Refugee Protection in the framework of the Common European Asylum System

Abstract: The foundation of International Refugee Law was laid down in the early 1950s by the creation of the UNHCR and the Geneva Convention of July 28 1951Relating to the Status of Refugees (hereinafter the Geneva Convention) and its 1967 Protocol Relating to the Status of Refugees. Refugees and asylum seekers are not only protected through the relatively limited refugee law but also through general human rights instruments. The most significant Convention in Europe is the European Convention on Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter the ECHR). The Member States are committed to the ECHR and the 1951 Geneva Convention, which are binding instruments under international law. These instruments are the legal framework for community action in the field of asylum and policy. Western Europe saw a great number of protection seekers to and within it since 1985. After a decade of steady growth, the number of asylum applications took a sharp turn upwards at the end of eighties. Within the EC, applications increased almost tenfold in the period between 1985 and 1992. The peak of protection claims in 1992 was unprecedented in the post-war period: almost 700 000 protection seekers sought refugee in European countries. Statistics show that the vast majority of protection seekers originated from European countries, one of the main causes being the conflict in Former Yugoslavia. Western European began to reinforce and to diversify multilateral institutions seized with migration and protection issues. Western Europeans put the asylum issues into the European integration process. Steps by steps, the European integration moved from the so-called 1985 White Paper, the Schengen process, the Maastricht Treaty and, the Treaty of Amsterdam and, finally the Convention for Europe. It is not easy to catch the European integration because it is a complex thing. I am not going into details about all these European instruments. I am going to focus on various fundamental changes brought by the Amsterdam Treaty. The latter entered into force on May 1999 and presently governs the multilateral co-operation on asylum and immigration in the Union. The establishment of a Common European Asylum System (CEAS) has become a priority in the European Union. This priority has its legal base in the Treaty of Amsterdam, which moved the issue of asylum from the third pillar to the first pillar where EU institutions play a prominent role. The fundamental change brought about by the Amsterdam Treaty is that influential tools of Article 251 EC Treaty, such as regulation, directives and decisions, are available to use for harmonising EC asylum policy. Protocols to the Treaty give the UK, Ireland and Denmark possibility to ''opt out'' of participating in these measures. The ability to ''opt out'' means that adopted measures or interpretative decisions in the area of asylum, immigration and visa does not apply to them. My work focuses on the development of a Common European Asylum System. It explains and examines the progress that has been made until recently in agreeing two pieces of the EU law that will make up the first phase of the CEAS: the Asylum Qualification Directive and the Asylum Procedures Directive. Article 63(1c) EC Treaty obliges the Council to adopt minimum standards with respect to the qualification of third country nationals as refugees. The Asylum Qualification Directive has been adopted and consists only of minimum standards, which means that the Member States can have more liberal rules on the definition of refugees. This is contrary to the idea of a harmonised refugee definition under the 1951 Geneva Convention in Community law. It is difficult to see how agreements can be reached on the other directives without deciding whom they apply to. The aim of the harmonization is to ensure that laws and policies of the Member States are harmonized to provide a minimum level of protection to persons determined to be Convention refugees or beneficiaries of subsidiary protection and prevents refugee flows to certain Member States based solely on differing levels of protection in their legal framework. The Asylum Procedures Directive lies in the heart of the asylum system. The final provisions are still under discussion. The text represents improvements of procedures standards in some areas, but still allows for practices which put refugees in danger, hence, safe country of origin, safe third country practice and accelerated procedures with insufficient legal and procedure safeguards to prevent refoulement are all allowed. At this level, the European Union diverts from international principles such as the principle of non-refoulement, inter alia, when it comes to the extensive possibilities to derogate from the principle of suspensive effect of appeals, allowed under the Asylum Procedures Directive, and in some certain cases of border procedure where no minimum principles or guarantees appear to apply and access to the asylum procedure can be denied altogether. The purpose of this thesis