AGENDA

• Formation « Mission et fonctionnement d’Amnesty » - Samedi 11 septembre 09:30-16:30

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• Justice pénale internationale - Samedi 11 septembre 09:30-15:00

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• Atelier de formation « Introduction à la campagne Exigeons la dignité » - Samedi 18 septembre 09:30-11:00

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• Atelier de formation sur la mortalité maternelle - Samedi 18 septembre 11:15-12:45

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• Atelier de formation sur les bidonvilles - Samedi 18 septembre 13:30-15:00

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>Tout l'agenda

Ladies and gentlemen,

Let me first of all thank the EPC for giving me the opportunity to speak to a European audience about one of the most challenging issues facing the European Union today. This discussion could not be more timely. I am particularly honoured to have the opportunity to touch upon issues to which I have dedicated so much of my life.

The EU’s asylum policy has been widely discussed since the Commission published its Green Paper last year. New legislative proposals are expected soon and the upcoming French presidency is preparing the adoption of an EU Pact on Immigration and Asylum. We may not yet know what will come out of all this, but we can be sure things will be moving soon.

Whenever I bring up the question of asylum policies I realise very different things go through the minds of people in the audience. Some think very narrowly of political dissidents ; others think of people fleeing conflict or generalised violence ; a few think of migrants ; many think of terrorists and security. In their minds it’s all the same. This amalgamation of asylum, migration and security issues is rapidly becoming the most dangerous tenet of asylum policies. What is most dangerous about it is that asylum, migration and security are not weighed evenly. More and more, security concerns are creeping into and determining asylum and migration policies.

The EU is no exception to this trend. In Brussels and the Member States, debates on asylum and migration are distorted by both real and perceived risks for security – physical security that brings up fear of terrorism and other crimes ; economic security that raises fear of mass migration ; and what I would call societal or identity security which offsets a general fear of the ‘other’. Once the politics of fear take over, human rights are inevitably at risk and the foreigner in our societies often becomes the first victim. I believe the biggest challenge facing EU policy makers is to avoid the security ‘trap’ and keep sight of the human beings behind abstract concepts like asylum seeker, refugee or migrant.

The way to do that ? – By upholding human rights obligations no matter what. It is never too much to recall that all EU member states are bound by the UN Convention on Refugees. They are all bound by the ECHR and various other instruments and have adopted the EU Charter on Fundamental Rights, explicitly acknowledging a right to asylum and reaffirming the principle of non-refoulement. The EU asylum policy should clearly build on existing standards under international law and aim for high standards of protection throughout the EU.

Let me try to elaborate on how all this plays out in the EU’s asylum and migration policies from Amnesty International’s point of view.

At the closing of the first phase of harmonisation in 2005, the EU had put in place legislation to harmonise key asylum procedures and reception conditions, and criteria on who could get refugee status or subsidiary protection. It had also established the Dublin System to determine which Member State is responsible for processing an asylum application – a measure designed to guarantee that all applications are examined and to avoid what is known as ‘asylum shopping.’

While recognising that a lot has been achieved in the 15 years since Member States started cooperating in this field, Amnesty International is also quite critical of several aspects of this first wave of legislation and its application. In certain respects, Member States failed to go beyond the “lowest common denominator”. They seemed more interested in bringing their own restrictive national practices to EU level, rather than working together towards a common approach to really enhance protection for asylum seekers and refugees. This is particularly worrying because this first wave of legislation and the way it’s being implemented is the basis for the EU’s Common European Asylum System.

The point of harmonising asylum policies and building a Common European Asylum System should be to ensure fairness across the EU territory – all asylum claims are processed in the same way and all asylum seekers are guaranteed the same treatment wherever they apply for refugee status. But the reality today is that this is not the case. Let me give you some examples.

The practice with Iraqi asylum seekers illustrates how the same group of people, fleeing the same situation, can be either almost systematically denied refugee status or almost systematically granted refugee status – depending on which EU country they are in. In Germany and Sweden, around 80% of these claims are approved ; in the UK only 12% are approved. This is not only inherently unfair, it is discriminatory. It places asylum seekers at risk of refoulement and other human rights violations. The case of Mehdi, an Iranian national persecuted because of his homosexuality, illustrates these risks vividly. Having seen his asylum claim rejected in the UK, Mehdi decided to try his luck in the Netherlands, a Member State which has in general granted a subsidiary form of protection in these cases. However, the Netherlands decided to return Mehdi to the UK, exposing him to refoulement and serious abuse back in Iran – Amnesty International has recently documented executions of homosexuals in Iran.

