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The
Europeanisation
of
Europe s
Asylum
Policy
ELSPETH GUILD*
Abstract
This paper examines how the refugee
protection
obligations
of European
countries have
been affected by increasing integration and enlargement of
the
European Union. The
creation
of
an EU
area without internal border controls for
the
movement of persons has
had a
profound
effect on the
way
in
which countries
in
the
European area interpret
their
protection obligations. On the one hand, there has been an attempt by
EU
Member
States
to
justify
an interpretation
of
protection
obligations which permits
a
pooling
of
responsibility for asylum seekers and refugees among a number of states
(often
to
the
detriment of their
neighbours),
on
the
other, there has been an increasing
judicialisation
of protection
duties at the
supra-national level
through the
European Court
of Human
Rights
which has pushed in the direction of a collectivisation of
responsibility.
An
impor-
tant
tension
is evolving regarding the extent
of
protection
obligations which
is
being
played out on the body of the
refugee:
when
is
she within the
jurisdiction
and when
is
she not?
1 Introduction
There
are now 25 Member States
of
the
European Union
all
of
which
are
parties to the UN Convention relating to the
status
of refugees 1951
and its
1967
protocol (the Geneva Convention).
Indeed,
ratification of
the Geneva
Convention is a requirement of all states
seeking to
join the
Union. Some
of
the
EU
25 are
also
among
the
founding
states
of
the
Geneva
Convention and their diplomats
were central
to the
drafting
of
the
document.
1
From
this
expression
of
very
substantial
commitment
to
the
international instrument, many
consider
that
there has been a resiling
over the past
two
decades
among
the
original Member
States
of
the
Union from their commitment to provide protection on their territory
for
persons
fleeing
persecution and
a contamination of the new Member
States
with the spirit
of
rejection.
2
Is
this so? If
yes,
how did this
come
to
be and
to
what
extent
is
it the result
of EU policies?
The UN High
Commissioner for Refugees in his
World
Refugee Day
message,
2005,
stated
Unfortunately,
however,
finding safety in
today s
world
is
becoming increasingly
difficult.
While developing countries
least
Professor,
Radboud University
of
Nijmegen,
Netherlands;
Partner, Kingsley
Napley,
London
S.
Kneebone,
The Rfugee Convention 5
re rs On:
Globalisation
and
InternationalLaw,
Ashgate, 2003.
2 D. Boutillet-Paquet,
L Europe et
l droit
d Asile,
L Harmattan,
Paris 2001.
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The Europeanisation
o
Europe s
Asylum
Policy
631
able to
afford it
host
most
of
the world s
refugees,
many industrialised
nations
continue
to impose
ever stricter
controls on
asylum. All
of
us bear
a
responsibility
for ensuring
that
those
genuinely
in
need
of
international
protection
receive it .
This
rebuke
is
undoubtedly directed
towards
the
European
Union
among
others.
According
to
the UNHCR,
Overview
of
Asylum
Applications
Lodged
in Europe
and Non-European Industrial-
ized Countries
in 2004 ,
asylum application
levels in
the EU 25
have
decreased
by
19
per
cent in
2004 in comparison
with
2003.
There
are
now less
than
320,000
applicants
per
year.
Since
the
peak
in 2001 in the
EU there
has been
a
drop
over
36
per cent.
In comparison with the
much higher peak
of
1992
when there
were
700,000
applicants
in
the
EU
15
the current
levels in the
enlarged
European
Union ought to be
a
matter of
concern
is
the
Union
actually
shouldering
its
responsibilities
to the
international community
to provide
protection
to
refugees in
num-
ber commensurate
with its
wealth and
size?
The answer
is clearly
no .
On
1
July 2005, UNHCR
held an
emergency
meeting
in
Geneva
seek-
ing
resettlement
countries
for Uzbek
refugees
being expelled
from
Kyrgyzstan.
In the
face
of
overwhelming
evidence
of a
humanitarian
disaster
unfolding,
the only
European
state
which offered
resettlement
to these
refugees
was Romania,
a
state not
yet within
the
EU
(it
will
join on
1 January 2007)
and
with
among the
lowest
GDP levels of all
the
candidate
Member States.
UNHCR
publicly expressed
its
gratitude
to
Romania on 28
July. None
of the EU 25
all richer
and
better
placed
through
their
common
solidarity
arrangements
such
as
the
European
Refugee
Fund, offered
places to
these persons
in desperate
need
of
refuge. It
is difficult not
to
be shocked
by the
current situation.
This article will seek
to explain
the
increasingly
strident position
of
the
EU
regarding
the
protection
of refugees
on its
common
territory
through
the examination
of
how that
common
territory has come
into existence.
By looking
at
the
processes
of
de-territorialisation
of
sovereignty
in the
EU, the process of de-territorialising
protection obligations
may
also be
revealed.
When
geographical
territory is
no
longer
the
object of sovereign
responsibilities
there is space
for an opportunistic
exclusion
of protection
responsibilities
which
are
tied to sovereignty.
2
What
is the EU?
According
to
its treaties, the EU has
only
two tasks
establishing
a com-
mon market
and
an economic
and monetary
union.
In
order to achieve
these tasks the
EU activities
include an internal
market
characterised by
the abolition,
as between
Member States,
of obstacles to
the
free
move-
ment of goods,
persons,
services
and
capital .
Thus
at
the
heart of the EU
there
is and has
always
been an ambition
and
duty
to reconfigure
the
territory of the
Member States
in order
to
achieve economic
aims.
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632
Elspeth
Guild
The
concepts
of a
common
market and
EMU presuppose
that
states
relinquish sovereignty
over
their
geographic
territory
in order to achieve
these
ends.
3
Human
rights were
not
part
of
the original schema
of
the EU.
The
first
glimmerings
of concern
about
human
rights
issues come
in the
1960s via
the European
Court
of Justice.
The first reference
by
that Court
to the
European
Convention
on
Human
Riqhts, the foremost
regional
human
rights instrument, came
only in
1974. It was
not
until 2002
that
a
case
before
the
European
Court
of Justice was
decided
on the basis
of the
ECHR
obligations
of the
Member
States and
as
part
of
EU law in favour
of an
interpretation of EU
law
which
would benefit
the
applicant.
5
The EU
legislator
did
not
get
around
to
including
an express
reference
to
human
rights in the
EU
treaties until the
preamble
to
the
Single
Euro-
pean Act
1986, which
mentions the European
Convention
on
Human
Rights.
The
Maastricht
Treaty
signed
in 1991,
but
only
ratified in 1993,
created
the Treaty
on European
Union
which for
the first
time referred,
in the
body
of the treaty,
to the
human rights obligations
of
the
Member
States
and
the
European
Convention
on
Human
Rights.
It required
the
newly
created
European
Union
to respect
fundamental rights,
inter alia as
guaranteed
by the
European Convention
on
Human
Rights.
