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Published online by Cambridge University Press: 27 October 2017
The admission, reception and treatment of asylum seekers in the European Union has been an issue of continuing political and legal concern throughout the 1990’s. The rising numbers of persons seeking protection at the beginning of the period coupled with a rapidly developing regional jurisprudence on the right to protection from the European Court of Human Rights in particular, changed the nature of the debate. The Member States began to search for common policies and practices as regards asylum through intergovernmental measures. With the Amsterdam Treaty, the most important aspects of asylum have been transferred to the EC Treaty: criteria and mechanisms for determining which Member State is responsible for considering an application for asylum; minimum standards on reception of asylum seekers; minimum standards with respect to the qualification of nationals of third countries as refugees; minimum standards on procedures for granting and withdrawing refugee status amongst others.
1 Art. 63 EC.
2 As an exception, Denmark is covered by Title IV on two occasions (visa format and visa list) in respect of which it cannot opt out.
3 Peers, S. “Legislative Update” No 2 (3) (2001) European Journal of Migration and Law (forthcoming).Google Scholar
4 However, the United Kingdom is participating in the Schengen acquis as regards irregular migration, police and criminal co-operation. The Schengen acquis is defined in the Schengen Protocol to the EC Treaty and TEU; it has now been published in the OJ 2000 L 239/1.
5 The protocol lifts the territorial and temporal limitation of the original convention.
6 Goodwin-Gill, G. The Refugee in International Law (Oxford, OUP, 1978)Google ScholarPubMed; Hathaway, J. The Law of Refugee Status (Toronto, Butterworths, 1991 Google Scholar); Carlier, J-Y. Who is a Refugee? (Deventer, Kluwer Law International, 1997)Google Scholar.
7 There has been substantial interpretation of the Convention by the Committee estab lished to adjudicate individual claims under it.
8 Les etrangers et la Convention europeéne de sauvegarde des droits de l’homme et des libertés fondamentales (Librarie du Droit et de Jurisprudence, 1999).
9 Art. 1F.
10 Chahal [1997] 23 EHRR 413.
11 Joly, D. “A new asylum regime in Europe” in Nicholson, F. and Twomey, P. (eds) Refugee Rights and Realities (Cambridge, CUP, 1999) 336 Google Scholar.
12 This commitment has now been incorporated both into the EC Treaty and the TEU.
13 Beck, U. What is Globalisation? (Cambridge, Polity Press, 2000) 11 Google ScholarPubMed.
14 Guild E. “The impetus to harmonise: asylum policy in the European Union” in Nicholson and Twomey above n 11, 313.
15 This policy finds its first EU wide expression in the 1992 Conclusions on countries in which there is generally no serious risk of persecution agreed by the Justice and Home Affairs (JHA) ministers of the Member States acting intergovernmentally: Guild, E and Niessen, J. The Developing immigration and Asylum Policies of the European Union (Deventer, Kluwer Law International, 1996) 177 Google Scholar.
16 Appendix II to Article 29a Asyl VfG—besides the Member states, safe countries of ori gin include Bulgaria, Ghana, Poland, Romania, the Slovak Republic, the Czech Republic, and Hungary. Henkel, J. ‘Germany’ in Wallace, R. (ed.) Asylum Practice and Procedure—Country by Country Handbook (London, Trenton, 1999) 83 Google Scholar; Noll, G. The Non-Admission and Return of Protection Seekers in Germany 9 (1997) International Journal of Refugee Law 415 CrossRefGoogle Scholar.
17 Asif Javad & Zulfiqar Ali & Abid Ali v. Secretary of State for the Home Department, CA 17 May 2001.
18 This policy was given form in the Resolution on a harmonised approach to questions concerning host third countries agreed again in 1992 by the Justice and Home Affairs (JHA) ministers of the Member States acting intergovernmentally: Guild and Niessen above n 15 at 161-165.