Finally, I would refer to the treatment of asylum seekers in Greece. Amnesty International has received reports of lack of access to asylum procedures ; of interviews carried out without an interpreter ; of arbitrary detention ; of lack of access to lawyers and medical care. The situation was such that some Member States have suspended returns to Greece and others are considering similar measures.

The European Commission and the Member States are also trying to improve harmonisation of asylum policies through practical co-operation. As this is still in an early stage it is too early to fully assess its impact but at the end of the day the basis for such cooperation is existing EU legislation. However, as long as the legislation is deficient, practical co-operation will not achieve much. Indeed, it risks entrenching procedures and practices that jeopardise the protection of asylum seekers.

Some of this legislation was adopted in the aftermath of the 9/11 attacks. Security and counter terrorism, if not already high on the agenda, rapidly became a priority. Asylum and migration policies were seriously affected. At EU level this is best illustrated by the way the Qualification Directive defined the provisions that exclude people from being entitled to refugee and subsidiary protection status. These exclusion clauses are much broader and open to interpretation by national authorities than the UN Convention on Refugees ever envisaged. As far as refugees are concerned, being a danger to the national security of the country of refuge is used as an exclusion ground. Also, an individual can be excluded from subsidiary protection for committing a serious crime but the gravity and place of such a crime is open for interpretation. Together these make it easier for governments to deny refugee protection for the wrong reasons. And in fact, recent UNHCR research has indicated a trend of increased use of exclusion clauses in Germany.

For anyone in need of further examples on how security and the war on terror risks undermining the protection rationale that should underpin the Common European Asylum System, here is another case : the proposal to give law enforcement agencies access to the EURODAC database. Set up to improve the Dublin system, EURODAC essentially contains only data on asylum seekers and irregular migrants - all Member States are obliged to fingerprint every asylum seeker 14 years or older. This information alone is useless for law enforcement agencies. So, we can only assume EURODAC will be reformulated to include additional data such as name and country of origin. This not only contradicts the basic principle of data protection (i.e. purpose limitation), but it is particularly worrying that the thinking behind it suggests an automatic link between asylum seekers and migrants, on one hand, and terrorism and other crimes, on the other. This creates a general presumption that all third country nationals are potentially criminals. It is discriminatory and contains a potential for stigmatisation that can only lead to racism and xenophobia. If taken in the context of increased information-sharing with third country law enforcement agencies, it risks endangering the lives of asylum seekers and the families they leave behind.

Members States were able to easily prioritise their national restrictive practices and security concerns over their human rights obligations because they were adopting this legislation by unanimity and without regard to the views of the European Parliament. In the adoption of any new legislation, the European Parliament can make use of its new co-decision powers to bring human rights back to the centre of EU decision making in this field. I hope the Parliament rises to this challenge. If it doesn’t, the EU risks continuing a trend where harmonisation is clashing with the protection needs of asylum seekers.

Again, harmonisation should always remain a means to an end, not an end in itself. There is no point in harmonising asylum policies of the EU Member States for the sake of harmonisation. As it stands now, there is a real risk of undermining existing international standards while developing such a common approach at EU level.

Let me touch now on the ’migration control’ part of this debate. At the risk of stating the obvious, in exercising their right to control access to their territory, governments are bound by international law and standards. They are also obliged to respect and protect the human rights of all individuals under their jurisdiction, irrespective of their legal status.

The EU has been developing measures for coordinating the management of migration flows and its external border, with FRONTEX as a crucial instrument in this process. The EU’s overall approach to this is clearly security-driven. The EU and its Member States are pushing control beyond the physical borders of the EU, further south and further east. It is patrolling the territorial waters of Senegal, carrying out rescue operations in the Mediterranean and Aegean seas and increasing cooperation with transit countries in the field of migration. Engagement in such operations is arguably to prevent people from entering dangerous and often fatal journeys to Europe. But we must wonder if the ultimate objective of these practices is really to prevent people, including potential refugees from even arriving at European ports and cities. Whatever the reason, however, the point is that the human rights of migrants and asylum seekers are seriously at risk in this process. Just to give you an example, Amnesty International recently interviewed 13 Afghan nationals trying to reach Greece by sea. They told us they were ill-treated by uniformed men – allegedly Greek coast guards - and pushed back into Turkish waters in unfit boats.