1991 was
also the
year in which
the EU
Member
States
saw one
of the highest
ever
recorded
levels
of
applications
for asylum
within
their
territories
and
for
the first
time reference to
the
Geneva
Convention
was made
in an EU
treaty
the
Treaty on
European
Union
(created
by the
Maastricht
Treaty), which provided
that:
the
matters referred
to in
Article
K.
1
[including
asylum policy]
shall
be
dealt
with
in compliance
with the European
Convention
for
the
Protection
of
Human
Rights
and Fundamental
Freedoms
of 4
November
1950 and
the
Convention
relating
to the
Status of Refugees
of
28
July 1951 and having
regard
to
the
protection
afforded
by
Member
States
to persons
persecuted
on political
grounds.
I will
return
in the
next
sections
to these
treaties and
what they mean
for
asylum seekers
and
refugees and
the deterritorialisation
of protection
obligations.
6
The failure
to include
refugees as
a central
part of the
EU project
was
not simply
an
oversight
by
an economic entity
which was
focused on
P.
Craig,
The
Evolution
of
the Single
Market
in C.
Barnard
andJ.
Scott
(eds.),
The
Law
of
the
Sinkle
uropean
Market
Unpacking the
Premise
Hart,
Oxford
2002, 1-41.
4/73
Nold
[1974]
ECR
491.
See,
B.
de
Witte,
The
Part
and Future
Role
of
the
European
Court
ofJustice in the
Protection
of Human
Rights ,
in
P.
Alston t al (eds.),
EUHumanRights
OUP,
Oxford,
1999
859 98
5 60/00 Carpenter
[2002]
ECR 1-6279.
In general,
see,
C. Dias
Urbano
dc Sousa
and
Ph.
de
Bruycker
(eds.),
The
Emergence
of
a European
Asylum Policy
Bruylant,
Brussels,
2004.
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The Europeanisationof
Europe s
Asylum Policy 633
market
integration, it was a
positive
choice.
One of the four fundamental
freedoms
of
the EU
is
the free
movement
of
workers. This was
included
in
the original
EEC
Treaty
in 1957. The transitional period
to
achieve
this free
movement ended
in
1968.
While
there
was
pressure
to
include
refugees in the implementing
legislation
on free
movement of workers,
the
Member
States could
only agree a resolution (that
is non-binding)
on the
matter
where they
agreed
to treat favourably
where possible
requests
by
recognised
refugees to move
and
work in
other
Member
States.
7
This
is
very
different
from
the
directly applicable
right granted
to all
nationals of
the states
and
their family
members, including
third country
nationals, to move and
work anywhere
in the common
territory.
The only place
where
refugees were
actually
included in
the
personal
scope
of
an
EU
legislative
measure
before
1999
was
in
regula-
tion
1408/71
on
coordination of
social
security
systems
in
the Member
States.
Here there
is
an express
inclusion
of
refugees in the scope
and
the definition
of
refugee
is
that
in the Geneva Convention.
When the
right
of
refugees to benefit
from equal treatment in
social
security
guar-
anteed
by the
regulation
was
finally litigated
in 2001
the
European
Court
of
Justice declined
to
interpret
the regulation
in
favour
of
the
refugees,
stating
that
the
regulation
requires
the individual
to have
been
affiliated to
the social
security system of
more than one Member
State
in
order
to benefit.
8
As
refugees do
not
have
a right
of
free
movement they
are trapped in one Member
State
and
never have the
opportunity
to
become affiliated
to the social
security system of
more
than
one
Member
State.
This
is
perhaps, the
first
EU
example
of
apparent
inclusion of
refugees
into the rights system of
EU law but
their actual exclusion because
of the
territorial restrictions
on their movement which
have the
effect
of render-
ing
them
invisible in
law.
This
invisibility
will gradually
change as refu-
gees
become visible in EU
law;
they
are
the objects of increasing
efforts
to
render them
invisible
in
practice
by
ensuring they are
not
physically
present.
9
It
is not as
a result of oversight that the
EU
failed
to
embrace
refugees.
There was
even from the beginning of the EU project
an
antipathy
towards them which
resulted
in
their
exclusion from the
benefits
of
EU
free
movement
rights. This antipathy remains.
While
most other third
country
nationals who have been lawfully
resident in
a Member
State
for five years
acquired on 23 January
2006 the right to
move
and
reside
for work,
study or
other
purpose in any Member
State and an
EU
right
D.
Martin
and E.
Guild,
FreeMovement
of
Persons
in
the
uropean
Community,
Butterworths,
London,
1996, 235 and
following.
95 99
a alil
[2001]
ECR 1-7413.
G. NoU
and
J Vedsted-Hanesen,
Non-Communitarians: Refugees
and Asylum Policies
in
P.-Alston et al (eds.), n. 4 above,
359-410.
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634
Elspeth
Guild
to
security
of
residence,
refugees
are excluded.
10
While
the Commission
has
frequently
stated
that
it
will
be
introducing
a measure
to
give
free
movement
rights
to
refugees
it
has not
done
so
as
yet.
To
conclude
this first
section,
what
is
the
EU?
For
our
purposes,
it
constitutes
a territorial
integration
project
which
is hostile
to refugees.
3
The
Single
European
Act
and
Refugees
The
objective
of the Single
European
Act 1986
was
the
abolition
of
controls
at
intra-Member-State
borders.
This
objective
was to
be
achieved
for goods,
persons,
services
and
capital
by
1992.
Implacable
opposition
by the
British
Government
delayed
the
process
and,
indeed,
as
it became
apparent
that
this
opposition
would
not
abate
quickly,
in
1997 it
was
formalised
in
the Amsterdam
Treaty
that
permitted
the
UK
(and
Denmark
and
Ireland)
to
opt
out
of
the
system.1
The
blueprint,
on
the
basis
of
which
the Single
European
Act
was
designed,
was
the
Commission s
White
Paper
on
integration
of
1985.12
Here,
refugees
do figure
as a
small
item
in an
annex.
The
question
of
the
movement
of
refugees
and asylum
seekers
was
not, however,
addressed
in
the Act
itself.
This
was left
to the
Member
States.
1
3
It
may
be
said
that
this
was
a
critical
moment
for refugee
protection
in the
European
Union
and
that
the
failure
to integrate
refugees
into the
project
has
led directly
to the
current
hostility
of the
EU
towards
refugee
protection.
1
4
Had refu-
gees been
included
in
the project
as
persons
also
entitled
to
free
move-
ment
across
the Union,
their
position
would
have
been
assimilated
to
that
of
nationals
of the
Member
States
(and now
third
country nationals
who
are
long term
residents).
It
would
also
have
meant
that
the
attempt
by
the
Member
State justice
and interior
ministries
to
maintain
territorial
bor-
ders
among
themselves
for
the
purpose
of determining
to
which
of them
asylum
seekers
and refugees
belong
would
not have
taken place
(or at
least
not on
the grounds
on which
it
was
argued).
