The right to seek - Revisited. on the un human rights declaration article 14 and access to asylum procedures in the EU

European Journal of Migration and Law

Volumn 10, Issue 4, 2008, Pages 439-459

  Gammeltoft Hansen, Thomas ^a   Gammeltoft Hansen, Hans ^b  

^a Danish Refugee Council   (Denmark)

^b Parliamentary Ombudsman ^*

Author keywords

Art. 14; Carrier sanctions; Drafting history; EU asylum and immigration policy; Extraterritorial migration control; Immigration liaison officers; Interdiction; Right to an asylum procedure; Universal Human Rights Declaration; Visa

Indexed keywords

EID: 68249137012     PISSN: 1388364X     EISSN: 15718166     Source Type: Journal    
DOI: 10.1163/157181608X380219     Document Type: Article

References (74)

1. See e.g. remarks by Erika Feller, Assistant UN High Commissioner for Refugees, Public Hearing on the Future Common European Asylum System, 7 November 2007, printed in International Journal of Refugee Law, 2008, 20(1), 216-220;
2. European Council for Refugees and Exiles, Defending Refugees, Access to Protection in Europe, December 2007.
3. Such critic and scepticism has been fairly widespread in Denmark, but also in other European countries such as Norway and United Kingdom. For a survey, and refutation, of the critical points see Isi Foighel, Reflections of a Former Judge of the European Court of Human Rights, in: Lagoutte, Sano and Scharff Smith (eds.), Human Rights in Turmoil, Leiden: Martinus Nijhoff, 2007, pp. 271ff.
4. See also, inter alia, Lord Mackay of Clashfern, The margin of appreciation and the need for balance, in: Mahoney, Matscher, Petzold and Wildhaber (eds.), Protecting Human Rights: The European Perspective. Studies in Memory of Rolv Rysdal, Köln: Heymanns 2000, pp. 837ff;
5. C.A. Gearty, "Reconciling Parliamentary Democracy and Human Rights", Law Quarterly Review, 2002, 118, pp. 248ff;
6. Marie-Bénedicte Dembour, Who Believe in Human Rights, Cambridge University Press, 2006, pp. 232ff;
7. Ida Elisabeth Koch and Jens Vedsted-Hansen, International Human Rights and National Legislatures - Conflict or Balance, Nordic Journal of International Law, 2006, 75, pp. 3ff.
8. Other authors have dealt with the same perspective, i.e. the direct relationship between Article 14 and the asylum practice of the states, e.g. Alice Edwards, International Journal of Refugee Law 2005, 2, pp. 293ff;
9. Colin Harvey, European Human Rights Law Review 2004, 1, pp. 17ff
10. Morten Kjærum, in: Alfredsson and Eide (eds.), The Universal Declaration of Human Rights, A Common Standard of Achievement, The Hague: Martinus Nijhoff, 1999, pp. 279ff;
11. Helen O'Nions, Web Journal of Current Legal Issues, 2006, webjcli.ncl.ac.uk/2006/issue2/onions2.html.
12. Article 33 thereby in particular added a certain substantial-legal content to the procedural right established in Article 14 of UDHR.
13. One illustrative example among many others is the UNHCR Ex.Com. Conclusion no. 82, 1997, where the Executive Committee (section b) "reaffirms that the institution of asylum derives directly from the right to seek and enjoy asylum set out in Article 14 (1)".
14. In this connection, see also Johannes Morsinck, Human Rights Quarterly 1993, pp. 357ff
15. especially pp. 358 and 383-389.
16. Particularly in connection with the interpretation and implementation of Article 33 of the Refugee Convention on non-refoulement, cf. previous note 4.
17. The Drafting Committee report is doc. E/CN.4/21; the drafts mentioned below are included as appendices to the report, including the Committee's final proposal to CHR (Annex F).
18. E/CN.4/57, p. 9.
19. During the same period, a Working Parry under CHR prepared the draft for a Human Rights Convention; the report of this work concluded with the following recommendation: "This Working Party recommends that the Commission on Human Rights should examine at an early opportunity the question of the inclusion of the right of asylum of refugees from persecution in the Bill of Human Rights or in a special convention for that purpose". - E/CN.4/56, p. 15.
20. E/CN.4/77/AnnexA, p. 4.
21. E/CN.4/85, p. 24.
22. E/CN.4/AC.1/SR36, pp. 13ff.
23. E/CN.4/AC.1/SR.37, p. 8.
24. E/CN.4/AC.1/SR.37, p. 14.
25. E/CN.4/SR. 56-57.
26. E/CN.4/SR.56, p. 7.
