Refugees, Asylum Seekers, and Internally Displaced Persons
50 Years On: What Future for International Refugee Protection?
Industrialized States: The Beginning and the End of Refugee Protection?
The Global Picture
Attacks on Humanitarian Workers Threaten Refugee Protection
Protecting Refugee Women and Children
Protracted Refugee Crises: The Right to Return
The Challenge of the New Millennium: Protecting the Internally Displaced
The Way Forward
Relevant Human Rights Watch reports
Nowhere was the retraction in protection more pronounced than in the industrialized countries of Western Europe, North America, and Australia--the very countries responsible for establishing the international refugee regime. Western European countries made particularly vigorous and visible efforts to control inflows of asylum seekers and perceived abuse of the asylum system. The pursuit of a zero immigration policy throughout Western Europe since the 1970s, and the closure of almost all alternative legal channels of immigration, coupled with the global trends described above, led to a marked increase in the number of people applying for asylum in Western European countries between 1985 (157,280 applicants) and 1992 (673,947 applicants). Governments perceived that the asylum system was being abused by individuals who were leaving their countries for economic reasons rather than in pursuit of international protection. Racist violence rose in many countries, fueled by the anti-immigration rhetoric of politicians and the media, creating a hostile environment for refugees and migrants throughout the region.
Harmonization of European Asylum Policy
During the 1990s, European Union (E.U.) countries sought to harmonize their immigration and asylum policies. This process started in the early 1990s with various non-binding resolutions adopted by member states of the then European Community on different aspects of asylum policy. Two important treaties, the Schengen Agreement on common border controls, and the Dublin Convention establishing arrangements for identifying state responsibility for assessing asylum applications came into effect in 1997 and 1994, respectively.
The 1997 Treaty of Amsterdam, effective from May 1999, further advanced harmonization, as states determined common criteria for dealing with asylum applicants, reception of asylum seekers, family reunification, and deportation policies. A disturbing protocol to the treaty restricted the right of E.U. citizens to seek asylum in another E.U. state.
In an effort to proceed from the agenda established in the Amsterdam Treaty, in October 1999 a "Special Meeting of the European Council on the Establishment of an Area of Freedom, Security and Justice" was held in Tampere, Finland. The Presidency Conclusions of the Tampere European Council were generally viewed as a positive development by advocacy groups as they included a a reaffirmation of the right to seek asylum, and a commitment to work towards the establishment of a common European asylum system based on the full and inclusive application of the 1951 convention and to harmonize European asylum policies with "guarantees to those who seek protection in or access to the European Union." Less positive, however, was the continuing emphasis on common policies to contain and control asylum and migration movements.
In December 1998, the E.U. High Level Working Group on Asylum and Migration was set up to produce Action Plans on the root causes of migration in six major refugee and migrant producing countries. The Action Plans focused on integrated strategies to control migration outflows both from the regions of origin and into E.U. countries.
In July 2000, the French government, then holding the E.U. presidency, issued an "action plan to improve the control of immigration." Similar to other such E.U. initiatives, the French proposed an information exchange, early warning, and response system to coordinate E.U. member states' response to "waves" of immigration, characterized as a "fire-brigade policing" approach. In addition, they proposed establishing a network of E.U. immigration liaison officers in principal migration source countries to help control migration flows.
Access to Asylum Barred
Central to the right to seek asylum is the principle of freedom of movement and the right of an individual to leave any country, including their own. Yet European asylum policy systematically obstructed these rights during the 1990s. Most explicit was the introduction of visa requirements for nationals of common refugee producing countries, including those with well-documented human rights problems, such as China, Burma, Sudan, the Democratic Republic of Congo, Sierra Leone, Turkmenistan, and Rwanda. Beginning with a September 1995 Regulation, the E.U. maintained a common list of countries whose nationals were required to obtain visas before entering the territory of any E.U. state. The October 1999 Presidency Conclusions of the Tampere European Council, and a draft 2000 European Commission (E.C.) Regulation on a common visa regime, also contributed to a standardization of visa imposition across the European Union. As no would-be refugee was likely to be able to obtain a visa to come to a Western European country, this effectively forced asylum seekers either to travel on false or forged documents, or with no documentation.