1
5
By
leaving
this
part of
the
population
out
of the
free
movement
equation,
the
EU
became
a
hostage
to
its own
failure
towards
refugees
as
these
became
the people
on the
basis
of whom
the
creation
of
substantial
coercive
flanking
lO
Art.
3 2) c)
and (d) Directive
2003/109.
1
For
a
full discussion
see
B.
Rosamond,
Theories
of
uropean Integration
Macmillan
Press,
Houndsmill,
2000.
12
H.
Staples,
The
Legal
Status
of
Third
Country
Nationals
Resident
in
the
uropean
Union
Kluwer
Law
International,
The
Hague, 1999,
271-7.
13
E. Guild
andJ.
Niessen,
The
Developing
Immigration
and
Asylum
Policy
of
he
uropean
Union
Kluwer
Law
International,
The
Hague,
1996.
14
A
good
example
is
the
refugee
qualification
directive,
see
J.
McAdam,
The
European
Union
Qualification
Directive:
The
Creation
of a Subsidiary
Protection
Regime ,
17
JRL
461
(2005).
15
R.
Byrne
et al
examine
the
consequences
of these
policies
in
the
Central
and
Eastern
European
region
pre-
I
May
2004
see, R. Byrne
et al New
Asylum
Countries?Migration
Control
andRefugee
Protection
in an Enlarged
uropean
Union
Kluwer Law
International,
The
Hague,
2002,
5-28.
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The Europeanisation
ofEurope s Asylum
Policy
635
measures
to
compensate
for the
loss
of
control
at the intra-Member-State
borders
was
based.
6
Refugees
became
the issue
with
which some
actors
at
the
national
level were
able to beat
those in
favour of
EU territorial
integration.
The
Single
European
Act provided
for
a
transitional
period,
ending
31 December
1992,
for the
abolition of all
controls among
the Member
States
on
the
movement
of
goods, persons,
services and
capital.
The
effect of
such
an abolition of
controls
was
to transform
the area of
geo-
graphic
sovereignty
among
the Member
States. Without
controls
at
the
intra
Member
State
borders,
it
is
no
longer
possible
to check
goods
or
capital
flows, nor
the
identity of
persons.
If a refugee
were
to
cross
such
an
uncontrolled border,
he or
she should
be entitled
to protection
in
accordance with
the
Geneva Convention
within the
territory
of
which-
ever
Member
State
he or
she
found him
or herself.
Notwithstanding
the
fact
that all
nationals
of the
Member
States had
a
right
to move
to
and
reside
in
(for
economic
purposes at that
time) any Member
State,
across
what
were to
be
uncontrolled
borders, and
that their
numbers
dwarfed
into
insignificance those
of refugees
in
the Member
States,
it was the
spectre of
the refugee
moving and
gaining
entitlements
to rights
which
cause interior
ministries
to
revolt.
8
This
is
not
self evident.
As
is appar-
ent,
in order
to achieve
the abolition of
border
controls
on goods,
the
EU
embarked
on
a
very
ambitious
programme
of
harmonisation
and
recog-
nition
of
manufacturing
standards
in
order to
deal with
legitimate
health,
safety,
environmental
and consumer
concerns.
In the field of
refugees,
though,
the
Member
States
already had,
in
the
form
of
the
Geneva Convention,
the
necessary common
law which
harmonises
the
treatment of
refugees.
9
It
is
in
this
context
that the
separation of the
concept
of
a refugee
as
a
person
certified
by state
authorities
from
an asylum
seeker
as a
person claiming
protection
but
not
yet certified became
central.
Determination
of asylum
claims
by
state
authorities
was
assimilated
to
the
certification
of
extra EU imported
goods,
a prerequisite
for
the goods
gaining
access
to
the internal
market
and free movement
within
the EU. Thus
the determination
of
refugee
status
by the Member
State
through
whose
territory
the
individual
like
a
tin of
beans) first
arrived
fitted
into
an internal
market logic
which
was
operating
strongly
with
the full support of
the Member
States. The
Member
States
pre- and
post-determination
refugees
needed
different
6 A. Nicol
QC
and
S. Harrison,
The Law
and
Practice
in
the Application
of
the
Dublin
Convention
in
the
UK ,
I
EJML
465
1999);
R.
Marx,
Adjusting the
Dublin Convention:
New Approaches to Member
State
Responsibilities
for Asylum Applications ,
3 EJML
7
(2001).
7 E. Guild,
The Single
Market, Movement of
Persons
and
Borders ,
in
C.
Barnard
andJ. Scott
(eds.),
The Law
ofthe Single uropean
Market
Unpacking
the Premise
Hart,
Oxford 2002,
131-49.
8
D. Bouteillet-Paquet,
n.
2 above.
9
J.-Y. Carlier and
D.Van
Heule (eds.),
urope
and
refugees:
A challenge?,
Kluwer
Law
International,
The
Hague, 1997.
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636
Elspeth
Guild
categorisations
that
is, asylum seekers v. refugees.
20
In the internal
market
logic, asylum
seekers should
be certified
on
arrival
like beans,
or warehoused
like
tins of
beans)
until
this is administratively
convenient.
It
is this
logic that takes us to the
next
step on the road to extraterritorial
processing
of
asylum
applications.
2
1
4.
The
Schengen Experiment
and the
Dublin Convention
These
flanking measures
for the abolition of
border controls found
expression
as
regards asylum seekers
in two treaties which
escaped the
EU until 1999.
These
are
the Schengen
Implementing Convention
1990
and the
Dublin
Convention
1990. Both
of these conventions
were
designed in response
to
the
abolition of
intra
Member
State border
con-
trols
and both
included
the objective of defining
intra Member
State
borders
for
the
purpose
of
allocating
responsibility
for
asylum
seekers.
2
2
The refugee section
of the Schengen Implementing Agreement
was
superseded by
the Dublin
Convention when it was
finally
ratified by all
the Member
States and came into
force in 1997 (the same
year as signa-
ture of
the Amsterdam Treaty
which
provided
for
its provisions
to
be
absorbed into
EU law). Among the
most telling
aspects of the
treatment
of asylum
seekers in
these
two
conventions
is that
they
are
the objects of
state
acts.
They
have
no effective
rights,
nor
is
either
instrument
designed
to give
voice
to their
protection.
23
They are
the passive
bodies
on
whom
is visited
the
will of the
Member States.
Both treaties
provide
for
three
principles
as
regards
asylum
applicants:
first that the Member
States are entitled
to pool their
responsibility
towards
them
as regards their
rejection.
Thus
if one
Member State con-
siders
the asylum application
of
an
individual and rejects
it, that
rejection
is valid for all the Member
States (notwithstanding
that the
recognition
of
refugee
status remained
and
remains nationally
limited).
Secondly,
it is
for the Member States
to determine
in which
of
their number an
asylum
seeker is
entitled
to
have
his
or her
application
for
asylum determined.