27. Cf. also Morten Kjærum, op. cit., p. 282.
28. E/CN.4/SR.57, p. 11.
29. See Yearbook of the United Nations 1947-48, pp. 576ff.
30. Third Committee, 121st-122nd meetings, 3 November 1948, Summary records, pp. 327ff. The proposed amendments are listed in A/C.3/285/Rev. 1.
31. See in this connection Morten Kjærum, op. cit., p. 283.
32. Third Committee, Summary records, p. 338.
33. Third Comminee, Summary records, p. 330.
34. General Assembly; Third session, 180th-183rd Plenary meetings, 9-10 December 1948, Summary records, pp. 852ff.
35. General Assembly, Summary records, p. 933.
36. GA Res. 2312 (XXII) of 14 December 1967.
37. Vienna Declaration and Programme of Action of 25 June 1993, Article I, 23: "The World Conference on Human Rights reaffirms that everyone, without distinction of any kind, is entitled to the right to seek and to enjoy in other countries asylum from persecution, as well as the right to return to one's own country. In this respect it stresses the importance of the Universal Declaration of Human Rights, the 1951 Convention relating to the Status of Refugees, its 1967 Protocol and regional instruments.
38. EP v Council, ECJ C-540/03, not yet reported.
39. See also Steve Peers, EU Justice and Home Affairs Law, Oxford University Press, 2006, pp. 68f.
40. Guy Goodwin-Gill, The Refugee in International Law, Clarendon Press 1996, p. 333.
41. Aristide Zolberg, Matters of State, in: Charles Hirschman, et al. (eds.), The Handbook on International Immigration, Russell Sage Foundation, 1999, pp. 71-93.
42. Regulation 2317/95, 25 September 1995.
43. Respectively Article 1 and Annex I as well as Article 2 and Annex II of Regulation 539/2001, 15 March 2001, as amended.
44. Taiwan and the Palestinian Territories.
45. - 2005/C 326/01, section V.
46. See note 33, Annex 3. Currently, this applies to Angola, Afghanistan, Bangladesh, The Democratic Republic of Congo, Eritrea, Ethiopia, Ghana, Iraq, Iran, Nigeria, Pakistan, Somalia and Sri Lanka. Additional countries may appear on the lists of individual states, at the moment especially Liberia and Sudan.
47. Such an exemption possibility was in fact mentioned in the corresponding provisions in the Schengen Convention, which forms the basis of the Visa Regulation. Article 5 (2) here permits the states to suspend the visa requirement when this is considered necessary due to national interests or international legal obligations. See further Gregor Noll, Negotiating Asylum., The Hague: Martinus Nijhoff, 2000, p. 478.
48. Article 3 of the Regulation, however, contains the possibility of visas for recognised refugees and stateless persons, but does not include asylum-seekers whose case has not yet been processed. Notably, Article 5 (2) of the Schengen Convention from which the common visa rules are derived included a clause specifying that restrictions on entry "shall not preclude the application of special provisions concerning the right of asylum".
49. This follows from Article 1 of the convention. As discussed below, however, this does not bar access to similar protections afforded under other human rights instruments.
50. Other initiatives consist e.g. in the deployment of European border authorities in airports in third countries and, with less effect, criminalisation of persons who organise irregular entry - so-called human smugglers.
51. This was regulated in a supplementary directive, 2001/51/EC, 28 June 2001, Article 4.
52. See Antonio Cruz, Carriers Liability in the Member States of the European Union, CCME Briefing Paper no. 17, Brussels, 1994, pp. 11ff.
53. - 2001/51/EC, 28 June 2001.
54. In 2003, Ireland thus refused to drop carrier sanctions in cases involving asylum-seekers on the grounds that such a practice would make carrier sanctions useless and encourage more false asylum applications. See James Hathaway, The Rights of Refugees under International Law, Cambridge University Press, 2005, p. 385.
55. Gregor Noll, cited above note 37, p. 177.
56. - 337/200426 February 2004, Article 2.
