Non-refoulement is a concept which prohibits States from returning a refugee or asylum seeker to territories where there is a risk that his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.
In 1999, during the Tampere Summit, the Heads of States of the EU countries called for the establishment of a Common European Asylum System (CEAS) aiming to the harmonisation of asylum legislation. The attempts of harmonization initially developed with the Tampere programme and later with the Hague programme in 2004.
Subsequently, Member States reaffirmed their will to collaborate with the 2009 Stockholm Programme adopted by the European Council, establishing the political priorities in the area of freedom, security and justice for the period 2010/2014. In this occasion Member States committed themselves to create a common asylum policy (CEAS) by 2012 as it is provided by the Lisbon Treaty.
In order to have an efficient Common European Asylum System, which will have to be adopted by a qualified majority, Member States should consistently follow good procedures and should accept high standards of harmonisation with the amendment of their “asylum instruments”. Member States have to carry on the negotiations on the Dublin II regulation (for a more efficient procedure), the Long Term Resident Directive (which added beneficiaries of international protection to its scope), the Qualification Directive (to minimise diversity across Member States regarding the list of issues to take into consideration when assessing applications) , the Reception Conditions (for higher standards of reception conditions and limitation of secondary movements of asylum applicants ), the Eurodac Regulation (for the concerns on the use of data, the main question is whether asylum seekers fingerprints should be accessible to law enforcement services) and the Asylum Procedures Directive (for higher standards for Member States procedure), in order to establish a clear set of rules guaranteeing the respect of asylum seekers rights.
The negotiations should lead to a harmonised legislation which should guarantee high standards of protection for asylum seekers which are sometimes treated as illegal migrants and can't benefit from the protection they deserve. The lack of unity throughout Member states legislation has led to a malfunctioning system in which asylum seekers are not treated equally.
The negotiation on the efficiency of asylum seeking procedures seems to be a priority in the EU agenda, but Europe should maintain its international position of promoter of human rights by safeguarding the principle of international protection of refugees through the application of high standard human rights.
The current directive has two major drawbacks. It does not protect asylum seekers rights sufficiently and at the same time creates major disparities of treatment between Member States. Sylvie Guillaume,Member of the European Parliament, speaking about the 2005 asylum procedures directive.
The current process of reform on asylum procedure should take more into account the specific needs of asylum seekers. A good example of this willingness was demonstrated by the European Parliament vote (the 06/04/2011) in favour of a report on the measures that have to be taken towards people claiming asylum because of persecutions based on their sexual orientation or gender identity. According to this report they should be covered by the concept “asylum seekers with special needs” due to the situation of great vulnerability which they face. This will lead to a better management of the procedure (i.e.: trained officers, expert advice) and of the situation (i.e.: non-disclosure of personal circumstances). It should also limit the abusive or humiliating procedures to which some individuals have been subject to.
According to the UN refugee agency there are significant differences in the way EU Member States assess asylum applications. The research was based on the study of more than 1000 cases.
European countries (contrary to many other countries) grant asylum on individual assessments following the Asylum Procedure Directive. Therefore claims should be treated equally by the cooperating States and asylum seekers should have the same chances no matter where they apply in the EU.
However, the report showed that the Asylum Procedure Directive was not applied the same way in all Member States and sometimes was applied in ways that violated international refugee law.
- Applicants did not always have the chance to obtain personal interviews, or were not given enough time to prepare for interviews or to explain their claims.
- There are issues with interpreters (not always available and not always qualified).
- The reasons for decisions in individual cases were not always given and many claims were channelled into accelerated processes with reduced safeguards.
- Lists of so-called safe countries of origin varied widely and the process for this designation was not always transparent.
These are some of the problems identified in the report that could cause the refoulement of people entitled to international protection.
Reminder: Stockholm Programme
A Europe of responsibility, solidarity and partnership in migration and asylum matters: The development of a forward-looking and comprehensive Union migration policy, based on solidarity and responsibility, remains a key policy objective for the Union. Effective implementation of all relevant legal instruments needs to be undertaken and full use should be made of relevant Agencies and Offices operating in this field. Well-managed migration can be beneficial to all stakeholders. The European Pact on Immigration and Asylum provides a clear basis for further development in this field. Europe will need a flexible policy which is responsive to the priorities and needs of Member States and enables migrants to take full advantage of their potential. The objective of establishing a common asylum system in 2012 remains and people in need of international protection must be ensured access to legally safe and efficient asylum procedures.
European Alternatives believes that Europe urgently needs to harmonize its legislation with high standards of protection for refugees. This will guarantee the respect of the principle of non-refoulement of vulnerable people, maintaining high the European values of human rights. We also believe that the efficiency of the procedure with a clear distribution of roles between each state is crucial to enable each asylum seeker to obtain the fulfilment of his or her rights in a reasonable amount of time.
Dublin II regulation, http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l33153_en.htm
Status of Non-EU Member Country nationals who are long-term residents, http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l23034_en.htm
Conditions governing eligibility for refugee status or international protection (Qualification Directive), http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l33176_en.htm
Minimum standards on the reception of applicants for asylum in Member States (Reception Directive), http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l33150_en.htm
Europa, Transposition of the Asylum Procedures Directive, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/538
ECRE, Comments from the European Council on refugees and exiles on the European Commission proposal to recast the Dublin Regulation, 04/2009, http://www.ecre.org/files/ECRE_Response_to_Recast_Dublin_Regulation_2009.pdf