19 For a particularly lucid explanation of this see Henkel above n 16.
20 Dublin Convention OJ 1997 C 254/1.
21 Unfortunately, recognition of an individual as a refugee by one Member State is not binding on the others.
22 Art. 3(2) Dublin Convention above n 18.
23 TI v. United Kingdom European Court of Human Rights reports 2000-1.
24 R v. Secretary of State for the Home Department ex parte Adan & Aitseguer Judgments 19 December 2000; www.parliament.the-stationery-office.co.United Kingdom/pa/ld200001/ldjudgmt/jd001219/adan-1.htm>
25 Art. 4 Dublin Convention above n 18.
26 Arts. 5-6 Dublin Convention ibid. “The Dublin Convention establishes a link between the performance of controls on entry to the territory of the Member States and responsibility for subsequent applications for asylum. . . . The criteria set out in Articles 5-7 of the Dublin Convention are based on the premise that the Member State which is responsible for control ling a person’s entry onto the territory of the Member States should also be responsible for considering any subsequent asylum application. The questions which arise are first whether this is an appropriate basis for allocating responsibility and second whether it can be achieved effectively.” European Commission Staff Working Paper: Revising the Dublin Convention, SEC(2000)522 paras 24-25.
27 Arts. 5-7 Dublin Convention, ibid.
28 van der Klaauw, J. “The Dublin Convention: A Difficult Start” in den Boer, M. (ed) Schengen’s Final Days? (Maastricht, EIPA, 1998) 77 Google Scholar.
29 For a discussion of this see Noll above n 16.
30 Art. 3(5) “Any Member State shall retain the right, pursuant to its national laws, to send an applicant for asylum to a Third State. . .”
31 Recommendation concerning a specimen bilateral readmission agreement between a Member State of the European Union and a third country, Guild and Niessen above n 15 at 393-405.
32 Art. 63 EC.
33 For a discussion of the incorporation of the Schengen acquis see Peers, S. “ Caveat Emptor? Integrating the Schengen Acquis into the European Union Legal Order” 2 (1999) CYELS 87.Google Scholar
34 Wallace above n 16.
35 Protocol 6 to that Treaty.
36 Aretxaga, B, “A Fictional Reality. Paramilitary Death Squads and the construction of State terror in Spain”, in Jeffrey, A. (ed.), Death Squad. The Anthropology of State Terror (Philadelphia, University of Pennsylvania Press, 1999) 61.Google Scholar
37 Peers, S. EU Justice and Home Affairs Law (Harlow, Longman, 2000) 129 Google Scholar.
38 Guild, E. “Entry into the United Kingdom: The Changing Nature of National Borders” No.4 14 (2000) Immigration & Nationality Law & Practice 227.Google Scholar
39 I will refer here exclusively to the Regulation which is about to be adopted by the Community. Document 14191/00 in the EC Council’s register of documents which is expected to be adopted at the March/April 2001 Council meeting.
40 Document 500PC0027: Commission Proposal—COM (2000) 027 final.
41 For example, Afghanistan, Albania, Algeria, Angola, Bosnia, Cote d’Ivoire, Democratic Republic of Congo, Eritrea, Ethiopia, Ghana, Haiti, Iran, Iraq, Nigeria, Pakistan, Sri Lanka, Sudan, Turkey, and others.
42 Chapter V Examination of applications and decisions taken, CCI OJ 2000 L 239/317.
43 European Commission, Communication Towards a common asylum procedure and a uniform status, Valid throughout the Union, for persons granted asylum, COM(2000)755 final; 22.11.2000.
44 Now part of the Schengen acquis—see Peers above n 37.
45 Peers, S., Legislative Update No 1 (3) European Journal of Migration Law (2001) 361 Google Scholar. The United Kingdom’s House of Lords Select Committee on the European Communities Sub- Committee F undertook an inquiry into this proposal in November/December 2000.
46 Directive 2001/51 supplementing the provisions of Article 26 of the Convention imple menting the Schengen Agreement of 14 June 1985 OJ 2001 L 187/45.
47 The thrust of the United Kingdom’s Home Secretary, Jack Straw’s much publicised speech in Lisbon, September 2000, is that European states should develop a refugee protection system in which the issuing of visas (and hence the selection of individuals) to refugees result ing from turmoil in their region should be the key; the spontaneous arrival of persons seeking asylum in European States could then more legitimately be discouraged. See also his address 6.02.01 to the Institute of Public Policy Research (IPPR), London
48 “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.
