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Overview of asylum developments in the EU

As political and economic co-operation has developed between the member states of the EU, the necessity of a common approach to issues such as immigration, border controls and asylum policy has become apparent.

The Single European Act of 1986 identified the free movement of persons as one of the four main elements of the single market; it implies the dismantling of internal borders between member states and agreement on how to control the external borders of the Community. Then in 1992 the Maastricht Treaty defined these subjects as matters of common interest to Member States and created a limited role for the institutions of the Union in creating policy and legislation.

Prior to the Amsterdam Treaty however, joint action on asylum issues has generally been taken by member states acting through intergovernmental agreements. The Schengen Agreement and Convention and the Dublin Convention were the main binding instruments to have come about during this period; others included regulations setting out a uniform format for visas and drawing up a list of third countries whose nationals required visas to enter a member state. Other aspects of European asylum policy were based on instruments with no legal weight (resolutions, conclusions and recommendations), for example the London Resolutions of 1992 which set out rules for returning asylum seekers to safe third countries; and the 1996 Common Position agreeing on the definition of the term "refugee" within the meaning of the Geneva Convention of 1951.

The European Council has also set up a High Level Working Group on Asylum and Migration which produces "action plans" for various migrant and refugee-producing regions of the world. They tend to emphasise the need to contain refugees in their region of origin by addressing the causes of flight and by providing aid locally.

The measures jointly adopted by Member States as part of the Amsterdam process of setting minimum standards so far cover visa obligations, carrier sanctions, the establishment of the EURODAC fingerprinting system, temporary protection, the reception of asylum seekers (at the time of writing early May 2002 a political agreement had been reached) and the establishment of a European Refugee Fund. So far the question of how asylum seekers are able legally to access protection in the EU, without for example resorting to traffickers, remains inadequately addressed.

Under the Amsterdam Treaty asylum and immigration have been moved from the "third pillar" - where unanimity of member states is required in decisions and the decision-making process is inter-governmental - to the "first pillar" where the EU institutions play a larger role, namely the Commission has the sole right of initiative i.e. the sole right to propose legislation and the Council of ministers can make decisions by qualified majority voting. There is however to be a 5 year transitional period from the entry into Force of the Amsterdam Treaty during which the Council maintains the right alongside the Commission to initiate legislation on immigration and asylum matters and decisions are still made on the basis of unanimity in the Council.

The entry into force of the Amsterdam Treaty on May 1, 1999 marked a new stage in EU asylum policy. It provides for the establishment of an "area of freedom , security and justice" and gives the Union Institutions new powers to develop legislation on immigration and asylum matters. For the first time it is possible to talk meaningfully of a European Asylum Policy.

Within 5 years the Council must adopt measures defining:
- The Member State responsible for examining an asylum claim.
- Minimum standards on the reception of asylum seekers.
- Minimum standards on the qualification of third country nationals as refugees and beneficiaries of subsidiary protection.
- Minimum standards on procedures for granting and withdrawing refugee status.
- Minimum standards for giving temporary protection.

Measures must also be adopted (though not within 5 years) on "burden-sharing" between Member States. In September 2000, the European Refugee Fund was set up for this purpose.

At the Tampere European Council of 1999, the EU declared its intention to establish a Common European Asylum System based on the full and inclusive application of the Geneva Convention. ECRE welcomed this approach but was concerned that, as the details of the system were elaborated, there would be pressure to adopt standards at the lowest common denominator.

Protocols to the Treaty state that the UK, Ireland and Denmark can opt out of participating in these measures. A further protocol effectively removes the right of an EU citizen to apply for asylum in another EU State, although the State concerned may choose to examine such an application. ECRE, along with UNHCR, believe this protocol represents a serious threat to the international principles of refugee protection and disputes the assertion that it is in accordance with the 1951 Convention. See ECRE's compilation The Tampere Dossier (May 2000).

On another front, the EU has agreed on a Charter of Fundamental Rights at the European Council in Nice on December 2000, which, includes a right to asylum. ECRE made representations to the drafting body (the Convention) on the content of this right with a view to ensuring that it applies to both EU citizens and third country nationals. The article of concern to ECRE is Article 18 of the Convention which reads "The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community"