is to analyse the impact of the CEAS on refugee protection in Europe. More specifically, this work highlights the relation between domestic asylum reform and European co-operation and investigates the real scope for a Common European Asylum System in France. I have chosen France as a country, which applies a very restrictive asylum policy. France interprets very restrictively the '' agents of persecution'' and adopts the concepts of '' safe country of origin'', '' internal asylum'', and implements the simplified procedures in ''manifestly unfounded'' cases and detains the protection seekers in administrative retention centres. As regard the procedures, the asylum applications do not require a personal interview with an applicant and a negative decision allows for an immediate execution of the expulsion order. As far as appeals are concerned, they can be lodged, but they have no suspensive effect and have to be made outside the territory. Although the question of asylum seekers from the so-called '' safe countries of origin'' in accordance with the 1992 London Resolutions is not addressed in the French law, accelerated procedures have been adopted by the OFPRA, which effectively implements these Conclusions. The Schengen and Dublin Conventions and the 1992 London Resolutions marked a radical change in the French domestic asylum policy. The implementation of these European instruments occurred in the form of highly symbolic 1993 constitutional reform of the right to asylum. The effects of the Schengen /Dublin Conventions and the London Resolutions on the system of the refugee protection in France have been three-fold: (1) Asylum policies have moved closer to the field of immigration control and asylum seekers have been increasingly subsumed under instruments aimed at the fight against illegal immigrants. (2) The impact of the executive and particularly the interior ministry on the asylum system has been strengthened vis-`a -vis the traditional agencies in charge of the asylum procedure&semic (3) The impact of the judicial on the asylum procedure has been weakened. The analysis of legislative measures that France has adopted so far regarding the common definition and the criteria for qualification as a refugee and the standards of asylum procedures gives a mixed picture of the governmental policy vis-à-vis the European Common Asylum System. Now, there is a big discussion in the French Senate on a new right of asylum. The bill on a new right of asylum contains many changes that reflect a clear Europeanization of French refugee protection. It appears that the provisions of the EU Asylum Qualification Directive inspire the French bill on a new right of asylum. The provisions in these Directives are only minimum rules, but even minimum rules need to be interpreted in a uniform way. The Treaty of Amsterdam has accredited the ECJ to interpret and rule on the validity of Community instruments adopted in the field of asylum. The question of uniform harmonisation of the refugee definition will be one of the most important elements of the European harmonisation process where the ECJ will have an important role through its binding interpretations of Community rules. The most important work of the ECJ is its jurisdiction to give '' preliminary rulings'' under Article 234 EC treaty. The question can be raised whether the existing procedure established by the Amsterdam Treaty is adequate enough to provide for an efficient judicial review of an individual's rights in asylum matters. The Asylum Qualification Directive and the Asylum Procedures Directive are not compatible with International Refugee Law and Human Rights Law. Asylum Community Law must be based on the various international obligations affecting the EU in the areas of General International Law, International Law on Human Rights and Refugee Law. Specifically, those EU Directives must follow the provisions contained in the 1951 Geneva Convention and in the ECHR. The failure to effectively standardize practices to ensure equitable treatment of asylum seekers in the European Union has created one of the most significant challenges to refugee protection. Meanwhile, Member States continue to reduce and violate the well-established protections principles, such as the principle of non-refoulement and the right to suspensive effect on appeal. This is the case of practice and refugee protection in France. Furthermore, the possibilities that an asylum seeker would be able to challenge any rules of the Asylum Qualification Directive or the Asylum Procedures Directive through remedy under the ECJ are very limited. These limitations currently imposed on the opportunity to request an ECJ preliminary ruling should be lifted in order to allow the ECJ to cope with the applications lodged by asylum seekers in relation with their claims. The European Charter of Fundamental Rights represents a new era in the future of the Community and should be, de lege ferenda, incorporated into the Constitution for Europe so that the Community pursue the Human Rights implications of its border-free Single Market project.