Thus
the fact
that
an individual might
have second degree family
links or
friends or job
prospects
in one Member State
but not in another and
thus
wishes
to apply for asylum
in that Member
State
is irrelevant
to the
2 H.
Meijers,
'Refugees
in Western Europe
Schengen affects the entire
Refugee
Law'
2 JRL
428 (1990).
2
S.
Lavenex, Safe Third
Countries Extending the EU
Asylum
and Immigration
Policies
to Central and
Eastern
Europe
CEU Press,
Budapest, 1999,
29-38
73-102.
22 j
van der
Klaauw,
The
Dublin
Convention The
Schengen
Asylum Chapterand
the
Treatment ofAsylum
Applications
Versalg
OSR-Studiedag, 31 Oct. 1996.
3 J
van
der
Klaauw,
Droit
d asile
et
processus
d harmonisation
dans l Union
europiene:
Schengen
via Dublin,
Maastricht
et au da , Cahiers du CEMRIC, Summer
1996,
No.
7.
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The
Europeanisation
of
Europe s
Asylum
Policy
637
allocation of
responsibility
among
the Member
States under
the
treaties.
Thirdly,
responsibility
for
determining
asylum
applications
and
responsi-
bility
for
the body that
goes
with
the
application
is
treated
in
both
treaties
as
a burden
and a
punishment
for
the
Member
State
which permitted
the
individual
to arrive
in
the
Union.
2 4
At the heart of
the
system
is
a
logic which,
in
fact, is
inimical
to the
internal
market.
Instead of
reinforcing
the
abolition of
border
controls
on
persons
among
the Member
States,
it
requires
their
retention
at
least for
one
group
of
persons
asylum
seekers
Thus
an
exception
to the
logic
of
territorial
integration
is created
out
of the
bodies
of
refugees.
25
As long as
this
logic
provides
the
organising
principle
for the
treatment of
refugees
two
pressures
will
arise:
first
the
ever
diminution
of
the
area
in which
the asylum seeker
is
entitled
to move
in order
not to
interfere
with
the
abolition of
intra Member
State
border
controls
on
persons.
Secondly,
there
is a
search
for
mechanisms
to
prevent
asylum
seekers
from entering
the
internal
market
(or removing
them
rapidly .26
This
will
lead
to
the
sophistication
of
the safe
third
country
and
safe country
of
origin
principles.
It
was expected
that
a careful
use
of visa
requirements
and
carrier
sanctions
would
result in
asylum seekers
arriving exclusively
by
land to
those states
on
the
outer
borders
of
the
EU
the
(relatively)
poorer
South.
2
7
The
fall
of
the
Berlin
Wall in
1989 came
too
late for
a
substan-
tial rethink
of the
principles
of the
two conventions,
but
left
Germany
in
the position of
being the
main
outer
Member
State
until the accession
of
the
10 new Member
States
in 2004.
The duty
to provide
protection
to
refugees
arriving,
even
irregularly,
on the
territory
of signatory
states of
the
Geneva
Convention
was
increas-
ingly
distorted
in its interpretation
by
the
EU Member
States to justify
measures
to
deflect
asylum seekers
to other
destinations,
to prevent
their
arrival
at the border
by
increasingly
unsavoury
means and
to move
them
outside the
border
if
any
other
host
state
could
be
found
on
which
to
place
responsibility.
28
At
the same
time
that
the
EU
was
struggling
towards
territorial integration
through
the abolition
of border
controls
on
movement
of
person
through
the
common
territory,
the
Member
States were
adopting
measures
and
practices
increasingly
territorially lim-
iting
to asylum
seekers
29
The
Member
States
were also demonstrating
4 E.
Guild, iovin the
Borders of
Europe, Inaugural
Lecture
University
of
Nijmegen,
2000.
5
j y Carlier, L accis
au territoire
es (candidat)
rifugij
au
regard
du droit
international
es
rffigiis
dans les
proets
d hannonisation,
Documentation
ifgi Supplement
No.
187,
20-29,
1992.
D.
Bigo,
Circuler,
refouler, enfermer
iloigner
Cultures
et Conflits, Harmattan.
Paris 1996,
3-7.
7
A.
Meloni,
Visa
Policy
within
the
European Union Structure
Springer,
Berlin 2006,
171
and
following.
8
G.
Noll, Visions
of
the
Exceptional:
Legal
and Theoretical
Issues Raised
by Transit
Processing
Centres
and
Protection
Zones 5
EJML
303 (2003).
9
D.
Bouteillet-Paquet,
Passing
the
Buck:
A Critical
Analysis
of the
Readmission
Policy
Imple-
mented
by the
European
Union and
Its
Member
States
5 EJML 359
(2003).
7/21/2019 Refugee Magazine International (18th Edition)
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638
Elspeth Guild
great
resistance to
the recognition
of
rights of asylum seekers.
30
All of the
measures
which were being adopted
were in
the direction
of removing
capacity
to act from asylum seekers
and
removing asylum
seekers from
the
view of
the
legal
systems.
The borders for
asylum seekers were not
only
physical
borders
in
respect
of
which
there
were
no controls
on
movement
of
persons
but
also legal
borders
which
increasingly
kept
them
on the wrong
side ofjurisdiction.
5. The
London
Resolutions 1992 and the
Maastricht
Treaty
In
1992
a year
before
the Maastricht Treaty
would
finally
limp
into
force the
justice
and
interior
ministers
of the Member
States
adopted
two resolutions and
conclusions
which would
set
the
agenda
for asylum
and
refugee
protection for
the
next
15
years.
3 1
All three measures
were
of
unclear
legal
status
not being
EU
law nor international treaties
nor
any
other obvious
form
of international agreement.
32
The
three
dealt
with
asylum
seekers and shared one
primary characteristic they were
designed
to
move asylum seekers out
of
the administrative
systems of
the
Member States without a consideration
of
the
application on
its
mer-
its. The first
resolution
defines
the
principle of
a
manifestly unfounded
application
for asylum.
There
are a
variety
of grounds
on
which
an
application can
be found manifestly unfounded most
importantly that
the individual
has passed through a safe
third
country
on the
way to
the
Member State.
The effect
of determining an
application
to be mani-
festly
unfounded
is
that
the
state
authorities are
not
obliged
to
provide
a
thorough
examination
of
the application
and appeal rights
may
be
trun-
cated.
The
safe
third country principle was
by
no
means
an invention of
the
EU.
33
However it provided a
way of thinking
about refugee protec-
tion which
fitted comfortably into the internal
market
logic of abolition
of
border controls.
If an analogy is made with
goods
the
tin of beans
which
arrives
at the
EU
external
border
is warehoused pending
certifica-
tion.