At the same time, E.U. countries introduced legislation that penalized asylum seekers who traveled on forged or false documents and the companies that transported them. Carriers' liability legislation, resulting in heavy fines for airlines and shipping companies that transported undocumented or incorrectly documented migrants, became a requirement under the Schengen Agreement on border controls. Private travel companies were effectively made responsible for front-line immigration controls and they began to take proactive measures to avoid the fines, including rigorous pre-departure immigration checks by airline staff.
The E.U. adopted a new policy on border control in October 1996, establishing "airline liaison officers." By July 2000, the U.K., Danish, German, and Dutch governments were all using immigration officers in their embassies and consulates in main refugee-generating countries to assist airline staff in checking the authenticity of travel documents. In a July 2000 report, UNHCR criticized efforts to intercept potential asylum seekers at the point of departure without a substantive review of their asylum claim as an obstruction of the right to seek asylum which could amount to constructive refoulement if individuals were thereby prevented from leaving countries where their lives and freedom were threatened.
Those asylum seekers who did manage to evade pre-departure border controls and reach their country of destination faced punitive measures on arrival. Increasingly, asylum seekers who arrived in E.U. countries with false, forged, or no documents were immediately detained--ostensibly for short periods to allow the authorities to verify their identity, but in practice often for weeks or months. Illegal entry also impacted negatively on refugee status determination procedures. Asylum seekers who entered illegally were often given fast-track assessments, or considered as "manifestly unfounded" cases, and their means of entry contributed to negative assessments of credibility.
Article 31 of the 1951 convention explicitly exempted refugees who come directly from the territory where they fear persecution from punishment for illegal entry, provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence. Long before the virtual cordon sanitaire was created around Western Europe, the drafters of the 1951 convention recognized that many refugees must leave their countries under extreme circumstances and have little opportunity to obtain legal travel documents or permission to enter their country of asylum.
Containment in the Region
E.U. and other states also sought increasingly to contain refugee movements within their region of origin. This began in January 1998 with the E.U.'s "Action Plan on the Influx of Migrants from Iraq and the Neighboring Region," a panicked response to fears of a possible "mass influx" of Turkish and Iraqi Kurds into Western Europe. The proposal set the tone for Action Plans on Somalia, Afghanistan, Morocco, Iraq, and Sri Lanka prepared by the E.U. High Level Working Group on Asylum and Migration. These dealt cursorily with preventive measures such as conflict resolution, development, and poverty reduction in refugees' countries of origin, but focused primarily on exporting migration controls, such as airport liaison officers, anti-immigration information campaigns, and readmission arrangements to the source countries. While welcoming the comprehensive approach to migration that addressed root causes as well as migration policies, advocacy groups criticized the action plans for failing effectively to address human rights violations in countries of origin and the need for refugee protection for those who fled such violations. Like the first Iraq action plan, the overriding aim of the High Level Working Group action plans appeared to be containing migration in the region and preventing flows of asylum seekers and migrants to E.U. countries.
1951 Refugee Convention Under Threat
Western European governments sought to dilute their obligations under the 1951 convention and its 1967 protocol, despite reaffirming the centrality of these treaties in both the 1997 Amsterdam Treaty and the 1999 Presidency Conclusions of the Tampere European Council. In particular, they applied the refugee definition in an overly restrictive way, not intended by the drafters of the convention, thereby excluding many people at risk of persecution from international refugee protection. Those excluded included people who fled persecution by non-state agents, such as the Taliban in Afghanistan, or situations of generalized violence and civil conflict, as in Colombia. Governments also insisted that asylum seekers demonstrate actual persecution, not just a credible fear of future persecution. Advocacy groups, such as the non-governmental European Council on Refugees and Exiles, argued that these narrow interpretations were inconsistent with international refugee law.
E.U. states also introduced various alternative, or complementary, protection regimes as substitutes for 1951 convention protection. Under most of these regimes, states granted asylum seekers temporary leave to remain on humanitarian grounds, but did not extend to them the full rights and protection of 1951 convention refugee status. These alternative regimes were often highly discretionary with no consistency between E.U. states regarding the length of stay allowed or the rights afforded to the individual. Moreover, temporary protection--which was initially intended to deal with mass influx emergencies where states were unable to conduct individual refugee status determination--was increasingly applied as a subsidiary form of refugee protection.
