Ten years after Tampere (1999-2009). Coordinating and harmonizing European asylum policy: Is it possible, or desirable? On October 15-16 1999, the heads of the fifteen countries of the European Union met, along with their foreign ministers, in the Finnish city of Tampere to accomplish what would seem to be the very reasonable goal of outlining plans for the harmonization of EU policy and practice on immigration and asylum to be completed within five years, that is to say, before Oct 2004. While there had been previous calls for harmonization of immigration and asylum policy and practice within the EU, it was at Tampere that harmonization became a stated goal of the Union and a deadline was set for its realization. Now, 10 years after Tampere, and 5 years after its supposed deadline, we will assess what developments, and equally important, what type of developments, have come out of Tampere, and whether accomplishment of its goals are, although belatedly, possible, or even desirable. The Tampere Summit and its goals were a logical result of both practical, logistical considerations and a redefinition and re ordering of the concerns of the European Union itself. On a practical level, the Schengen accords had abolished regular immigration controls within the internal borders of the EU in 1998, making it relatively easy for anyone who entered one country of the Union to move physically, if not legally, to the other countries of the EU; hence, the immigration laws and practices of one country of the Union immediately became the concern of all the others. On an organizational level, the 1997 Amsterdam Treaty, which went into effect in 1999, urged harmonization of immigration and asylum policy within the EU by defining the Union as an area of freedom, justice, and security. Without going into the technicalities of the Amsterdam Treaty, it is fair to claim that by making such a declaration, the Treaty made immigration and asylum a major concern of the European Union, much as harmonization of trade, and then monetary policy had been before. Hence, the calling of the Tampere Summit was, within both the practical and the structural developments of the European Union, a logical conclusion. In order to understand, however, what happened--- or, perhaps, better said, didn’t happen--- at Tampere, and how it determined the orientation of the EU towards immigration and asylum policy, we should look briefly at the social and political conditions in Europe in the years leading up to the 1999 Summit. It is worthwhile going back a decade or so, to the early 1990s, since the social and political conditions in Europe during this period were at least equally significant in determining what would come out of Tampere as the logistical and structural issues. This examination of the historical run up to Tampere is particularly important since, at first blush, the document containing the Tampere conclusions seems extremely positive in reference to guaranteeing the right of asylum in Europe. It asserts directly the absolute respect for the right to seek asylum under the Geneva Convention and the necessity to grant access to the territory of the Union in order to seek such asylum. By understanding the sociopolitical context in which the Tampere Summit took place, however, we can seem how the Tampere Summit opened the door to giving
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precedence to the security aspects of the Amsterdam mandate, in the form of border controls, over those of freedom and justice. It should first be remembered that up until the end of the 1980s, the only countries in Europe having much recent experience with immigration were those that had had overseas empires previous to the decolonization of the 1960s--- Britain and France, and to a lesser extent, Belgium, Portugal and the Netherlands. Germany and Austria were practically immune to immigration with the exception of a small, constant influx of migrants from Eastern Europe, with whose countries of origin Germany and Austria had long maintained cultural relations. (Poles in Germany, and Poles, Czechs, and Hungarians in Austria were not considered total cultural foreigners by the native population, a good portion of which had Polish, Czech, or Hungarian ancestry.) Relatively small but significant numbers of Soviet Jews chose to settle in Germany and Austria, but for obvious historical reasons, those countries could not object to Jewish immigration. Immigration was hardly an issue in Scandinavia, and Spain and Italy were actually immigrant sending countries until the mid 1980s. Throughout the Cold War, until the dissolution of the Warsaw pact in 1989 and the Soviet Union in 1991, periodic waves of people leaving the Soviet Block came through Western Europe, but they were largely resettled in the “traditional resettlement countries:” i.e, The US, Canada, Australia, and New Zealand, or in Israel. Those few who wished to remain in Western Europe were generally accorded asylum, since those opting to emigrate to the West were considered “political capital,” living proof of the superiority of capitalism and free markets over communism. There were practically no standards for their acceptance as asylees; many Eastern Europeans, especially Poles and Hungarians, who could travel relatively easily during the last years of the cold war, had traveled several times between East and West, with the trips duly registered on their travel documents, and were nevertheless granted asylum in the West when they finally made the decision to emigrate permanently. Persecution claims were seldom examined critically. The highly politicized nature of refugee determinations rendered the asylum procedure practically meaningless. The number of émigrés from the East who chose to stay in western Europe was, however, quite small, and despite the liberality of West European asylum determinations, there was still a strong feeling among West Europeans that Western Europe was not resettlement territory. During the early 1990s this insistence on the, frankly, imaginary construct of the homogeneity and immutability of the individual European cultures was shared not only by the far right, which would develop overtly xenophobic policies in much of western Europe; it found a certain degree of resonance even among the European center and left. These attitudes came very much to the fore as soon as the Soviet Union collapsed in 1991, and refugees lost their value as political capital and suddenly became a liability. Although it was understood and accepted in Western Europe that ethnic conflicts and religious repression were still problems within the territory of the former Soviet Union, giving many people who could now freely leave that territory justifiable asylum claims, several West European countries now began to put up obstacles to their entry, demanding that they seek asylum in the newly free, supposedly safe countries of the former Warsaw pact, which they had to cross in order to enter Western Europe by land. Western European countries had a largely unjustified fear of
