parliament argued that any applicant should have the right to rebut the presumption of safety associated with the proposal for safe third country lists.3 Human Rights Watch and others had called in March 2004 for withdrawal of the draft directive on grounds that the most contentious provisions are all intended to deny asylum seekers access to asylum procedures and to facilitate their transfer to countries outside the EU.4
Yet the EU Justice and Home Affairs Council passed the Asylum Procedures Directive on December 1, 2005, without significantly responding to the reservations expressed about the draft by the Parliament or others. The United Nations High Commissioner for Refugees (UNHCR) stated the following day that the agency was worried that the implementation of the directive may lead to breaches of international refugee law if no additional safeguards are introduced, and make it harder for refugees to have their asylum claims properly heard in Europe.
In addition to the Asylum Procedures Directive, individual member states such as Italy, Spain, the Netherlands, and the UK have introduced increasingly restrictive measures. These measures at the national level variously include increased use of immigration detention, falling recognition rates for refugees, the withdrawal of social benefits from asylum seekers, and the lack of effective opportunities to challenge detention and deportation, resulting in increased risk of refoulement (the return of persons in need of human rights or refugee protection to places where they are at risk of being persecuted, or subjected to torture and ill-treatment).5
A second dimension of EU policy seeks to externalize migration and asylum policy by focusing on regions of origin and transit countries as more appropriate places to host, detain, and process refugees, migrants, and asylum seekers.6
Since the mid-1980s, policy makers in Europe have been intrigued by the idea of externalizing or internationalizing the hosting of asylum seekers and migrants attempting to reach, or already on, the territory of the EU. The external dimension of EU asylum and migration policy currently has a number of components, including:
The external dimension emphasizes development as a mechanism for increasing the ability of regions of origin to secure their borders against irregular migration, but also to host refugees from the regiontermed capacity buildingand utilizes political and aid conditionality as a means of securing the cooperation of countries outside the EU.
Some elements, such as the proposal that common EU policy should include a refugee resettlement program to admit UNHCR-recognized refugees to the EU from their regions of origin, are relatively uncontroversial.7
Others are less clear cut. The Justice and Home Affairs Council in October 2005 hailed the EUs first step in improving access to protection needs and durable solutions for those in need of international protection, as quickly and as close to their home as possible. The object of this praise was the European Commissions September communication on Regional Protection Programmes (RPPs).8 In and of itself the RPP idea appears to have a number of positive elements; the RPPs goals of strengthening the protection capacity and improving access to durable solutions in the target countries are laudable.
The RPPs concept raises concerns, however, that the EU will use the existence of such programs as a pretext to declare the target countries safe third countries. The EU could then return asylum seekers and migrants who transited through these countries even though effective protection could not be guaranteed.
It is critical that the mere existence of RPPs is not used to justify the return of migrants and asylum seekers to countries like Ukraine in the absence of adequate capacity to process and host those groups, or to undermine the right to seek asylum in the European Union. UNHCR, in welcoming the RPP proposal, stressed the need for guarantees that RPPs would be complementary to existing asylum provisions in EU states.9
Scepticism regarding the RPP concept can be traced to its forebear, the Regional Protection Area, or RPA, concept, touted in a February 2003 UK Cabinet Office and Home Office policy paper, called A New Vision for Refugees.10 Under the New Vision proposal, RPAs were to be established both to achieve improved protection in regions close to the origin of refugee flows, but also to contain those flows by returning spontaneous arrivals from the EU to the RPAs and by establishing managed refugee resettlement programs from the RPAs to the EU as an alternative to irregular movement by asylum seekers to the EU. Following vigorous protests from civil society and other member states, inc luding Germany and France, the UK withdrew its proposal prior to the June 2003 European Council meeting in Thessaloniki. Nevertheless, it is not difficult to imagine individual states, or the EU as a whole, seeking to rely on the existence of a Regional Protection Programme to justify the establishment of a similar protection area in the future.
Human Rights Watch is also concerned about the implications of the EUs goal (as the Commission communication on RPPs states) of addressing asylum needs as close to home as possible.11 As discussed below, countries that the EU is cultivating to offer protection in the region may not be up to the task, with the result that this aspect of the externalization of EU migration and asylum policy threatens to cut off access to meaningful international protection for many who require it. European Commission plans for protection in the region based on improved protection in current countries of transit appear also to be based partly on the proposition that, even before such improvements take place, intercontinental movements are seldom necessary for protection reasons alone.12Human Rights Watch researchin Libya and Ukraine (the two case studies in this paper), and elsewheresuggests this assumption is false.
The EU has begun to implement elements of almost all of the externalization measures listed above. Meanwhile some individual EU states have already stepped well beyond common EU policy in some of the areas listed. At least two EU states, Italy and Spain, have engaged in exclusionary practices that conflict with international law. These and other EU states have also implemented returns with scant regard for whether the receiving countries could offer effective protection.
By bilateral arrangement with Libya, Italy in late 2004 and again in 2005 expelledwithout a proper assessment of their asylum claims or access to fair asylum procedurespeople who arrived from North Africa and were being held on the Italian island of Lampedusa under Italys mandatory detention policy for undocumented migrants and asylum seekers. (The Italian government elected in April 2006 said in May that it will not expel individuals to countries that have not signed the Refugee Convention, including Libya.)