49 For a review of the Dublin Convention see Blake QC, N. “The Dublin Convention” in Guild, E. and Harlow, C. (eds.) Implementing Amsterdam: Immigration and Asylum Law in the European Union (Oxford, Hart, 2000 Google Scholar). Nicol QC, A. and Harrison, S. The Law and Practice of the Dublin Convention in the United Kingdom No 1 (2) (1999) EJML 465 Google Scholar; Noll, G. “Formalism vs Empiricism: Some Reflections on the Dublin Convention on the Occasion of Recent European Case Law” No 1. 70 (2001) Nordic Journal of International Law 70 CrossRefGoogle Scholar; Hurwitz, A. “The 1990 Dublin Convention: A Comprehensive Assessment” 11 (1999) International Journal of Refugee Law 646 CrossRefGoogle Scholar.
50 Guild and Niessen above n 15 at 141-147.
51 Ibid at 161-165.
52 Guild above n 14; Winterbourne, D., Shah, P. and Doebbler, C. “Refugees and safe coun tries of origin: appeals, judicial review and human rights” No. 4 10 (1996) Immigration & Nationality Law & Practice 23.Google Scholar
53 Wallace above n 16.
54 For example, the Netherlands.
55 Minderhoud, P. “Asylum seekers and access to social security: recent developments in the Netherlands, United Kingdom, Germany and Belgium” in Bloch, A. and Levy, C. (eds.) Refugees, Citizensbip and Social Policy in Europe (Basingstoke, MacMillan, 1999) 132 CrossRefGoogle Scholar.
56 For a full examination of the link see Geddes, A. “Denying access: asylum seekers and welfare benefits in the United Kingdom” in Bommes, M. and Geddes, A. (eds.) Immigration and Welfare Challenging the Borders of the Welfare State (London, Routledge, 2000) 134 Google Scholar.
57 Home Office form SEF.
58 Indeed, it is not even enough to cover the bus costs for asylum seekers to attend their interviews.
59 Home Office form SEF.
60 Bank, R. “Europeanising the reception of asylum seekers: the opposite of welfare state politics”, in Bommes, M. and Geddes, A. (eds.) Immigration and Welfare: Challenging the Borders of the Welfare State (London, Routledge, 2000) 148 Google Scholar.
61 See Remedios, E. Benefits, Immigrants and Asylum Seekers—a Review No 1 12 (1998) Immigration & Nationality Law & Practice 19 Google Scholar; In particular R v. Secretary of State for the Home Department ex parte JCWI & Another The Times, 27 June 1996.
62 Geddes above n 56 at 134-147.
63 Art. 63(l)(b) EC Treaty.
64 European Commission, Communication: Scoreboard to Review Progress on the Creation of an Area of “Freedom, Security and Justice” in the European Union COM (2000) 167 final, 24.03.00.
65 9703100 Limite—Asile 28, 23 June 2000.
66 European Commission, Proposal for a directive on minimum standards for conditions for the reception of asylum-seekers (COM(2001)181).
67 Source: European Commission, Communication: Towards a common asylum proced ure, supra.
68 In 1999, 11, 140 persons benefited from the amnesty; in 2000 a further 10,330 received res idence rights on the amnesty basis; Home Office, Asylum Statistics: December 2000 United Kingdom.
69 TV5 report on the French gendarme encouraging illegal immigrants to go to Belgium, November 2000.
70 Home Office, Control of Immigration: Statistics United Kingdom Second Half and Year 1998.
71 Comparable statistical information on asylum seekers is not available in most other Member States.
72 “Hundreds Queue for British ‘Eldorado’” Agence France Presse 1 Feb. 2000; Refugees set their Sights on Britain Independent 21 Aug. 1999.
73 Calais one step from Heaven for refugees The Scotsman 1 Apr. 2000.
74 Agence Press 1 Feb. 2000 above n 70.
75 BBC Radio 4 News Report 5 Feb. 2001.
76 BBC Monitoring Service 22 July 2000. According to the report the French border police man was arrested and held in custody. Charges were being brought.