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an inundation of refugees from the former Soviet Union, and a somewhat more justified fear that the US, who had readily resettled the large majority of such refugees during the cold war, would wash its hands of the matter and leave Western Europe with masses of ex Soviets to resettle. Although this mass exodus from the former USSR never materialized, the importance of the west European reaction to a possible strong influx of asylum seekers after the fall of the USSR shouldn’t be underestimated in assessing the general European attitude toward asylum as soon as the element of political advantage was removed. The people whom the West European countries sought to block were not economic migrants, but rather groups who all agreed would have strong asylum cases under the Geneva Convention of 1951. The governments that sought to put up these barricades were not far right, and in some cases were lead by social democrats, and their actions concerning immigration had broad public support. Such was the sociopolitical situation in Western Europe at the onset of a decade that would bring first in 1991 and then later in 1995 shiploads carrying thousands of Albanian economic migrants to Italy, which, in turn, would repatriate almost all of them. Then in 1993-95 came many thousands of people fleeing the violence involved in the breakup of Yugoslavia, and the general European reaction was an important foreshadowing of what would develop in Tampere and beyond. While the traditional countries of immigration set parameters for admission, and accepted a portion of these people as refugees for permanent resettlement, Western Europe either attempted to block entry, as did Italy, or set up an ad hoc system of temporary protection which, rather disappointingly but understandably, was sanctioned by the UNHCR. The UN refugee agency could not, ethically and ideologically, do otherwise, since it had long since made its peace with this manner of handling mass flight situations in Africa. During the Yugoslav crises, people fleeing political religious or ethnic persecution, along with those fleeing generalized violence, were accorded prima facie refugee status, without any attempt being made to sort out who was a refugee under the 1951 Convention, and, thereby, in need of a more permanent form of protection, and who was simply fleeing life threatening violence and who could return to his country of origin when the violence was over. Although technically, having prima facie status did not preclude an application for Convention refugee status, most prima facie refugees did not, and in many cases could not apply for Convention status until they were in danger of deportation. By that time details were fuzzy, documentation difficult, and political imperatives urging return were strong. Although UNHCR later maintained that a large percentage of the 350,000 prima facie Bosnian refugees in Germany should have received Convention status, less than 1 % actually did. Certainly, a temporary protection program is also an expeditious way of dealing with the overburdening of an asylum system by a mass influx of potential asylum seekers. This justification would be acceptable if a program were instituted to receive and adjudicate asylum claims under the 1951 Convention as soon as possible after arrival. However, this never happens, not in the case of the Bosnian refugees, or in any of the temporary protection programs in Africa.
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The principle rationale for a temporary protection regime, at least as it was realized during the Yugoslav crisis, is, of course, ethnic and nationalist interests. Economically, temporary protection is expensive and wasteful. There is no integration program, since the refugees are expected to go home. Although temporary refugees are generally allowed to work in the host country, language problems, cultural differences, the absence of any economic integration programs, and even obstacles--such as, in Germany, having to prove that no EU citizen or permanent resident was available for the work--- made finding a job very difficult. Moreover, since they were kept in a perpetual state of insecurity as to their future, motivation to begin a new life in the host country was understandably very low. In Germany, 75% of the Bosnian temporary asylees stayed their entire time in Germany on state support. Clearly, the only advantage to the state is that politicians could tell their constituents that the foreigners living down the street would eventually be sent home and not have any substantial influence on the native culture. Western Europe was not a territory of asylum, and while the Yugoslav refugees had to be given protection, they should be sent home as soon as possible. Despite, however, the dramatic numbers of refugees caused by the breakup of Yugoslavia, the Yugoslav crises were viewed by Europeans as problems that would eventually be resolved in the foreseeable future. Just a little over a year before Tampere, however, boatloads of Turkish and Iraqi Kurds began to arrive in southern Italy, refugees not only from Turkish and Iraqi suppression of the Kurds, but also from long standing conflicts among the various Kurdish political and ethnic groups. This was not the first influx of Kurdish refugees into Europe, and European governments were correct in assessing the chronic and long-range nature of the problem. Most important, however, is that the Kurdish arrivals created rifts within the EU and created what was generally perceived as an urgent need for a uniform EU migration policy. The Kurdish crisis became a major, if not the major backdrop for the discussions at Tampere. The situation created a major confrontation between Italy on one side, and Germany, Austria, and, to a lesser extent, France on the other, threatening to delay or even suspend the abolition of internal EU border controls that were scheduled to go into effect in the spring of 1998 under the Schengen accords. Italy had successfully resisted major participation in the Yugoslav crises that dominated the 1990s (Italy hosted under 10% of the numbers of Bosnians hosted by Germany and Austria). The arrival of the Kurds was, in fact, Italy’s first recent experience with major numbers of potential Convention asylum seekers. It had no significant Kurdish, Turkish, or Iraqi communities, and had no reason to view the arrivals as potentially difficult to integrate or as a security threat. The Italian center left government granted asylum under the 1951 Convention to a substantial portion of the arrivals; those who failed to submit convincing asylum claims or did not request asylum in Italy were simply given a written notice of expulsion (foglio di via); they were given permission to land and not forcibly returned. The situation in Germany, and to a lesser extent in Austria, was substantially different. Both countries were major recipients of refugees from the Yugoslav crises, who were not obediently returning home, as had been expected. Moreover, Germany had a substantial non- Kurdish Turkish population and had taken in large numbers of Kurdish refugees earlier in the decade. There were major conflicts in Germany
