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Human Rights Watch World Report 1998


Human Rights Developments

The trend toward increased restrictions on the right to asylum in European Union (E.U.) member states continued in 1997. After several years of steady decline, the number of asylum applications stabilized and even grew in some states. Meanwhile, the percentage of asylum seekers recognized as refugees under the 1951 Convention relating to the Status of Refugees (refugee convention) remained low, as many E.U. member states implemented new restrictions on the rights of asylum seekers and refugees.

In most E.U. member states, asylum seekers were given only limited access to asylum procedures once their asylum claims were deemed either "manifestly unfounded" or the responsibility of a "safe third country," defined as any country where the asylum seeker would be admitted and protected against persecution or refoulement. Inspired by resolutions adopted by E.U. member states in 1992, these policies gave immigration officials substantial discretion to deny asylum after little or no substantive review of the asylum claim. Moreover, the right to appeal a negative decision was in many such cases rendered meaningless because the asylum seeker had no right to remain in the country while the appeal was pending.

"Safe third country" rules posed an especially acute problem, subjecting many asylum seekers to a chain of deportations from one country to another. Even the most cautious E.U. states can be complicit in chain deportations when they deport an asylum seeker to a "safe third country," which may then deport him or her to yet another country, safe or not, without any prior review of the merits of the asylum claim. The risk of chain deportations grew in 1997 as E.U. member states negotiated an ever-widening web of readmission agreements, committing their eastern and southern neighbors to readmit illegal aliens, without any specific provisions for the protection of asylum seekers and refugees.

Several E.U. member states continued to apply an unduly strict interpretation of the refugee convention, especially as it related to persecution by non-state actors. Of particular concern was jurisprudence concluding that an asylum seeker may only acquire refugee status if he can show that his government's authorities are complicit in the feared persecution. Some states gave temporary protection or residence permits on humanitarian grounds to asylum seekers who fell afoul of this restrictive interpretation of the refugee convention. In France, for example, many Algerians fleeing persecution by Islamist groups received temporary residence permits in lieu of refugee status. These permits, however, were valid only for renewable three- or six-month periods and often provided no right to work. Such policies reflected a growing inclination to substitute limited, temporary solutions for the traditionally more complete and durable protection mandated by the refugee convention.

The inadequacy of temporary protection was illustrated by the hundreds of thousands of Bosnians who remained in E.U. member states for more than five years after having fled hostilities in the former Yugoslavia. Ongoing human rights abuses in Bosnia prevented most refugees from returning home (see section on Bosnia-Hercegovina). The United Nations High Commissioner for Refugees reported that 28,000 voluntarily returned in the first quarter of 1997. A total of 200,000returns were expected by year's end, leaving another 600,000 still displaced outside of Bosnia. Despite repeated threats from host states, forced repatriations were limited in 1997; Germany, for example, forcibly repatriated approximately 650 Bosnian refugees in the twelve months previous to this writing. Some E.U. member states gave up on repatriation altogether and gave Bosnians permanent residence permits.

Detention of asylum seekers was widespread in E.U. member states in 1997. Detention of rejected asylum seekers and illegal aliens awaiting deportation was particularly prevalent. Because of difficulties many member states experienced in enforcing deportation orders, many foreigners languished in European detention centers for months. Too often they were held intermingled with common criminals or under a remand regime inappropriate to their status as administrative detainees.

The Role of the

International Community

Many of the asylum policies pursued by E.U. member states in 1997 were inspired by resolutions, recommendations, and joint decisions adopted at the E.U. level in recent years. The E.U. effort to harmonize asylum policies continued in 1997 and the restrictive trend showed little sign of abating.

The most significant development at the E.U. level was the October 2, 1997, signing of the Amsterdam Treaty, revising the 1992 Maastricht Treaty that established the E.U.. According to the new treaty, the E.U. will adopt key asylum and immigration measures within five years of the treaty's entry into force, expected in 1999. The agenda includes establishing criteria for determining which state will have responsibility for an asylum application; defining the scope of refugee, humanitarian, and temporary protection; and identifying minimum standards for asylum procedures and reception conditions. Because measures must be adopted unanimously, advocates for refugees and asylum seekers fear that this new initiative will only result in further codification of the lowest common denominator of member states' policies and practices.

In a widely criticized move, E.U. member states adopted a Spain-sponsored protocol to the Amsterdam Treaty. The protocol asserts that, with some narrow exceptions, member states will not accept asylum applications from nationals of other member states. Recognizing that this rule would violate their obligations under the refugee convention, officials from several member states asserted that they would continue to accept all asylum applications. However, only Belgium appended a declaration to the protocol making explicit its commitment, in accordance with the refugee convention, to carry out an individual examination of all asylum claims submitted by member state nationals.

In a significant development for E.U. "safe third country" policies, the Dublin convention came into effect on September 1, 1997. The convention establishes rules and procedures for determining one and only one member state that will be responsible for adjudicating each asylum claim. It replaced the similar asylum-related provisions of the Schengen agreement, which had been in effect among a subset of E.U. member states for nearly three years. The Dublin convention represents an improvement in that it provides an institutional framework for ensuring that asylum seekers sent from one E.U. member state to another will actually be admitted to the asylum procedure in the receiving state. On the other hand, nothing in the agreement prevents the receiving state from concluding in the course of its asylum procedure that the asylum seeker should be sent to a "safe third country" outside the E.U. Moreover, a 1992 E.U. resolution commits member states to look outside the E.U. for a responsible "safe third country," before considering a potentially responsible E.U. member state under the Dublin rules. The Dublin convention also risks dividing families whiletheir asylum claims are pending, sending, for example, a woman to one member state and her father, husband, and children to another. Faced with similar problems under the Schengen agreement, in 1997 signatories of that agreement adopted guidelines to keep families together during the procedure. These guidelines limit the definition of family to spouses and dependent children, however, and fail therefore to meet the needs of, for example, aged parents.

In another important E.U. development, the European Commission submitted a draft joint action on temporary protection of asylum seekers to the Council of Ministers and the European Parliament. The commission's proposal would give beneficiaries of temporary protection a high level of social rights. On the other hand, it also called for the suspension of refugee determination proceedings for up to five years of temporary protection, sparking criticism that temporary protection was being designed to supplant rather than complement refugee protection under the refugee convention. At this writing, the temporary protection proposal was still under debate in the Council of Ministers and parliament.

E.U. member states also moved toward a common policy on treatment of unaccompanied foreign children present in their territories. A non-binding resolution adopted in May 1997 established guidelines for special accommodation and procedural arrangements for minor asylum seekers. The resolution provided further that unaccompanied children with no legal right to remain in an E.U. member state, should not, in principle, be deported unless there will be adequate reception and care available upon the child's arrival in the receiving country.

In another non-binding resolution, the E.U. committed to an annual review of implementation of its policies in the asylum field. The resolution foresees contributions from UNHCR and nongovernmental organizations, promising an opportunity for those groups to point out problems encountered with restrictive asylum policies adopted in recent years. Many of these problems were also cited in a critical resolution adopted by the Parliamentary Assembly of the Council of Europe in April 1997.

Relevant Human Rights Watch reports:

France: Toward a Just and Humane Asylum Policy, 10/97

Uncertain Refugee: International Failures to Protect Refugees, 4/97

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