Taken together, the overly restrictive application of the 1951 convention and the increasing use of alternative, subsidiary forms of protection resulted in states narrowing their obligations under the 1951 convention, the denial of meaningful protection for those in need, and serious erosion of the international refugee protection regime. Added to this, between 1998 and 2000 various E.U. governments proposed drastic revisions to the 1951 convention in order to make it more "relevant" to contemporary migration challenges. The Austrian government, while holding the E.U. presidency, first proposed this in a July 1998 strategy paper that depicted the 1951 convention as a product of the Cold War period that had never been intended to deal with contemporary large-scale refugee movements caused by civil war, inter-ethnic violence, and persecution by non-state agents. The Austrians proposed a comprehensive, integrated approach to migration that addressed trade and development, as well as migration policy. This proposal, particularly its reference to the need to amend the 1951 convention, was considered too radical by most E.U. states at the time.
British Home Secretary Jack Straw reopened the issue in June 2000, at a conference organized by the Portuguese E.U. presidency on a common European asylum system, launching a vigorous attack on the relevance and efficacy of the 1951 convention. He claimed that the European asylum system was massively abused by economic migrants who had no credible asylum claim and who were brought to Europe by highly organized criminal trafficking or smuggling syndicates. He characterized the 1951 convention as inadequate and never intended to deal with contemporary "massive intercontinental migratory movement."
He proposed a new approach to refugee protection whereby E.U. states would designate those countries and ethnic groups most at risk of persecution, agree on quotas of asylum seekers from these countries, and determine asylum claims within regions of origin. He also proposed a list of "safe countries" which would include "all E.U. states, the U.S., Canada, Australia and many others" (our emphasis) from which applications for asylum would not be considered. A third group would include "the accession states and others" where there would be a general presumption of safety and asylum claims would be considered under an accelerated process.
The British proposal was a worrying return to the notion of "safe countries of origin" and highlighted yet again the lack of commitment amongst European governments to upholding the right of all individuals to leave their countries and seek asylum.
Australia: Xenophobia and Threats to Asylum
Australia also increasingly pursued a punitive asylum policy and showed little regard for either abiding or being judged by international human rights standards. Despite only receiving a tiny proportion of the world's refugees--9,450 asylum applicants in 1999, compared with 95,110 applicants in Germany--Australia reacted with disproportionate zeal to a perceived threat of being overwhelmed by "floods" of foreigners brought in through illegal people trafficking and smuggling.
Australia pursued a draconian policy of mandatory detention for all asylum seekers and other non-citizens who arrived though "illegal" channels with forged, illegal, or no documents, and who declared themselves as asylum seekers on arrival. In July 2000, the U.N. Human Rights Committee criticized Australia for its mandatory detention policies and for not informing, nor allowing , NGOs access to inform detainees of their right to seek legal advice. Asylum seekers were kept in remote detention centers thousands of miles away from major population centers.
In October 1999, Australia made amendments to its 1958 Migration Act that, according to UNHCR, seriously undermined refugee protection. Refugees arriving in an unauthorized manner were refused family reunification rights for a minimum of thirty months after they received refugee status and were not provided with travel documents in violation of article 31 of the 1951 convention; article 28 of the 1951 convention, which provides for travel documents for refugees that permit re-entry; and fundamental principles of family unity upheld in the 1951 convention, in UNHCR Executive Committee Conclusions, and in other international human rights instruments.
On August 29, 2000, the Australian government stated that it would restrict future cooperation with U.N. bodies and in particular reject treaty bodies' requests to delay the deportation of unsuccessful asylum seekers. This followed two high profile interventions by the U.N. Committee against Torture seeking a delay in the return of asylum seekers until it had considered their claims that they would face torture in the countries they had fled. The government also announced that it would undertake a comprehensive review of the interpretation and implementation of the 1951 convention and consider the need for remedial legislation.
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