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between its Kurdish and non- Kurdish Turkish populations, each of which also found expression in acts of violence aimed at Germans in general. The German government justifiably claimed that a large majority of the Kurds arriving in Italy had no intention of staying in that country, but rather would find their way to Germany as soon as possible to join the Kurdish communities there. The German government also, totally without any basis, branded the new wave of Kurdish migrants as economic migrants whose migration had been organized by criminal gangs and demanded that the Italians arrest and deport the Kurdish arrivals back to Turkey. The Italian reaction to the Kurdish influx was also, most likely, influenced by the impossibility of efficiently policing thousands of kilometers of coastline and, frankly, may even have been influenced by the tacit expectation that the large majority of the Kurds would probably not remain in Italy. Nevertheless, it was also, clearly, the legally mandated reaction under the Geneva Convention and human rights instruments. The German position, although legally unjustifiable, was understandable because of sociopolitical and practical considerations. Germany was confronted with a situation in which the handling of a serious internal problem was essentially in the hands of a foreign power. Faced with what were, in fact, irreconcilable differences within the European Union, the member states resorted to a tactic that was to set a dangerous pattern for resolution of such problems in the future: European pressure on countries of origin and transit. Externalization of a refugee problem was not only a way of blocking refugees’ entry into the EU; it was also a way of avoiding conflict among EU member states. When it was clear that there could be not resolution of the Italian/ German conflict, the countries of the EU put pressure on Turkey to halt transit and emigration. The Turks, who were politically and economically dependent on Europe and who had been trying to be accepted into the EU itself, responded by increasing border controls making it difficult for Iraqi Kurds to enter Turkey and further for them and Turkish Kurds to flee into Greece. The stage was set for what would later become a cornerstone of the EU’s refugee policy: limiting access to the territory of the EU, even when it is clear that such limitation constitutes limiting access to asylum. In 1998, however, what the Europeans were ready to do de facto, they were not quite ready to do officially. In the fall of that year, the Austrians, spurred on by the Kurdish situation, presented the now infamous “Austrian Strategy Paper” at a session of the EU Commission’s department of JHA. The paper suggested using the EU’s “political and economic muscle” to force adjacent countries both to accept repatriations and to hinder transit of irregular immigrants and thereby potential asylum seekers into the territory of the EU. Perhaps simply because of the paper’s criticism of the Geneva Convention and rather undiplomatic language, it was roundly rejected by member states, although it suggested doing precisely what they had done earlier that year with Turkey. The Paper is interesting furthermore, in its radical suggestions that asylum be essentially temporary and that the permanence of asylum should depend upon cultural factors, that asylum seekers entering the EU in an irregular fashion be removed from
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the EU for adjudication, and that sociopolitical concerns be important factors in asylum adjudications. These suggestions, while received with shock and revulsion in 1998, continue, periodically, to be discussed seriously by the EU up to the present. Most important, however, was that the Austrian Paper’s linkage of asylum, migration controls, and foreign policy was essentially salvaged by the High Level Working Group that had been formed earlier that year, and passed on to find its way into the Tampere conclusions. As stated, the Tampere conclusions, while seeming to maintain a commitment to the principle of asylum under the Geneva Convention and the necessity of giving potential asylum seekers access to the territory of the EU, by stressing security concerns, took away with one hand what it seemed to give with the other. While Tampere did not overtly go as far as the Austrian Strategy Paper had in proposing forcing countries of origin and transit to block emigration, and stops simply at mandating close cooperation between the EU and countries of origin and transit, it formally recognizes the report of the High Level Working Group, which had incorporated if not the language, much of the philosophy and action plans of the Austrian Paper. The Tampere conclusions treat migration, the harmonization of the EU’s asylum policy on one hand, and migration management on the other as two quite separate tracks: One consisting of a series of Council Directives, each devoted to one of the various elements of an unified asylum program, and another, devoted to migration management concerns consisting of a series of meetings and negotiations on security issues, that is to say, border control, within the EU and with countries of origin and transit. In discussing managing migration, no mention is ever made in the Tampere conclusions of assuring the right to asylum under EU programs to combat irregular migration. The Tampere conclusions express no awareness that these two tracks may come into conflict. The meetings and negotiations with countries outside the EU mandated by Tampere were, of course, realizations of the principles set forth in the officially rejected Austrian Strategy Paper but carried forth in the work of the High Level Working Group. In subsequent years they were conducted both on a bilateral level with EU approval and on a EU level. Discussions within the EU on migration management ultimately lead to the establishment of specialized EU agency to deal with border control situations, Frontex. It is important to understand, however, that within the context of mandating a common asylum system, Tampere made no attempt to address the problems that, in practice, had caused conflicts in this area within the Union. Tampere defined its mandated harmonization merely in the context of agreement on principles concerning which country was responsible for deciding an asylum seeker’s claim, minimum reception standards, common standards for a fair and efficient asylum procedure, and an approximation of rules on the recognition and content of refugee status. Certainly, consistency within the Union in these essentially bureaucratic areas is necessary, but it seemed to leave totally out of its concept of harmonization the problem that had caused the greatest amount of conflict within the European Union in the first place: the broad inconsistencies on how asylum seeker groups and individuals were adjudicated from country to country. With all of the elements of harmonization