57. Under bilateral agreements, liaison officers may however also exercise migration control more directly. This is the case in the arrangements between the United Kingdom and France, allowing the UK Border Agency access to perform controls in designated migration zones at Boulogne, Calais and Dunkerque. Similarly, UK liaison officers have been seen to exercise direct migration control at airports of non-EU countries. See European Roma Rights Centre and others v. Immigration Officer at Prague Airport and another. House of Lords. UKHL 55. 9 December 2004.
58. - 2000/483/EC, 23 June 2000, see especially Article 13.
59. See also Thomas Gammeltoft-Hansen, Outsourcing Migration Management: EU, Power and Immigration Policy, DIIS Working Paper, no. 1, 2006.
60. Press release, 19 December 2006, available at http://www.frontex.europa. eu. No directly comparable figures have so far been released for 2007 or 2008.
61. Sandra Lavenex, Shifting Up and Out: The Foreign Policy of European Immigration Control, West European Politics, no. 2, 2006, p. 340.
62. The same dynamic has been evident in the EU enlargement towards the east. Although a strengthening of the border control was a sine qua non for admission, the new member states have undoubtedly also themselves been interested in securing both border control and refoulement agreements in relation to their neighbours towards the east, as they might otherwise risk being left with a disproportionately large asylum-burden because of the Dublin system. See generally Rosemary Byrne, Gregor Noll and Jens Vedsted-Hansen (eds.), New Asylum Countries Migration Control and Refugee Protection in an Enlarged European Union, Kluwer Law International 2002.
63. Such "exit control" may however constitute an infringement of Article 12 (2) in the Convention of Civil and Political Rights, which lays down that all individuals have the right to leave any country in which they find themselves.
64. See e.g. Article 1 of European Convention on Human Rights, Article 2 (1) of the International Covenant on Civil and Political Rights, and Article 2 of the Convention on the Rights of Child.
65. See also European Roma Rights Centre and others v. Immigration Officer at Prague Airport and another. House of Lords. UKHL 55. 9 December 2004.
66. For an assessment of this issue and an argument in favour of extending extraterritorial jurisdiction on a functional basis, see Thomas Gammeltoft-Hansen, Extraterritorial obligations under international refugee law, in: Mark Gibney and Sigrun Skogly (eds.), Extraterritorial Human Rights Obligations, University of Pennsylvania Press, forthcoming.
67. A notable exception being the Comprehensive Plan of Action implemented in South East Asia in the early 1980s. See e.g. Alexander Betts, International Cooperation Between North and South to Enhance Refugee Protection in Regions of Origin, Refugee Studies Centre, working paper no. 25, 2005.
68. While UNHCR has only advocated more support to regional asylum countries as a supplement to the Western asylum-tradition, others have proposed more wide-ranging initiatives, where protection and asylum-procedures in the local areas to a greater extent replace corresponding requirements in regional asylum countries to a greater extent. See especially the contributions in James Hathaway (eds.), Reconceiving International Refugee Law, The Hague: Kluwer Law International 1997.
69. UK Home Office, New Vision for Refugees, London, 7 March 2003.
70. Gregor Noll et al., Study on the Feasibility of Processing Asylum Claims Outside the EU Against the Background of the Common European Asylum System and Goal of a Common Asylum Procedure, Brussels: The European Commission 2003. Quote from p. 5.
71. See Gregor Noll, "Seeking Asylum at Embassies: A Right to Entry under International Law", International Journal of Refugee Law, 2005, 3.
72. Gregor Noll et al., Study on the Feasibility of Processing Asylum Claims Outside the EU Against the Background of the Common European Asylum System and Goal of a Common Asylum Procedure, Brussels: The European Commission 2003. p. 89.
73. These figures are from the AENEAS framework, which has been the EU's main budget for support of third countries in relation to migration. The total budget in 2006 was 40.7 million Euro.
74. Own italics and translation. Quoted in Alexander Betts, International Cooperation Between North and South to Enhance Refugee Protection in Regions of Origin, RSC Working Paper, Oxford University, 2005, p. 15.