In
principle
this
could well be
within
a third country before admis-
sion to the EU territory. In the
case
of asylum
seekers even
recognition
as a
refugee will not enable their
admission
to
the
EU territory indeed
recognition
in
a third
country
justifies
exclusion from the
EU as
a
safe
haven
has
been found. Thus even
this most
cursory
examination
of
the
internal
market logic
as applied to asylum seekers
indicates
the
problem.
3 E.g.
see
the
negotiations
on
Directive
2003/9 on asylum
reception conditions.
3 L.
Drucke
Asylum
Poliy
in
a
European
ommuniy
without
Internal
Borders
CCME
Brussels
No.
9
1992.
3
E.
Guild andJ.
Niessen
n.
13
above.
S. Lavenex
Safe
Third
Countries
n.
21
above
29-42.
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The Europeanisation
of Europe s
Asylum
Policy
639
The
second resolution
creates a
common
definition
of a safe third
country,
that is to
say a
country
which is
not
the country
of
origin
of
the
asylum
seeker but
through
which
the asylum
seeker
has
passed
on
his
or
her
way to the
Member
State.
The
existence
of a
safe
third country
in respect
of an
asylum
seeker is
a justification
for the invocation
of
the
manifestly unfounded
application
for asylum
principle
and the exclusion
of the individual
from
the
full
asylum determination
procedure.
Thus,
once again,
the
body
of
the
asylum seeker
is
disposed
of in accordance
with a
series of territorially
bound
measures
which
have the effect
also
of
removing
the
asylum
seeker
from
the
jurisdiction
of legal
protection.
The
final measure
was
a
conclusion on safe
countries
of
origin. This
conclusion
apparently
a
less
constraining
form of
measure
than a resolu-
tion,
though the
difference
was
never particularly clear)
set
out
the
def-
inition
of
a safe
country
of origin of
an asylum seeker.
This meant
that
an
asylum seeker
coming
from
a
country
fulfilling
the
requirements to
be a
safe country
would
have his
or her
application
for asylum
dealt
with
in a
summary
procedure,
without
a thorough
investigation
into
the claim
to
protection
and the
exclusion
of
appeal
rights.
This measure,
like
the
safe
third
country
resolution, is
designed around
the territorial
disposal
of
an
asylum
seeker
outside the Union.
After the
Dayton
Peace
Agreement
of
1995
brought
an end
to
hostilities
in the
former
Yugoslavia
and on
the
doorstep
of
the
EU,
while
that
territory
remained
an
important
source
of
refugees
in the EU,
other conflicts
elsewhere
began
to produce
more
forced
migrants
for the
EU. Following
this
period
the rejection
rate of
asylum
applications
began to rise
in most
of the main
EU receiving
states.
While there
were
very substantial
differences
in
rejection rates
in different
Member
States
for nationals
of the same
states
of origin,
in most Member
States
overall
recognition
rates
declined.
With
this
trend, the
arguments
in favour
of inclusive
asylum policies suffered
a set
back. A
new logic
took
hold
if
most
asylum seekers
do not
deserve
refugee
status, then
they
should be
kept
out of
the territory.
The
duty
of protection
loses
its
force
as
fewer and
fewer
persons
claiming
it are determined
to be
entitled.
The
logic of
preventing
abuse takes
hold.
An
important
change
which the Maastricht
Treaty
put
into place was
the creation
of
the so
called Third
Pillar. When
it
finally came into
force
in
1993
after
having
been rejected
once by the Danish
voters,
the
treaty
created
the Treaty
on European
Union
TEU) which, for
the first
time,
provided
a venue
for the immigration,
asylum and
borders
issues
to be
treated
in common
at
the
level
of
the Union.
4
The
TEU created the
European Union
as
an
entity
which included
the
European
Community
that is
what had
been the
totality
of
the EU
before),
a
Common
Foreign
34
J.-V.
Ketelsen,
'Die Zustiind4gkeit
der
EG
ir
die
schaflung
eines
EG-Asylrechls
nach Maostricht
in
K.
Barwig et al, syl nach
der Anderung
des Grnndgesetzes
Nornos
Verlag,
Baden-Baden,
1994,
349-64.
7/21/2019 Refugee Magazine International (18th Edition)
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640
Elspeth Guild
and Security Policy
and
Cooperation
in the fields ofJustice
and
Home
Affairs. The
first step
towards
moving the field
of
asylum
into
the
EU
law
took
place.
The
Third Pillar was defined
by
its lack
of
parliamentary
oversight,
weakness
of
judicial
control
and
the
opaqueness
of
its
working
and measures.
3 5
Nonetheless,
it
provided
a venue for discussion among
EU interior
ministry
officials to take
place, although
it
resulted
in little
action
in the field
of asylum before
it
was transformed by the
Amsterdam
Treaty and immigration and
asylum was
removed
from its remit. What
is
important
though is the reference to
the Geneva
Convention which
first
appears in these provisions.
6. The
Amsterdam Treaty
The
incoherence
of
measures regarding
borders,
movement
of third
country
nationals,
immigration
and
asylum at
the
EU level
led to a
rethinking
of
the
field at
the
next intergovernmental
conference which
ended
in 1997.
The
result was the Amsterdam Treaty which
inserted
asylum into EU
law proper removing it from the
Third Pillar (which itself
was
greatly
changed
by
the
Amsterdam Treaty).
36
The
EC
Treaty
acquired a new Title
IV
the
objective
of
which is
attached
to the
internal
market as an area without controls
on
movement but
via
the creation of
an
area
of
freedom, security
and
justice. This area
requires,
according
to
article
63,
the adoption of a series
of
measures
on asylum.
Article 63 1)
specifies that all the
measures
must
be
in accordance with
the
Geneva
Convention
of 28July
1951 and the
Protocol
of
31 January 1967 relating
to the status
of
refugees and
other relevant treaties .
The
fields
in
which
measures must
be
adopted begins with
the
criteria
and
mechanisms
for determining the
Member
State responsible
for
considering an asylum application
the territory
of
the Dublin
Convention discussed
above.
Thus
the
starting place of
EU
responsibi-
lity
for refugees
is
their
exclusion from
a
right
of
movement
in
the com-
mon territory.
37
By
adopting
the principles underlying
the
Dublin
Convention
the
Member
States right to pool protection responsibility
negatively, to
determine which
Member
State is
responsible
for an asylum
seeker
and
to use as the organising principle
of
that responsibility punish-
ment
of
states which
permit
the asylum
seeker to
cross
the
border- the EU
commences
its
refugee
protection
responsibilities in
a
spirit
of
territorial
5
T. Bunyan
and
F.
Webber,
Intergovernmental
Cooperation
o
Immigration
and Asylum
CCME,
Brussels,
No.
19, 1995.
6
D.
O Keeffe,
Can
the
Leopard
Change
its
Spots? Visas,
Immigration
and
Asylum following
Amsterdam in D.
O Keeffe and P Twomey
Legal
Issues of the Amsterdam
Treaov Hart, Oxford, 1999,
271-88.
7
U.