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mandated by Tampere now put in place, if the Kurdish crisis of 1998 occurred again, the EU would still be in no better a position to deal with it. The Italians would be granting them asylum and the Germans would be calling them criminally organized economic migrants. The solution would also be the same: externalization, or pressure put upon countries of origin and transit to hinder migration into the EU. Despite the official completion of the Tampere mandated harmonization of asylum policy, asylum adjudications within the European Union still remain a highly politicized matter strongly influenced by sociopolitical considerations prevalent in each potential country of asylum. Just last year, while Afghans were refused asylum and being rounded up and physically deported from the UK, they were refused asylum but merely given letters of expulsion in Greece, and they were given subsidiary asylum in Italy--- All this with groups with essentially the same profile in terms of reasons for flight. Considering the asylum adjudications in Italy over the past few years, the influence of sociopolitical factors becomes quite apparent. Up until the recent economic crisis, in Italy, medium sized industries in the north and farms in the south had a chronic need for unskilled or semi skilled labor. Despite the xenophobic ranting of members of the present Italian government, and despite draconian--- and unenforceable--- laws giving the illusion of a crack down on irregular immigration, in 2007, Italy still had the highest rate of positive asylum adjudications in the EU--- 57%! (The EU average is just above 20%). The Italian figures included not only some form of protection for many work ready Kurds, Iranians, Afghans, and Cameroonians, many of whom would have had serious problems getting asylum in other countries in Europe, but also young African women with, frankly, rather weak claims but who, if denied protection, would have not returned to Africa. They would quite likely have ended up as prostitutes. Subsidiary asylum gave them the right to work in safer, less exploitative, more socially acceptable professions. Although the Italian commissions adjudicating the cases would never officially admit it, sociopolitical and economic conditions in Italy obviously played a substantial role in case adjudications. Greece, on the other hand, has a positive asylum adjudication rate of under 2%, and that figure includes subsidiary asylum. While it is true that Greece has had a substantial influx of Albanians, most of whom can be assumed to be economic migrants and who nevertheless have claimed asylum, the remainder of the caseload in Greece consists largely of Kurds, Iranians, and Afghans, that is to say, much the same groups as have claimed asylum in Italy. Nevertheless, there is a substantial difference in the approval rate. There is no mechanism that allows the EU even to investigate this absurdly low percentage of positive asylum adjudications. As long as no procedural violations can be found or refusal to consider cases that conform to EU outlines and definitions, Greek adjudicators can set the standards of credibility, interpretations of what is meant by life threatening, weight put upon possibilities of safe havens within the countries of origin, or the definitions of persecution, that they wish. The inconsistencies in adjudications within the EU are present not only in reference to national groups, but even in terms of conditions and types of persecution. Both the UNHCR and the EU--- in fact, as part of the Tampere process--- have clarified that
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persecution because of sexual orientation merits protection under the 1951 Convention. Ample evidence has been provided that homosexuals in Iran have both been persecuted and have a reasonable fear of persecution. Nevertheless, homosexuals lodging claims in the UK have consistently have had problems having their claims recognized, and some have actually been deported to Iran. British adjudicators have insisted that the claimant actually had to have been arrested and condemned under the specific statute barring homosexuality, disregarding other forms of harassment. Home affairs minister Jacqui Smith has justified these decisions by claiming that homosexuals have no problem in Iran if they are discreet. Other countries in the EU, such as Sweden, have justifiably recognized claims under the provision for reasonable fear of persecution that have not involved arrest. Hence, homosexual support organizations have had to advise gay people fleeing Iran to choose their country of asylum carefully. The European Council is, of course, fully aware of these inconsistencies, but instead of trying to address directly the degree to which asylum adjudications differ from country to country, it has, in accordance with the Tampere conclusions, set up the Dublin II accords, which were developed with the intention of limiting the refugee’s shopping around for the best asylum “deal.” Under Dublin II, unless an asylum seeker can show compelling reasons, such as close family ties in another country, he must apply for asylum in the first country within the Union that he enters. If he applies in another country, that country may, with the agreement of the first country, return him to that country. Dublin II is a fine example of the EU’s willingness to shoot itself in the foot in order to punish refugees and avoid according them their rights. First and foremost, there is little if any evidence that asylum seekers shop around for the best asylum deal, either in terms of adjudications or in terms of benefits accorded to asylum seekers and refugees. When asylum seekers are able to choose their country of asylum, they almost invariably choose a country where there is a substantial community of their compatriots or, lacking that, a country with which they have linguistic and cultural experience, such as an ex- colonial power. In short, they chose countries in which their social and economic integration would offer fewest problems. There is almost no indication that interpretation of the Geneva Convention, reception conditions, or social benefits play a major role in most refugees’ choice of country of asylum. Dublin II not only impedes refugee integration and unfairly gives an advantage to asylum seekers who can afford to fly directly to their country of desired asylum. It more importantly puts an unfair burden upon those countries on the periphery of the EU, some of which constitute the poorest countries in the Union, have strong histories of xenophobia (Poland, Slovakia, Greece), and have almost no successful recent history of integrating foreigners. At the same time, Dublin II effectively insulates countries such as France, Germany, Austria, Holland, and the Scandinavian countries. Dublin II, therefore, in a mean spirited attempt to prevent asylum seekers from taking advantage of certain inequities in the protection system--- which they never have given much evidence of doing, anyway--- creates even more serious inequities among the countries of the Union.
