The EU discussions on extraterritorial processing: Solution or conundrum?

International Journal of Refugee Law

Volumn 18, Issue 3-4, 2006, Pages 601-629

  Garlick, Madeline ^a  

^a UNHCR's Regional Representation   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; EUROPEAN IMMIGRANT; EUROPEAN UNION; IMMIGRATION POLICY;

EURASIA; EUROPE; EUROPEAN UNION;

EID: 37849188969     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/eel014     Document Type: Conference Paper

References (95)

1. Political discussions around this issue have referred to the concept of a 'Mediterranean solution' for Europe, aimed at combating the phenomenon of irregular arrivals at the EU's sea borders by people crossing the Mediterranean in small boats. However, it is noted that concerns about irregular entry, including by asylum seekers, also preoccupy the EU at its Eastern (land) borders. There are also many thousands of people whose irregular status in Europe results from overstaying visas and other forms of residence permit. Thus any measures to address the EU's southern coastal borders would only address one aspect of its challenges on asylum and irregular movement.
2. Council Regulation EC/343/2003 of 18 Feb. 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national [2003] OJ No L 50/1 ('Dublin II Regulation').
3. Council Directive 2005/85/EC of 1 Dec. 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L 326/13 (the 'Asylum Procedures Directive').
4. Non-EU states are commonly referred to by EU Member States and institutions as 'third countries'.
5. Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related acts, 2 Oct. 1997 [1997] OJ No C 340/1 ('Amsterdam Treaty'). The Treaty entered into force on 1 May 1999.
6. Subsequently adopted in 2001 as Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] QJ No L 212/12.
7. Adopted as Council Directive 2003/9/EC of 27 Jan. 2003 laying down minimum standards for the reception of applicants for asylum in the Member States [2003] OJ No L 31/18 ('Reception Conditions Directive').
8. Adopted as Council Directive 2004/83/EC of 29 Apr. 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ No L 304/12.
9. Asylum Procedures Directive, n. 3 above.
10. Dublin II Regulation, n. 2 above.
11. Council Decision 2000/596/EC of 28 Sept. 2000 establishing a European Refugee Fund [2000] OJ No L 252/12.
12. Presidency Conclusions, Tampere European Council, 15-6 Oct. 1999, Council Document SN 200/99 ('Tampere Conclusions').
13. Dublin II Regulation, n. 2 above; art. 1. The Regulation's Preamble elaborates on its objectives, namely to establish a 'clear and workable method for determining the responsible Member State' (recital 3), utilizing 'objective, fair criteria both for the Member States and for the person concerned' in order to determine responsibility and 'guarantee effective access' to asylum procedures (recital 4).
14. Ibid., art. 7.
15. Ibid., art. 6.
16. Ibid., art. 9.
17. Ibid., art. 10.
18. See Council Regulation EC/2725/2000 of 11 Dec. 2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention [2000] OJ No L 316.
19. For a detailed examination of Dublin II's application in terms of compliance with international refugee law and its impact on asylum seekers, see UNHCR's study on state practice in the application of the Dublin II Regulation, 'The Dublin II Regulation: A UNHCR Discussion Paper', April 2006, http://www.unhcr.org/cgi-bin/texis/vtx/home/ opendoc.pdf?tbl=RSDLEGAL&id=4445fe344.
20. Dublin II Regulation, n. 2 above, Preamble, recital 4.
21. The time limit is three months for requests to 'take charge' of a person who has been shown, e.g., to hold a visa or residence permit from the requested state, to have a family member there, or to have entered the EU illegally through another state: Dublin II Regulation, n. 2 above, art. 17(1). Note that there is no fixed deadline in the Regulation for submitting requests to 'take back', in cases where the claimant had lodged an earlier asylum claim in the requested state. The absence of a time limit for 'take back' requests means that some applicants wait for long periods before the request is made, and thus the Dublin II process can begin.