77 In the case of Sangatte this policy is reinforced by the Protocol between the United Kingdom and France concerning frontier controls and policing, co-operation in criminal just ice, public safety and mutual assistance relating to the Channel fixed link 1991 and its Additional Protocol 2000 whereby the policing of the United Kingdom border is the duty of the French border guards.
78 OJ 2000 L 252/12
79 OJ 2000 L 316/1.
80 Arts. 3 and 10 Decision above n 73.
81 Peers above n 33
82 Art. 4 of the Regulation above n 79.
83 Art. 6 of the Regulation Ibid.
84 Art. 9 of the Regulation ibid.
85 Art. 11 of the Regulation ibid.
86 Art. 11(3) of the Regulation ibid.
87 Annex 4 Common Consular Instructions, part of the Schengen acquis: Belgium has notified the following residence documents only as granting the right of visa free travel to third country nationals resident within the Union (English term): Identity Card for Foreigners; Certificate attesting to entry in foreigners register; Diplomats Identity Card; Consular Identity Card; Special Identity Card (blue in colour); Special Identity Card (red in colour) Identity card for children under the age of five of aliens who are holders of diplomatic identity cards, consular identity cards, blue special identity cards or red special identity cards; certificate of identity with photograph issued by Belgian communes to children under twelve; list of persons participating in a school trip within the European Union.
88 Intergovernmentally, the Member States within the Third Pillar agreed a Resolution on a minimum guarantees for asylum procedures (Brussels June 1995) and the Commission has proposed a Directive on Minimum Standards on procedures in Member States for granting and withdrawing refugee status COM(2000) SEC.
89 UNHCR, Brussels Office: Revisiting the Dublin Convention: Some Reflections by UNHCR in response to the Commission staff working paper, Autumn, 2000, 6.
90 R v. Secretary of State for the Home Department ex parte Adan & Aitseguer Judgments 19 December 2000; www.parliament.the-stationery-office.co.United Kingdom/pa/ld200001/ldjudgmt/jd001219/adan-1.htm>
91 For a review of Amnesty’s position see Amnesty International European Union Association “Amnesty International has called before that the adoption of EC measures in the field of asylum respect fully, this is not only formally but also in practice, the international obligations of Member States under international refugee law and international human rights law, so that they reflect the broad framework of existing and evolving international law and standards, including the relevant jurisprudence and interpretation. One such international obligation is that it is the country where a refugee applies for asylum which is obliged to consider the application substantively and to ensure that the refugee is not directly or indirectly returned to persecution.” Revision of the Dublin Convention: Comments on the Commission Staff Working Paper October (2000) 2.
92 Ministre de l’intérieur, H. Rogers C, 18 Dec 1996 (1997) Journal de droit international 509.
93 Errera, R “France” in Wallace above n 16, 59.
94 i.e. notwithstanding the legislation to the contrary establishing an irrebuttable presump tion of safety: Henkel J. above n 16, 84.
95 BverfG Decision of 14 May 1996—2BvR 1938/93, 2315—BverfGE 94,49 <99> as quoted in Henkel J. ibid.
96 For the history of the United Kingdom courts and the Dublin Convention see Nicol and Harrison above n 49 at 465 et seq.
97 For a fuller analysis of the question see Noll G. “Formalism v. Empiricism: Some Reflections on the Dublin Convention on the Occasion of Recent European Case Law” (2001) Nordic Journal of Human Rights (forthcoming).
98 R v. Secretary of State for the Home Department ex parte Adan & Aitseguer above n 90
99 Judgment of Lord Slynn of Hadley in Adan & Aitseguer ibid.
100 Judgment of Lord Slynn of Hadley in Adan & Aitseguer ibid.
101 Judgment of Lord Steyn in Adan & Aitseguer ibid.
102 TI v. United Kingdom [2000] Immigration and Nationality Law Reports 211.
103 Above n 90.
104 TI v. United Kingdom ibid.
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