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To be sure, the harmonization process mandated by Tampere has produced a few very positive results. The 2004 Qualifications Directive, perhaps the most positive of the Directives in the Tampere process in terms of strengthening asylum, made it mandatory for states to recognize persecution by non- state agents, which had heretofore not been recognized by some EU states. It also specifically clarified that persecution because of sexual orientation is to be understood as persecution as a member of a social group and, therefore, qualifies such asylum seekers for international protection under the Convention. It also opens the door to claims by women on the grounds of abuse or denial of rights on sexual grounds (i.e., infibulation, forced marriage, state sanctioned marital abuse, etc.). Most important, the Qualifications Directive put into place a time limited, renewable subsidiary protection for those fleeing generalized, life threatening violence, which had not been covered by the Geneva Convention. While most EU countries had been granting some sort of protection to those fleeing generalized violence, the Qualifications Directive strengthened the protection by making it mandatory across the EU and by allowing limited family reunion for subsidiary asylees. It also allowed individual countries to grant other, time limited forms of protection on humanitarian grounds. Nevertheless, aside from the issue surrounding non state persecution and possibilities for relative reunion of those receiving subsidiary protection, the Qualifications Directive was typical of the Directives deriving from the Tampere process in not requiring member states to do anything that they were not already doing. Amnesty International and other human rights advocates had expressed fears that Tampere would not strengthen protection within the EU, but rather would reduce mandated protection to the lowest common denominator. Unfortunately, that is pretty much what happened. The Directives are carefully worded to allow member states to proceed more or less as they wish with asylum seekers. The 2003 Reception Directive, if it didn’t at times produce rather sinister results, would offer an almost comic example of how the European Council danced around the issue of freedom of movement within the country of requested asylum. First, the Directive states that asylum seekers should have freedom of movement within the territory of the host state; then, it states that the host state may confine the asylum seeker to a specific place if it doesn’t interfere with his normal life activities; then, it goes on to say: When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law. The Directive, therefore, ultimately authorizes the detention of an asylum seeker in a closed facility more or less at the discretion of the host country. “Reasons of public order,” regardless of the intentions or understanding of the phrase by the drafters of the Directive, can mean anything that the host country, or even the local police, wants it to mean. Seeing how this situation is applied in Italy is very illustrative: Officially, “for reasons of public order,” asylum seekers entering the country without an official identity document from his country of origin, that is to say about 80% of asylum seekers in Italy, should be detained in a closed center, originally for a period not to exceed 60 days, but now up to 6 months; it is projected that their asylum claim will be adjudicated with this period. The detention of such persons for
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reasons of public order, i.e. security, is conditional, however, on there being a place for them in a detention center. The detention centers are almost always full, since they also house people in deportation proceedings, so the asylum seekers are released after a few days, or never sent to a detention center at all. How, one may ask, can this happen if the person was originally subject to detention for reasons of public order? Moreover, the search for a place in a detention center is at the discretion of the police in the city where the applicant lodges his claim. In cities with expressly xenophobic policies, such as Verona or Treviso, or in the ports of entry for maritime arrivals in Sicily and Lampedusa, the applicant has a good chance of being detained; in Venice, which is immigration friendly by tradition, detention is only rarely mandated, and then, not as a result of an assessment of the individual situation, but rather by pressure for detention applied for some unknown reason by the Ministry in Rome. While the level of protection mandated by the EU Directives in the harmonized asylum system is such that it generally allows most EU countries simply to continue doing what they were already doing, it also lacks an effective enforcement mechanism. If a country does find itself out of compliance with a stipulation of a Directive, aside from fines being imposed, the EU has no way of bringing the country into compliance. In the case of asylum issues, where non- compliance may involve complex internal political and socioeconomic factors, such an enforcement mechanism is not effective. The only case in which a country has been cited as being out of compliance is that of Greece, which about two years ago was cited by the European Commission as being out of compliance with the Reception Directive. It is not clear whether fines have been imposed, or if they have been, at what level. What is, however, clear is that Greece has not moved in any substantial way to improve the situation. It has not even tried to create the illusion of doing so. Moreover, given the large dimensions of the problem in Greece, the costs, both and economic and in political terms of coming into compliance would be immense. In pointing this problem out, I in no way wish to excuse the conditions in Greece, which violate not only the EU Directive, but also international accords on human rights. I cite it merely as a clear example of the lack of effectiveness of the EU enforcement mechanisms. In introducing the discussion of the Tampere conclusions, I stressed that there seems to be no direct mandate to oblige measures taken to manage migration to assure access to asylum, and as we will later see, measures in this direction seem to have been taken without due consideration of their effects on such access. While efforts to manage migration, however, have proceeded without due consideration of asylum, the European Council has sought, as part of its harmonized asylum program, to contribute to the efforts to manage migration. Hence, it is clear that the priority of the Tampere process was, essentially, to manage migration. The asylum instrument in which such a priority becomes clear is the last Directive approved by the Council, the Procedures Directive, passed after the Tampere deadline, in 2005. It is beyond the scope of this paper to give a complete analysis of the Procedures Directive; its major thrust, however, was to attempt to build a wall around the European Union by declaring that a EU country could refuse to entertain