22. Two months for requests to take charge (art. 18(1), 18(6)); one month for requests to take back (art, 20(1)): Dublin II Regulation, n. 2 above.
23. The normal time Emit is six months (arts. 19(3), 20(1)(d)), which is extendable to 18 months in certain circumstances (arts. 19(4), 20(2)): Dublin II Regulation, n. 2 above.
24. For further details of the problems described, see UNHCR Dublin II study, n. 19 above.
25. In theory, the asylum seeker may apply for a revocation of the 'interruption' to the Secretary-General of the Ministry of Public Order, but NGO reports indicate that no such request has ever been granted. There is also a right to seek review of the interruption decision from the Council of State, but in the absence of legal aid, this right is very difficult for most asylum seekers to exercise in practice.
26. Asylum Procedures Directive, n. 3 above, art. 19(1)(b).
27. Dublin II Regulation, n. 2 above, art. 3(1).
28. See also section 3.2 below.
29. Dublin II Regulation, n. 2 above, art. 3(3).
30. Asylum Procedures Directive, n. 3 above, art. 27. The more far-reaching 'European safe third country' concept also allows rejection of the claim and return to some categories of 'safe' third countries without any substantive examination: Art. 36.
31. UNHCR, 'Provisional Comments on the proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, Council Document 14203/04', 10 Feb. 2005, comments on arts. 27, 35A (Note: In the finally-adopted Directive, art. 35A appears as art. 36).
32. 1 Dec. 2007: Asylum Procedures Directive, n. 3 above, art.43.
33. E.g., between Austria and Slovakia.
34. See also section 3.2 below.
35. These states include Sweden and Finland, who reportedly use the Dublin II procedure for close to 50% of claims. Official statistics have been furnished to the European Commission and are expected to be published in connection with the Commission's forthcoming report to the European Parliament and the Council on the application of the Dublin II Regulation under art. 28, Dublin II Regulation, n. 2 above.
36. UNHCR Working Paper, 'UNHCR's Three-Pronged Proposal', which includes elements for a strategy in regions of origin ('regional prong'), at domestic level in asylum states ('domestic prong'), and in the EU (the 'EU-prong'), 26 June 2003 .
37. The Hague Programme: Strengthening Freedom, Security and Justice in the European Union [2005] OJ No C 53/01 ('The Hague Programme'), para. 1.3, page 4.
38. The Hague Programme, n. 25 above, para. 1.3, page 4.
39. Tampere Conclusions, n. 12 above, para. 11.
40. The Tampere Conclusions called for the High Level Working Group to develop Action Plans for specific countries and regions, which would identify useful activities and potential project areas (Tampere conclusions, n. 12 above, para. 12). While the HLWG Action Plans had a limited lifespan, other Community funding programmes and budget lines have been used for migration and asylum projects in third countries which continue to have a significant impact in many cases.
41. 'UNHCR regrets missed opportunity to adopt high EU asylum standards', UNHCR Press Release, 30 Apr. 2004
42. UNHCR, 'Provisional Comments on the proposal.for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, Council Document 14203/04', 10 Feb. 2005, comments on arts. 27, 35A (Note: In the finally-adopted Directive, art. 35A appears as art. 36).
43. Asylum Procedures Directive, art. 27(1).
44. Asylum Procedures Directive, art. 36. This provision was colloquially referred to during the negotiations as the 'super-safe third country rule'.
45. Albania ' Algeria, China, Hong Kong, Macao, Morocco, Pakistan, Russia, Sri Lanka, Turkey and Ukraine.
46. Sri Lanka, Macao, Hong Kong, Albania, Russia.
47. EU General Affairs and External Relations Council Conclusions, 2 Nov. 2004, Council doc. 13588/04 REV 1 (Presse 295).