Brand],
Distribution
of Asylum
Seekers
in
Europe?
Dublin
I
Regulation
determining
the responsibility for
examining an asylum application
in
C. Dias
Urbano
de
Sousa and
Ph. De Bruycker
(eds.), n. 6
above.
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The Europeanisationof Europe s
Asylum Policy
641
exceptionalism. Refugees
will be
the exception
to
free
movement
of
persons and
they will
be
an
exception to the
international obligations
of
the
Member States
(that
is,
the pooling
of responsibility by
a
small
number
of
signatory states
without the
express
agreement
of the
guardians of
the
treaty or the
other
signatory
states .
The underlying
principle is territorial
exclusion
on the basis
of national sovereignty.
In order to
reconstruct the
EU territory
as geographically
coherent and
without
border controls
at
the internal
frontiers, the exception
of
refugees
will
have
to
be
dealt with.
Two
possibilities
are open
to the Member
States
on the
one
hand, to
reverse the policy
put
in
place
from 1990
to
exclude asylum
seekers from
free movement
of
persons
within the EU
territory,
on the other hand,
to
devise
a mechanism
to
remove
asylum
seekers
as
quickly
as
possible from
the common
territory so
that their presence
does not provide
a reason fo r
the
reestablishment
of intra Member
State border
controls. The first was
out
of
the question,
notwithstanding
calls
from
numerous
NGOs
to take
this
route,
the second required a
means to reconcile
the removal of
asy-
lum seekers
from the territory
of
the EU very
rapidly before
their pres-
ence could
disturb
the internal market
without breaching
the Member
States international
commitments
and,
most notably,
the Geneva
Convention.
In this
context, it is not
surprising that
extra
territorial
processing did
not
take
long
to
appear
as
an
option
in
view
of
the
policy
demands.
38
The
second competence
in article 63
regarding asylum
seekers does
not fit
so
well
into the logic of exclusion.
It requires the
adoption
of
minimum standards
on
the
reception
of
asylum
seekers
The
directive,
which has
been adopted
and for
which
the
transitional
period ended in
February
2005 (2003/9), requires
all Member States to
accord to
asylum
seekers a
set
of
reception rights
which
include
material reception
condi-
tions but
also
identity documents.
3 9
However,
the financial considera-
tions
of
providing correct reception conditions
to
all
asylum seekers
is
unfortunately
a factor which
could well be
used to justify extra
territorial
processing.
Among
the
arguments which are made
against the
Member
States asylum
procedures
is that they
are long
and
expensive.
40 They
become
more
and more expensive the
longer they take
as
much
of
the
cost is
for the
reception
of the
asylum
seeker.
Thus extra
territorial
pro-
cessing
can be
seen
as
a way
of
reducing
the costs
which the Reception
Conditions
Directive
imposes
on
the Member States.
8
G. Noll, n.
28
above.
9
A.
Baldaccini,
Asylum
Support:
a
Practitioners
Guide
to
the
U
Reception
Conditions
Directive
Justice,
London, 2005.
4 B. Marshall,
The New Germany and
Migration in Europe Manchester
University
Press,
Manchester,
2000, 40 and following.
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642
lspeth Guild
The
third
competence
is
minimum
standards
on the qualification of
persons
as refugees (Directive
2004/83)
which provides
the
EU s
inter-
pretation of
the Geneva
Convention definition
of a refugee
and of per-
sons
entitled
to
subsidiary
protection.
4
1
The
transposition
of
this
directive
must be completed by
October
2006. Fourthly, minimum
standards on
procedures
for
granting
or withdrawing
refugee status
is now an EU
competence,
the
directive
(2005/85)
was adopted on 1 December
2005
notwithstanding
serious concerns on the
part
of UNHCR
4 2
and
the
European Parliament
4
3
regarding
its
compatibility
with the Geneva Con-
vention.
44
It
is in this directive
that
the principles
set
out
in the
London
Resolutions
find
their home in EU law. This
measure provides the
logic
of
exclusion
in
EU
law
and the mechanisms by
which the
removal of
asylum
seekers
from
the
EU
territory on
the basis
of
safe
third country
procedures, with no suspensive
effect and
no consideration
of
the
under-
lying protection claim,
will take place.
Under
the
provisions
of
Title
IV
EC while there
is
provision
for judi-
cial
oversight at the
EU level it is limited.
While
in most
other
fields of
EU
law any
court or tribunal at the
national level
has
the right to refer a
question on the
interpretation of
EU
law to
the European
Court ofJust-
ice
for a definitive interpretation,
in this field
only courts against whose
decision
there is no further
right
of appeal are
entitled
to
refer
questions
(but
then
they are
also
required
to refer any
question).
The
effect
of
this
limitation
is
to delay the arrival
of questions of
interpretation in
the field
before
the
European
Court
ofJustice.
4
5
7 The
Tampere Conclusions
and
the
5 Year
Transitional
Period
In
October 1999 the European Council
met in Tampere,
Finland, to set
out the principles
which were to
motivate the drafting
and
adoption of
secondary
legislation in
the area
of
freedom, security
and
justice,
in
the
new
forum
of
the EU.
4 6
Two
key principles were
set out to shape the
area of
freedom, security and justice:
harmonisation of
asylum law at
a
common
minimum standard level and
the
principle
of
mutual
recogni-
tion
of
acts
of
states.
The common
minimum
standard
principle led
to a
4 For a
detailed
analysis
of
the
directive,
see,
J. McAdam, n.
14 above, 461
42
UNHCR, The
European
Union,
Asylum
and
the International
Refugee Protection Regime:
UNHCR s
recommendation for the
new multi-annual programme in
the area
of
freedom,
security
and justice , Sept. 2004.
20 Sept. 2001,
OJ 2002 C
77
E/94.
44 C. Costello, The
Asylum
Procedures
Directive
and
the
Proliferation of Safe
Country Practices:
Deterrence, Deflection
and
the
Dismantling of
International
Protection? ,
7 JML
35 (2005).
45
A.
Arnull,
The
Treaty
of Amsterdam
and
the
Court
ofJustice
in D.
O Keeffe
and
P.
Twomey,
n. 36
above,
115-20.
46 At annex 1 find the
measures adopted so far on asylum.
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643
number
of difficulties
regarding
the protection
afforded
by
the
standards
applied, as
discussed
in
the
previous section.
The principle
of mutual recognition
provides a worrying setting
for
the
activities
of
the EU
in
the acceptance
of responsibility
for protection
claims.
This principle depends
on
Member
States
accepting
the
state-
ments,
actions and decisions of
one another
without
question
as regards
the
measures
which are adopted
under it For instance,
a directive on
mutual
recognition
of
expulsion
decisions provides
for the
Member
States
to
accept
without
permitting
challenge the
expulsion decision
taken
against a
third
country
national by
another
Member
State.
4 7
The prob-
lem here
is that
solidarity among sovereign states
is privileged
over the
reality
of rights protection
of
the individual.