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an asylum request from an applicant who, in traveling to the EU, had passed through a country that could be considered “safe.” The criteria for being determined “safe” was simply having an asylum procedure in place and having been a signatory to international human rights accords. The applicant would be expected to request asylum in that country outside the EU and could be returned to that country. A list of such countries was to be developed, over which there was a great deal of controversy; the development of the list, which after four years, has never taken place, is, however, of secondary importance, since the Directive allows individual countries, on their own, to designate countries as safe and act accordingly. The Procedures directive also provided for the development of a list of safe countries of origin; claims by asylum applicants from these countries can be considered manifestly unfounded and the applicant can be put in an expedited asylum procedure in which the burden of proof that the country is not safe for him totally falls on the applicant. Despite the great deal of controversy surrounding these provisions of the Directive, and protestations by UNHCR and civil society, the Directives, as is the case with almost all the provisions of the Directives in the EU harmonized asylum package, did little more than support what many countries of the EU were already doing. Ever since the end of the Cold War, Germany and Austria had been returning asylum applicants who had crossed Poland or Hungary (which were not yet EU member states) to those countries, where they were generally kept, without any further justification, in closed detention facilities financed by the Germans and Austrians. Spain had been returning sub Saharan Africans to Morocco. Later on, after joining the EU, Slovakia had been returning asylum seekers, mainly Chechens from the Russian Federation, to the Ukraine. Stating that the safe third country and safe country of origin provisions of the Procedures directive simply extended permission to the entire EU to do what many of the member states were already doing is not intended, of course, to trivialize the dangers of these provisions. It is under the safe country of origin provision, that last month the Italian government repatriated hundreds of migrants to Tunisia and Algeria from the Italian Mediterranean Island of Lampedusa without giving them access to a regular asylum procedure. Although it is probable that many of these were economic migrants, neither Algeria nor Tunisia have solid human rights records, and it cannot be assumed that there were no justified asylum seekers among those repatriated. Amnesty International and UNHCR have protested the repatriations, but to no avail. It seems, then, in terms of practical developments across Europe, very little has changed in EU asylum practice as a result of the completion of the Tampere mandated harmonization of EU member state’s asylum systems in 2005 since the beginning of the process with the Tampere conclusions in 1999. In 2009, asylum systems in Europe are, in practice, pretty much where they were before the whole process started in 1999. It should be mentioned at this point that supposedly to address the inconsistencies in asylum adjudications throughout the EU, last month the European Commission approved a proposal for the establishment of an asylum support office. The office will give up to date information of conditions in the countries of origin, survey
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adjudications throughout the EU, and provide international adjudicators at the request of member states to assist in cases of unmanageable influx of asylum claims. While international organizations such as UNHCR cannot, for clear political reasons, but react positively to such a proposal, the realities of European attitudes towards asylum demand a certain degree of skepticism. Up to date country conditions information is already available, through UNHCR and other organs, to any national adjudicating body that cares to look at it. It is difficult to believe that the under 2% of positive adjudications in Greece is a result of their not having country conditions information. Moreover, information the survey of adjudications from country to country will give is also readily available. There has, however, been no indication that the adjudications in one EU country are in any major way influenced by adjudications of similar cases in another EU country. Lastly, given the apparent relationship of many asylum adjudications to national sociopolitical and economic exigencies, it is difficult to imagine any member state’s voluntarily ceding its authority over asylum adjudications to an international authority. It is difficult to see, therefore, how the asylum support office will be able to be very effective in addressing the inconsistencies in asylum adjudications. Since there is no intention of obliging member states to utilize the office or to refer to the information it supplies in its adjudications, there is good reason to fear that it will be utilized primarily by member states to give international support to decisions they wanted to make in the first place. Since it has already been apparent that the fears of asylum advocates were largely justified in reference to the Directives of the common asylum system, there is no reason to trust that asylum support office will not move in the same direction. While the Directives of the Common Asylum System have not changed very much, the migration management aspect of the Tampere conclusions, however, has had a noticeable effect on the possibilities of access to asylum in Europe. In the last decade the number of asylum applications in Europe has dropped almost every year, despite no discernible decline in the number of refugee producing situations worldwide. UNHCR has expressed grave concern over this decline and has directly attributed it to increasingly limited access to asylum caused by migration management. This decline is even more significant in the face of increased pressure throughout Europe on irregular economic immigrants already within the territory of the Union, who are forced in ever greater numbers to seek the shelter of a bogus asylum claim in order to avoid arrest or deportation and thus artificially raise the total number of asylum claims. The relationship between asylum and managing migration, which had been glossed over in Tampere, seemed to receive some clarification two years later, at the European Council’s Laeken Summit (Dec. 2001). The events of Sept. 11, 2001 obviously received a great deal of attention at Laeken, and they were reflected also in the Council’s comments on migration and asylum: The European Council undertakes to adopt, on the basis of the Tampere conclusions and as soon as possible, a common policy on asylum and immigration, which will maintain the necessary balance between protection of refugees, in accordance with the principles of the 1951 Geneva Convention, the legitimate aspiration to a better life and the reception capacities of the Union and its Member States.