Current EU border management practices do not include clear mechanisms to ensure access to fair asylum procedures for those in need of protection and to ensure that fundamental human rights of migrants are respected. They also contribute to preventing people from leaving countries with seriously tainted human rights records, including transit countries. Amnesty International has frequently reported violations of migrants and asylum seekers’ human rights in countries such as Morocco, Libya and Algeria. They include long term arbitrary detention, collective expulsions and indeed refoulement. Helping transit countries strengthen their capacity to manage asylum and migration is obviously very positive. But EU policies need to factor in that it will take a long time for many of these countries to have systems capable of ensuring even minimum protection in line with international law.

The most recent ideas of the Commission for the management of the EU’s external border confirm the security-driven approach to border management. They rely heavily on measures like biometric identifiers, new data bases, increased pre-entry screenings and an automatic alert system on overstayed visas. These proposals reflect an obsession with collecting and storing information on third country nationals and an almost religious belief in technology as the ultimate solution for border control. If any doubts remained that the EU’s asylum and migration policies are being dominated by security and counter terrorism concerns, they are now vanished - EU officials have stated clearly that the current package of measures is also meant to help in the fight against terrorism.

The devil, they say, is in the detail. Will this system allow the EU to manage migration in a way that respects human rights ? Or will it create a witch-hunt for anyone irregularly staying in EU territory ? Will it be applied in a non-discriminatory way ? Or will it just keep out anyone fitting generalised and biased profiles of potential risk to internal security or public order ? Will it contribute to improved security ? Or will it rather increase the feeling of insecurity by feeding racism and xenophobia ?

Finally, the EU has increasingly been discussing a common approach to the return of third country nationals. Amnesty International has serious problems with current proposals for the so-called ‘returns directive’. You need not worry – I will not get into details right now. I will, however, underline our concern about a trend for using restrictive measures, such as excessively long detention periods for nationals awaiting return. From Amnesty’s point of view, detention should only be used in exceptional circumstances and according to the principle of proportionality. When used, it needs to be limited to the minimum possible period of time. Current proposals to make it possible to detain migrants, who have committed no crime for a period up to 18 months are simply unacceptable.

Parallel to this, the EU has also been discussing the question of removal of foreigners, including asylum seekers that pose a security threat but risk torture or ill-treatment upon return. Some Member States have argued in the Strasbourg Court that both elements needs to be balanced - the risk of harm if the person is sent back and the risk for the community if the person is not sent back. The Court in its recent Saadi case was very clear : such argument is misconceived. The prohibition of torture and other ill-treatment is absolute and this includes the prohibition of transferring a person to a place where he or she will be at risk of such treatment. What keeps surprising me is that in 2008, in the heart of Europe, this still needs to be restated by a court of law. What shocks me even more is that States have not given up attempts to circumvent this absolute prohibition by relying on so-called « diplomatic assurances » from the state of destination that such person will not be tortured upon return. Such assurances are not worth the paper they are written on. Yet the debate on the legitimacy of this practice has hit the EU level as well. There is little doubt about the position the EU should take in this debate. As a global actor for the protection of human rights, it can not but strongly reject any use of diplomatic assurances as a means to remove alleged terrorist suspects from its territory.

I think I have highlighted the potential costs to individuals and the EU of securitydriven asylum and migration policies. What I have not been able to find clearly stated anywhere are the gains of such an approach or its consequences in the long term. Legality, justice and fairness are the values that need to orient policy makers in building a Common European Asylum System – if you are to build a Common European Asylum System that upholds human rights and refugee law. In Tampere, Member States reiterated the importance the EU attaches to absolute respect for the right to seek asylum. They agreed to ‘work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution.’ As a Union based on values and respect for human rights, the EU has both the moral and legal duty, as well as the means, to set an example and host those whose fundamental rights have been violated. The growing obsession in Europe with security concerns and the equally growing perception of the foreigner as a threat should never divert the EU from that mission.

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