In early October 2005, faced with mass attempts by undocumented migrants to force entry into Spains North African enclaves of Ceuta and Melilla, the Spanish government expelled back to Morocco at least seventy-three people who had reached the enclaves, including several who had sought to claim asylum. The expulsions were reportedly carried out without an individual assessment that would have enabled presentation of asylum claims. Eleven migrants were killed and scores wounded in and around the enclaves during the crisis. There were reports of excessive use of force by Spanish and Moroccan border guards in and around the enclaves, and allegations that some migrants were abandoned in the desert by the Moroccan authorities.13
The European Commission dispatched a fact-finding mission to Spain and Morocco in the wake of the crisis, but its mandate was limited to assessing the scale of illegal migration from Africa via Morocco to the EU, immigration channels from Morocco to the EU, and ideas from Moroccan and Spanish authorities about measures to intensify cooperation between the EU and Morocco in preventing and combating illegal migration. As the Commissions report on its investigation states: The technical mission did not seek to investigate the recent tragic incidents in Ceuta and Melilla nor did it aim to assess the ways that border management is carried out by Morocco or Spain.14 While a focus on irregular migration is perfectly legitimate, it must be coupled by consideration of the human rights dimension of migration.
1 Convention relating to the Status of Refugees, 189 U.N.T.S. 150, adopted July 28, 1951, entered into force April 22, 1954.
2 European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR), European Treaty System No. 005, Rome, November 4, 1950.
3 The European Parliaments proposed amendments to the Asylum Procedures Directive were not binding on the Council.
4 Letter from Human Rights Watch and others to Antonio Vitorino, Member of the European Commission, Call for withdrawal of the Asylum Procedures Directive, March 22, 2004, http://hrw.org/english/docs/2004/03/22/eu-letter032204.pdf#search=%22Vitorino%22..
5 See Human Rights Watch, Spain, Discretion Without Bounds: The Arbitrary Application of Spanish Immigration Law,, vol. 14, no. 6(D), July 2002, http://www.hrw.org/reports/2002/spain2/; Spain, The Other Face Of The Canary Islands: Rights Violations Against Migrants and Asylum Seekers, vol. 14, no. 1(D), February 2002, http://hrw.org/reports/2002/spain/; Nowhere To Turn: State Abuses of Unaccompanied Migrant Children by Spain and Morocco, vol. 14, no. 4(D), May 2002, http://www.hrw.org/reports/2002/spain-morocco/; The Netherlands, Fleeting Refuge: The Triumph of Efficiency over Protection in Dutch Asylum Policy, vol. 14, no. 3(D), April 2003, http://www.hrw.org/reports/2003/netherlands0403/.
6 These dimensions are set out fully in the Hague Programme, a comprehensive EU plan addressing cooperation among EU states on a range of internal matters including migration, counterterrorism, criminal and judicial cooperation, and human rights. The Hague Programme: Strengthening Freedom, Security And Justice In The European Union, Annex I to The Presidency Conclusions of the Brussels European Council (4/5 November 2004), Council of the European Union, Concl 3, 14292/04, Brussels, November 5, 2004, p. 21.
7 Communication from the Commission to the Council and the European Parliament, Towards more accessible, equitable and managed asylum systems, COM(2003) 315, Brussels, June 3, 2003.
8 Communication from the Commission to the Council and the European Parliament on Regional Protection Programmes (doc. 11989/05 ASILE 14 RELEX 438), September 1, 2005, and Draft Council Conclusions on the Communication from the Commission on regional protection programmes (doc 12593/05 ASILE 18 RELEX 471), September 26, 2005. See also European Commission website, dedicated page on Regional Protection Programmes, at http://europa.eu.int/scadplus/leg/en/lvb/l33222.htm. The communication stated that RPPs are to be piloted in the Western New Independent States (Ukraine, Moldova and Belarus) and Tanzania.
9 UNHCR has welcomed the RPP proposal but emphasized It is important that these measures do not prevent asylum seekers from entering the EU, and still provide full access for them, Stefania Bianchi, EU Plans to keep asylum seekers at bay, IPS, September 29, 2005, http://www.ipsterraviva.net/Europe/article.aspx?id=2395 (accessed October 14, 2005).
10 Gregor Noll, Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones, European Journal of Migration and Law 5: 303-341 (2003).
11 Council conclusions on regional protection programmes, adopted October 12, 2005, Bulletin EU 10-2005, Area of freedom, security and justice (9/24), http://europa.eu/bulletin/en/200510/p104009.htm (accessed August 8, 2006).
12 Draft resolution on manifestly unfounded applications for asylum, Ad Hoc Group Migration for the UK Presidency of the Council of the European Communities, Brussels, July 1, 1992, cited in Edward Mortimer, Behind closed doors Governments are conspiring to restrict the right to political asylum in the EC, Financial Times (London), October 28, 1992.
13 For further details see Spain: Deportations to Morocco Put Migrants at Risk - Violence against Migrants in Ceuta and Melilla Requires Independent Investigation, Human Rights Watch news release, http://hrw.org/english/docs/2005/10/13/spain11866.htm.
14 European Commission, Visit to Ceuta and Melilla Mission Report Technical mission to Morocco on illegal immigration, 7th October 11th October 2005, October 19, 2006, http://europa.eu.int/rapid/pressReleasesAction.do?reference=MEMO/05/380&format=HTML&aged=0&language=EN&guiLanguage=en