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Gone is the assertion in Tampere that asylum is an absolute goal, with the implication that it is independent of sociopolitical and economic factors. In Laeken, just two years later, asylum is expressly dependent upon those factors. The events of Sept 11, with the increased awareness of security issues and even more important for migration issues, the intense discussions on the integration of immigrants, especially Muslim immigrants, that almost immediately followed Sept. 11, afforded at least the catalyst for this new direction. The Laeken conclusions, while calling for progress on the common asylum system, on which the Commission was practically accused of have dragged its feet, stressed the importance of integrating immigration into the Union’s foreign policy; hence it’s focus was ultimately on migration management. On this matter there was, however, no dragging of feet. Within in six months of Laeken, the Council met in Seville (June 2002) and concluded: In future all EU agreements with non-EU states are to: "include a clause on joint management of migration flows and on compulsory readmission in the event of illegal immigration" (para.33). This to include those who are "unlawfully present" in the EU, eg: own nationals of the third country and people who may have passed through the third country in transit. "In the event" that there is an: "unjustified lack of cooperation" the EU will apply direct pressure through agreements on trade, aid and assistance coupled with political and diplomatic sanctions. This is practically the language of the then much maligned Austrian Strategy Paper of just a few years previous. This policy has produced serious human rights violations, particularly in North Africa. As a result of this policy and action plan, the EU practically closed the door to Morocco for people fleeing not only poverty, but also civil unrest and political and ethnic persecution in sub Saharan Africa. For years, sub Saharan Africans had been migrating to Morocco not with the intention of further migration to Europe, but rather simply to work or to find informal asylum from persecution or civil unrest. Morocco, on the other hand, was sending large numbers of its own citizens to Europe, and the Moroccan economy depended (and continues to depend) upon the remissions that these people would send home. In order to create the impression of cooperation with European efforts to thwart illegal migration, but still allow large numbers of Moroccans to emigrate to Europe, the Moroccan government began to apply pressure on the sub Saharans, whose situation in Morocco became progressively more desperate. This ultimately resulted in their storming the fences of the Spanish enclaves of Ceuta and Melilla in 2005, resulting in several deaths. It also resulted in sub Saharan Africans’ abandoning Morocco as a place of work, temporary asylum, and transit to Europe, and forced them to make the much more dangerous trip by sea to the Canary Islands. Hence, this attempt by the European Union to manage migration succeeded only in forcing the migrants into progressively more dangerous schemes and setting up a barrier to asylum. The pressures applied by the EU to Morocco under the policy officially formulated in Seville produced disastrous results, but in the case of Morocco at least EU was
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dealing with a country that had signed the 1951 Geneva Convention. Technically, asylum was possible in Morocco, although very few of the sub Saharan Africans who had fled there had, or even could have applied. Although EU negotiations with Morocco involved cynical, non- humanitarian calculations both on the European and the Moroccan side, they were probably, in a very narrow sense, legal. This is not the case with the Seville mandated negotiations that Italy began with Libya as soon as UN sanctions were lifted from that country in 2003. The details of the historical background, these negotiations, and their tragic results are made available, in part, in the excellent, well documented report published in 2006 by Human Rights Watch. As soon as the UN sanctions against Libya were lifted, in 2003, the Berlusconi government in Italy negotiated readmission agreements and began deporting north and sub Saharan Africans who were arriving by sea in southern Italy from Libya back to that country. The HRW report details the horrendous violations of human rights that were, ( and still are) current in Libya. These conditions are, of course, heart- breaking, but, strictly speaking, they are almost besides the point. What is important is that the arrivals were not given access to an asylum procedure in Italy and were summarily deported to a country who had no asylum procedure and that had not signed the Geneva Convention. Hence, they were illegal under both Italian and International law. The deportations were strongly protested by civil society, UNHCR, and the European Parliament. However, no sanctions were ever voted against Italy, nor was there any pressure put upon Italy to desist by either the European Commission or the Council, and the deportations continued unabated until the fall of the Berlusconi government in the spring of 2005. Although Italy was the perpetrator, the EU itself was, therefore, party to multiple violations of international law. The tragic story does not stop simply with the deportations, however. As part of the readmission agreements negotiated with Libya, Italy agreed to fund, and in fact has funded detention camps in Libya where both the returned migrants and other sub Saharans in irregular status are held. These camps were part of negotiations that are still secret, but Italian officials have admitted, sometimes even proudly, Italian involvement. The HRW report details the horrendous conditions in these camps, which my office has been able to corroborate through interviews with refugees who have finally successfully arrived in Italy. HRW has also documented that Italy has even further compounded its flaunting of