As
is
evident
from the
number
of
expulsion
decisions
taken
by
EU states
which
are challenged
before the European
Court of
Human Rights, EU
states
are
by no
means
always consistent with
their human
rights obligations in this
field
The
deployment of the
concept
of mutual
recognition seeks
to reinforce the
legitimacy
of state
actions vis vis
the
individual without
asserting any
control to
ensure that the
actions are consistent
with
rule
of law and
human
rights obligations,
to mention
just
two
issues It
also
put into
place
a
way
of
thinking
which does
not
offend
national
sovereignty,
permits
states
to
give legal effects
to one
another s
decisions without
permitting
the
individual subject
to the
decision to challenge
its
execution
and
which
is
justified
on
the grounds
that
the states in the group
are
all
good Europeans
now
they
all comply with
their
human rights
obligations.
The
failure of any
state to act
in accordance with
the principle then,
becomes
an act
of
challenge
in itself
against
the trust
and
confidence
that
is the objective
of
the
exercise. Thus
the
questioning
state is no longer
perceived
as
correctly
ensuring
that
international
standards are
complied
with before
acting but as attacking the
objective
of the group.
The stakes
are raised against
the
diligent civil
servant
who
seeks
to
make
sure that
his
or
her
counterpart
in
another Member
State
is
actually
doing
his
or
her job
correctly. This
model easy
slides out of
the realm
of
Member
States
only, to candidate states
(for instance, Bulgaria,
Romania, Turkey
and Croatia) then
to the neighbours through
the Neighbourhood
Policy.
4
9
In
the field
of
immigration and
asylum,
the
Council s
Tampere
Conclusions
indicated
its fascination with
a policy which
is carried out
7
K.
Groenendijk,
The
Directive on
mutual
recognition
of
Expulsion
Decisions:
symbolic
politics
or unbalanced politics?
in C. Dias Urbano
de
Sousa
and Ph. de Bruycker
(eds.), n. 6 above,
447-63.
48
S Alegre and M. Leaf,
European Arrest
Warrant
A
Solution aheadof
ts 7ime?Justice,
London 2003,
14 and following.
49
E. Guild,
What
is
a Neighbour? ,
Paper
presented
at
BISA,
St
Andrews,
2005.
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Elspeth
uild
on
the territory
of third
countries
not least
by
the first
paragraph
of the
Conclusions
of
that meeting
which
state:
The
European
Union
needs
a comprehensive
approach
to
migration
addressing
political,
human
rights
and
development
issues in
countries
and
regions
of
origin
and
transit.
This
requires
combating
poverty,
improving
living conditions
and
job opportunities,
preventing
conflicts
and
consolidating
democratic
states
and
ensuring
respect
for human
rights,
in
particular
rights
of
minorities,
women
and
children.
To that end,
the
Union
as
well
as Member
States
are invited
to
contribute,
within their
respective
competence
under
the
Treaties,
to
a
greater
coherence
of
internal
and
external
policies
of
the Union.
Partnership
with
third
countries
concerned will
also be
a
key
element
for the
success
of
such a
policy,
with a
view
to promoting
co-development.
The Conclusions
then
go
on to
consider
the
Common European
Asylum
System,
and
the
principles
which
should
inspire
it.
They state:
The European
Council
reaffirms
the importance
the
Union
and
Member
States
attach
to absolute
respect
of
the right
to
seek
asylum.
It has
agreed
to work
towards
establishing
a Common
European
Asylum
System, based
on the full
and
inclusive application
of
the Geneva
Convention,
thus ensuring
that
nobody
is
sent
back
to
persecution,
i.e.
maintaining
the
principle
of non refoulement.
The
order
and
juxtaposition
of the
two statements
reveals a theoretical
foundation
which
promotes
the association
of
asylum
with
weaknesses
in
countries
of
transit
and
failures
of
protection
in
countries
of
origin.
The
idea
of coherence
between
internal
and
external
policies
invites
the
asso-
ciation
of
protection
obligations
of the
Member
States
with
those
of third
states.
The comparison
is
at the
heart
of the
framework.
While
failures
of
protection
in countries
of
origin are
certainly
the key
issue
of human
rights
compliance,
the merging
of this
focus
with
that of refugee
protec-
tion may
result
in
the
instrumentalisation
of
the individual.
Human
rights
compliance
duties
of
states
are
the proper
subject
of international
super-
vision
mechanisms
when questions
arise
as
to the
adequacy
or otherwise
of
institutions
at the
national
level.
The
determination
of
a refugee s
needs
for
protection,
while always
arrived
at against
the
background
of
national
law and
practice,
must
have
as its
primary
focus
the
individual
and his
or
her
safety,
not
the reinforcement
of international
trust
and
cooperation
between states
in order
to
promote
human
rights
compli-
ance. When
the later
objective,
legitimate
as
it is,
takes
priority
over
the former,
the individual
is cast
as
prima
acie
disloyal
and his
or her
claim
illegitimate.
50
The
individual s
need
for
protection becomes
sec-
ondary
to the
international
relations
objectives
of the
state
in
which
he
or
she
has
sought
refuge.
The
state
where
protection
is
sought
is
sceptical
5
E. Guild, International
Terrorism
and
EU
Immigration,
Asylum
and orders
Policy:
The
Unexpected
Victims
of September
2001
8
European
Foreign
Affairs
Review 331
(2003).
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about the claim
not
because
of any specific
aspect of
the
individual s
story
but
because
the state is in a
dialogue
with the
state
of origin about human
rights
compliance
which privileges
the discourse
of that
state over
that
of
the
refugee.
The
EU
as
an
area within
which the
principles
of
sovereignty
apply as
regards many
powers
of
the
Member
States
but supranational sover-
eignty is also
at work demands
a
high
degee of trust and confidence
among
states as
regards
their activities.
SHowever, the greater
the
demand
for
trust and
confidence among
states, the greater
the pressure
for
avenues
of
redress
for
the aggrieved
individual.
The
obvious problem,
raised by a number
of
international
organisa-
tions
and
NGOs,
is that it is
clear
that many of the states
with
which
the
EU
seeks
good relations
do
not
have
acceptable
human
rights
standards.
Their nationals
form a
large
part
of
the persons
seeking
asylum in
the EU
and their claims
are not self-evidently
unfounded.
Thus,
the emphasis
must be
on the countries
of
transit and
their duty to provide
protection
before the protection
seeker arrives
in the EU.
However,
many
of
these
countries are poor
and have weak
institutions
so the
third
step
comes
naturally
once one
has accepted the
logic
of
protection
elsewhere
provide
them
with the
institutions and tools
to provide protection (or
at
least to achieve
exclusion from the
EU) on their
territory. It is towards
this step
that
the next
multi-annual programme
moves.
8 The
Hague Programme
and the draft
Constitution
The
second multi-annual
programme for action in
the
field of freedom,
security
and justice
was published by the
EU institutions
in
November
2004
and
entitled
the
Hague Programme.