48. This applies particularly for states whose coastal 'neighbours' are a source of significant arrivals on their shores, notably Spain with respect to Morocco; Italy and Malta with Libya, and others.
49. A 16% fall was recorded in the number of asylum seekers registered in the EU in Jan. to Sept. of 2005, by comparison with the same period in 2004, and a 32% drop by comparison with 2003: UNHCR, 'Asylum Levels and Trends in Industrialized Countries - Third Quarter 2005', Jan. 2006, table 1. It is also little known that in 1992, Germany hosted 438,000 refugees, while in 2004 the number of refugee in the EU-25 reached 316,000. For more statistics, see .
50. European Parliament: Report by MEPs on the visit by the Confederal Group of the European United Left/Nordic Green Left (GUE-NGL) delegation to the Lampedusa detention centre, 28 June 2005.
51. After the resolution of the initial dispute over its landing, UNHCR sharply criticized the Italian authorities' subsequent response to claims by people who had arrived on the 'Cap Anamur', notably a decision to deport over half of the group before procedures to determine their protection needs had concluded. UNHCR Press Release, 'UNHCR criticizes handling of Cap Anamur asylum claims', 23 July 2005.
52. A first version of the UK Home Office paper emerged as 'A new vision for refugees', Feb. 2003, referred to in 'Safe havens plan to slash asylum numbers', The Guardian, 5 Feb. 2003. A later version, entitled 'New international approaches to asylum processing and protection' and presented to the European Council in Mar. 2003, was analysed in the Communication from the European Commission to the Council and the European Parliament, 'Towards more accessible, equitable and managed asylum systems' COM(2003)315 final, 3 June 2003.
53. Significant disagreement was reported among Member States. Those most outspoken against the proposals included Sweden, and initially, Germany. Those in favour of the UK ideas included Denmark and the Netherlands. For further detailed analysis of the UK proposals and reactions from states and other bodies, see G. Noll, 'Visions of the Exceptional: Legal and Theoretical Issues raised by Transit Processing Centres and Protection Zones' (2003) 5 European Journal of Migration and Law 3.
54. See also section 3.5 below.
55. UNHCR, Three-prong proposal, see n. 36 above.
56. Op-Ed by Ruud Lubbers, High Commissioner for Refugees, 20 June 2003
57. 'EU's "safe country" asylum plans attacked', The Guardian, 30 Mar. 2004.
58. UNHCR Press Release, 'UNHCR clarifies its new asylum proposals', 20 June 2003.
59. Conclusion 63, Presidency Conclusions, Brussels European Council, 20-1 Mar. 2003, Council doc.8410/03.
60. Communication from the European Commission to the Council and the European Parliament, 'Towards more accessible, equitable and managed asylum systems' COM(2003)315 final, 3 June 2003.
61. Commission Communication COM(2003)315, ibid., section V, points 1 and 5.
62. Presidency Conclusions, Thessaloniki European Council, 19 June 2003, conclusion 26.
63. European Commission, Communication to the Council and the European Parliament, 'On the Managed Entry in the EU of Persons in Need of International Protection and Enhancement of the Protection Capacity of the Regions of Origin: Improving Access to Durable Solutions' COM(2004) 410 final, 4 June 2004. The Communication discussed the outcomes of two independent studies procured by the Commission in late 2003 on the possibilities for expanded resettlement to the EU, and 'protected entry schemes' as potential mechanisms for improving systems for granting protection in the EU.
64. European Council for Refugees and Exiles ('ECRE), 'Comments of ECRE on the Communication from the Commission to the Council and the European Parliament: Towards a more accessible, equitable and managed international protection regime', 18 June 03
65. Amnesty International, 'UK/EU/UNHCR: Unlawful and Unworkable: Amnesty International's views on proposals for extraterritorial processing of asylum claims', 18 June 03, section 5, page 16.