international law by funding repatriation flights from Libya to the migrants’ country of origin. There flights are not simply occasional; they are regular and numerous. The EU has compounded its complicity in this affair by participating in a concerted program of misinformation concerning the migratory situation in North Africa. When he was JHA minister, Mr. Frattini repeatedly and publicly discussed the one and one half million sub Saharans that are in North Africa allegedly waiting to board boats to cross the Mediterranean into Europe. It is true that there are almost two million sub Saharan Africans in North Africa, but almost all of them have come to North Africa to work there and neither the intention nor the capacity to cross over to Europe. While the price of the perilous journey across the Mediterranean varies, it almost never is less than $1,000 US, and frequently much more. In Libya, an irregular sub
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Saharan migrant can earn at very most $150 per month--- when he works and when his Libyan employer pays him. From this money, he must support himself and, generally send some money back home to his family. In short, the chances of an irregular migrant in Libya’s being able to put together the fare to make the crossing are almost inexistent. In fact, almost all the sub Saharan refugees we have interviewed who have finally reached Italy have either brought money from home or had money for the trip sent to them from relatives already in Europe. It is quite clear that only an extremely small percentage of the sub Saharans in North Africa can even dream of making the crossing; JHA clearly has access to these data, and, therefore, Frattini’s statements were clearly demagogic misinformation. In the spring of 2005 the Berlusconi government fell, and Romano Prodi, who, as president of the European Commission had engineered most of the Directives of the Common European Asylum System, became Italian prime minister. Although he immediately stopped the blatantly illegal deportations, he allowed the misinformation campaign to continue in Italy and did nothing to stop Italian participation in the less obvious illegal measures--- the funding of the detention camps and the repatriation flights from Libya. Moreover, while Prodi, in stopping the deportations, removed Italy from their direct legal implications, all he really did was shift the overt responsibility for denying access to asylum to the European Union. The Tampere conclusions mandated international cooperation on border control, and while in 1999 such cooperation entailed primarily sharing information and training operations, by 2004 (still under Prodi’s presidency of the European Commission) this mandate for international cooperation was understood to mean the establishment of an agency, Frontex, which conducts joint control of the EU’s external borders. As soon as Prodi stopped the overtly illegal deportations to Libya, the Italian coast guard stepped up its surveillance intercepted, and turned back increasing numbers of boats carrying immigrants to Libya. By the end of 2006, however, this operation could become internationalized and Frontex was already planning interventions in the Mediterranean. Frontex then shortly afterwards took over from the Italian coast guard and began forcing boats carrying potential asylum seekers back to Libya. Quite clearly, no assessment can be made on the high seas of a migrant’s qualifications for asylum. In many cases, the Frontex operation has no contact with the passengers on the boats at all; it simply forces the boats to reverse course and head back to Libya. UNHCR and civil society have repeatedly protested the Frontex operations, but as of this date they still continue. Frontex operations have also been stationed periodically on the Greek- Turkish border, forcing migrants back into Turkey. The Frontex operations on this border are as illegal as those in the Mediterranean, since Turkish law does not recognize asylum for people of non -European origin and frequently returns them to their countries of origin. Hence, potential Iraqi, Iranian, and Afghan asylum seekers become, through the operations of Frontex, victims of refoulement. In summing up, we see that the negative attitudes in Europe towards migration and asylum that developed very quickly after the end of the Cold War were in no way mitigated by the activities of the European Union in the past decade. The absolute
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respect for the right to seek asylum proclaimed in the Tampere conclusions rapidly became relativized, with the interests of international protection fairly consistently being subordinated to the interests of managing migration. Standards of protection were most frequently reduced to the lowest common denominator in the EU’s common asylum system, or even directly subordinated to the interests of managing migration, as in the safe third country and safe country of origin stipulations of the Procedures Directive. We have seen, in addition, that even when there are cases of non- compliance with even these low standards, the EU has no effective mechanism of moving the offending country toward compliance. Moreover, we have seen that after the completion in 2005 of the common asylum system mandated by Tampere, very little has changed concerning asylum in practical terms. What really matters, adjudications, are made throughout the territory of the EU with very little, if any, consistency. Undoubtedly most tragically, however, is that concerns of managing migration have so dominated EU priorities that access to asylum in the territory of the Union has been seriously diminished. This priority has been promoted not only through strategies that are not only in violation of general ethical and humanitarian principles but also in specific violation of international and national law. And in undermining the rule of law, not just potential asylum seekers or other migrants, but all Europeans become the victims.
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