5 2
In
asylum
it covered a wide
range
of
issues that
have been criticised
by UNHCR,
NGOs
and
others
in
the
Union
as
questionable
in
respect of
their commitment
to the com-
mitments
of
the Geneva
Convention.
I
will
focus
here on the
extra-
territorial
processing
issue which arises in
the document.
The Hague Programme
called for
adoption of
the directive
on
asylum
procedures
notwithstanding
that the draft
had
been
criticised
by
UNHCR
and others.
UNCHR
had already expressed concerns
that
there is a genuine
risk that the
Directive, in practice,
may lead
to
breaches
of
international
law
53
not least
as
the pressure
to speed up the
procedures has
led to the inclusion
of measures
which effectively
prevent
an
individual from having
a consideration
of
his or
her
application on
the
51
M.
Anderson
and
J
Apap,
Striking a
Balance
between
Freedom,
Security
and
Justice
in
an
Enlarged
European Union, CEPS,
Brussels
2002.
5
For
a
full discussion, see T
Balzacq and
S Carrera, Migration Borders
Asylum Trends and
Vulnerabilities in
EU
Policy,
CEPS,
Brussels,
2005.
5
UNHCR,
n
42
above
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lspeth
Guild
territory
of
the EU
or
an
appeal right in the
event
of
rejection.
These
provisions
are
justified on
the
ground that
the individual
will
be sent
outside the EU
to
a
safe
third country
and
thus
the EU
Member States
protection
obligations
can
be territorially
shifted away
from
the
EU.
5 4
The
proposal
also includes
the concept of safe countries
of origin.
But
there is
no
list
of
so-called
safe countries
of
origin
in its annex. This
was
due to a lack
of unanimous agreement
on the safety
of
the ten
countries
listed
(Benin,
Botswana,
Cap
Verde, Ghana, Senegal, Mali,
Mauritius,
Costa
Rica,
Chile
and
Uruguay).
A vote
on this
issue
is due
to take place
at
a later stage by qualified
majority.
Serious
reservations
have been
raised about
the
legality
of
a
common
EU
list
of
safe countries
of
origin.
The
Hague Programme
also
calls for
joint processing
of claims both
within
and
outside
EU territory
but
it
is
not
further elaborated upon
in
the document.
The idea
of joint
processing
outside
the EU had
been
around for some
time, not least
the
2003
proposals
of
the UK, but
it
had
been
subject to much
criticism.
5 5
This
included
that the
objective
itself is
objectionable
and
that the many studies, including
some
by
the
Commission,
question its feasibility, practicality
and legality.
5 6
Further,
one
of the key legislative institutions,
the
European
Parliament
has
also
made
it clear
that any
approach
implying
the
establishment
of
holding
camps
for
the assessment of either
protection
or immigration
status
would
amount
to
off-shore
the
EU s
own
responsibilities
for those
seeking sanc-
tuary
and
could not be
accepted.
The
Hague Programme also calls
for
a European Asylum
Office
intended to coordinate
among Member
States
asylum authorities.
Exactly what
this office s duties
would be is less
clear and concerns
have been
expressed
that
it should
not become a
mechanism for
exchanging
bad
practices in
the field.
There are
also
current
and future
coordination
measures
(including
the Commission s
Committee on immi-
gration
and
asylum
and
Eurasil committee)
which could
be
coordinated
but
at the
moment they
lack some
vital characteristics
of
democratic
accountability,
transparency
among
them,
and so it is difficult
to deter-
mine to
what extent
they comply
with
human rights obligations.
The emphasis
of
the
Hague Programme is to stop or move
the
asylum
seeker
beyond the common
external border
to the territory
of
third
states.
The
justification
is
that third
states
must be held responsible
for their
human
rights obligations,
that is, the
full compliance
with
the
Geneva
Convention
and
thus they
should
take
charge
of
asylum
applicants.
In
the most recent
proposal by the Commission
for a directive
on removal
of third
country nationals,
it
is
striking
that
it refers to
removing
third
5 R.
Byrne,
Remedies
of
Limited
Effect:
Appeals
under
the
forthcoming
Directive
on
EU
Minimum Standards
on
Procedures JML
71 (2005).
See
G.
Noll,
n.
28
above.
6
See C. Costello,
n. 44
above.
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country
nationals to
third countries (that
is,
outside the Union
but not
to their
country
of
origin)
but there is no
longer a reference
to any
previous transit
or
stay in
such
third
country.
5 7
The
link
of
the
external
dimension,
which
was
based on making countries
outside
the Union
responsible
for human
rights protection of asylum seekers, has
now
moved
beyond
making third countries responsible for refugees who
have some
link
with their territory, to
shuffling
them off completely
to
countries through which they have never passed and which
owe them
no duty other than that
which
comes
into
existence
by reason of
the
Member States' actions.
The
draft
Constitution, whose
future is
rather doubtful
at the
moment,
intensifies the problem by creating
a
constitutional legal basis
for
these
practices. Article 11-1
67 2) g)
states
that
EU framework
laws
will
set down
measures for
a common European asylum
system
comprising 'partner-
ship and
cooperation with
third countries for
the
purpose
of managing
inflows of people for asylum or subsidiary or temporary protection'.
However, the
Constitution not only
spells out problems, it also
pro-
poses
new sources of refugee protection
in
EU law.
The second part of
the document contains
the EU
Charter of
fundamental rights
as
a
justi-
ciable part of the treaty.
Article 11 18
provides that the
right
to asylum
shall be
guaranteed with
due
respect for
the rules of the
Geneva
Con-
vention.
5 8
The
conflict
between
the
direction
of
exclusion
of
the refugee
and the
internationally recognised duties
of protection which
are
appar-
ent in the
development of EU law
would
now
take
residence
in the Con-
stitution.
In
effect
this
would mean
that the resolution of the tensions
would
no
longer be
limited
to the field of
negotiations,
but
would
be
judicialised.
9. The Human
Rights
Challenge
Human
rights do
not only enter EU
law
through the Constitutional
Treaty. They are already an
important
part of the constitution
of bits
and pieces
59
in accordance with
which
the
EU currently
operates.
In
particular, reference to the European Convention on
Human Rights
and compliance
with it have become, since the 1990 s
part
of the frame-
work of
the
EU.
6
0
The
inclusion of an
obligation
to
respect fundamental
7
See
the
House
of
Lords,
European
Union
Sub
Committee
F
Inquiry
into
A Common
EU
Policy
on
Returns
2006
(transcripts of the evidence are on
line at http://www.publications.parliament.uk/
pa/ld/Iduncorr/).
58
E.
Guild
'The
Variable
Subject
of
the EU
Constitution,
Civil
Liberties
and
Human
Rights'
6
ML 381 (2004).
This
phrase
comes
from
D.
Curtin,
'The
Constitutional
Structure