66. Deutsche Presse Agentur 19 July 2004
67. Frankfurter Allgemeine Zeilung, 19 July 2004.
68. Mr Buttiglione's Commission candidature was subsequently rejected by the European Parliament for reasons related to his views on other matters, although some concern was expressed by MEPs at his apparent lack of emphasis upon refugees' rights.
69. 'Effektiver Schutz fuer Fluechtlinge, wirkungsvolle Bekampfung illegaler Migration - Ueberlegungen des Bindesministers des Innern zur Errichtung einter EU-Aufnahmeeinrichtung in Nordafrika', German Interior Ministry written press statement, 9 Sept. 2005.
70. UNHCR Press Release, 'UNHCR clarifies its new asylum proposals', 20 June 2003
71. Op-Ed by Ruud Lubbers, High Commissioner for Refugees, 20 June 2003
72. 'EU's "safe country" asylum plans attacked', The Guardian, 30 Mar. 2004
73. Amnesty International, 'UK/EU/UNHCR: Unlawful and Unworkable: Amnesty International's views on proposals for extraterritorial processing of asylum claims', 18 June 03.
74. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN doc. A/RES/39/46, 10 Dec. 1984 ('Convention Against Torture').
75. European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5, 213 UNTS 221, 4 Nov. 1950 ('ECHR').
76. Amsterdam Treaty, n. 5 above, art. 63(1).
77. Charter of Fundamental Rights of the European Union [2000] OJ No. C 364/ 01.
78. Convention Against Torture, n. 67 above.
79. ECHR, n. 68 above.
80. The Hague Programme, n. 37 above, para. 1.6.1.
81. An independent set of Council Conclusions on the subject was adopted exceptionally by the Ministers of Foreign Affairs of the EU, at the General Affairs and External Relations Council meeting of 2 Nov. 2004. This gesture was aimed at emphasizing that strengthened cooperation with other countries on asylum and immigration was not merely a Justice and Home Affairs priority, but a mainstream EU external relations aim.
82. The Hague Programme, n. 37 above, para. 1.6.2.
83. Communication from the European Commission to the Council and the European Parliament on Regional Protection Programmes, COM (2005) 388 final, 1 Sept. 2005 ('RPP Communication').
84. The Regional Protection Programme (RPP) initiative, according to the Commission Communication (ibid.), should be funded from the pre-existing 'Aeneas' budget line which supports many asylum and migration projects in third countries. No additional funding was allocated for the proposal, meaning that the funding available for the initial 'pilot' RPPs would be very limited, in EU terms.
85. RPP Communication, n. 76 above.
86. UNHCR Observations on the Communication from the European Commission to the Council and the European Parliament on Regional Protection Programmes [COM (2005) 388 final, 1 Sept. 2005], 10 Oct. 2005.
87. The Hague Programme, n. 37 above, para 1.3.
88. OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 Sept. 1969, 1001 UNTS 45.
89. See concerns expressed, e.g., in 'UNHCR concerned over continued forcible return of potential refugees from Libya', UNHCR press briefing 21 Sept 04
90. 'Italy: UNHCR Rome granted access at Lampedusa centre, but not in Libya', UNHCR press briefing, 8 Oct 2004
91. 'Italy: UNHCR deeply concerned about Lampedusa deportations of Libyans', UNHCR press briefing, 18 Mar. 2005
92. Amnesty International, 'Libya: Over 200 Eritrean nationals detained in Libya, facing forcible return', Al urgent action, 28 July 2004.
93. Reports emerged in 2005 of attempted expulsions by Morocco of 'illegal immigrants' to neighbouring countries, and people left abandoned in remote desert regions close to the border. Some of the problems are described in 'UNHCR asks states to respect access to asylum', UNHCR press briefing, 2 Sept. 2005
94. UNHCR still awaiting access to persons of concern in Morocco', UNHCR press briefing, 19 Oct. 2005
95. 'Mass relocation to uncertain locations for immigrants in Morocco after MSF highlights their plight', Médecins Sans Frontières Press Release, 11 Oct. 2005.