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«INSTITUT EUROPÉEN DE L’UNIVERSITÉ DE GENÈVE COLLECTION EURYOPA VOL. 70- 2011 The protection of refugees and their right to seek asylum in the ...»

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INSTITUT EUROPÉEN DE L’UNIVERSITÉ DE GENÈVE

COLLECTION EURYOPA

VOL. 70- 2011

The protection of refugees and their right

to seek asylum in the European Union

Mémoire présenté pour l’obtention du

Master en études européennes

par Livia Elena Bacaian

rédigé sous la direction de Nicolas Wisard

Jurée : Giselle Toledo

Genève, le 26 janvier 2011

Table of Contents

Abstract

List of Tables and Figures 2 Acronyms and Abbreviations 3 Introduction 4 Chapter I Main concepts – pertinent definitions

1.1 Refugee 10

1.2 Asylum Seeker 17

1.3 Person Eligible for Subsidiary Protection 18

1.4 Economic Migrant 19

1.5 Conclusion: Finding the link between Refugees, Persons Eligible for Subsidiary Protection, 20 Asylum Seekers and Economic Migrants Chapter II The Right to Asylum Under EU Law

2.1 Is there a European Refugee and Asylum Law 23

2.2 Conclusion 33 Chapter III The Principle of Non-refoulement under EU Law

3.1 Non-refoulement as a Fundamental Principle in International Law 35

3.2 The Council of Europe and the Principle of Non-refoulement 40

3.3 How is the Principle of Non-refoulement respected under EU Law 41

3.4 Conclusion 47 Chapter IV Case Study: The role of the European Court of Justice and the European Court of Human Rights in the development and application of the Right to Asylum and the Principle of Non-refoulement among Member States

4.1 The Asylum Acquis and the European Court of Justice 49

4.2 The applicability of the European Convention of Human Rights to asylum cases 53

4.3 Other forthcoming issues on the agenda of the ECJ and ECtHR relevant to Refugee La

–  –  –

Refugee protection has been of great concern to the international community ever since the creation of the United Nations. By means of the asylum channel, refugees and others in need of protection could gain access to the assistance the States were providing them with. But sometimes, these national asylum systems were inefficient and provided unequal access to the asylum procedures. In order to solve this problem, the European Union, has been struggling to develop a Common European Asylum System, intended to harmonize the asylum systems and procedures of its Member States and to facilitate the examination of asylum claims. To do so, it relied on the pre-existing international legal framework, governed by the provisions of the 1951 Refugee Convention and the principle of non-refoulement. The European law on asylum which thus emerged, was not an independent legal framework, but one closely connected with the international law on refugees.

This paper is structured around the following research question: what are the procedures and minimum conditions for granting asylum in the European Union and how are the refugees protected under EU law?

To answer this question, the paper traces the developments of the European asylum law, in with respect to two key principles: the right to asylum and the principle of non-refoulement. After a theoretical examination of these concepts, both at the international and the European level, the research continues its analysis by investigating the role played by the European Court of Justice and the European Court of Human Rights in the application and interpretation of these terms.

After thoroughly analyzing these concepts, the paper concludes that after crossing European borders, and gaining access to the asylum procedures and systems, an asylum seeker can be granted two types of protection: international protection (refugee and subsidiary protection status under the Qualification Directive) and national humanitarian protection, according to the national legislation of each Member State. Moreover, an asylum seeker must also be protected against refoulement and against any treatment contrary to Article 3 ECHR (torture, inhuman or degrading treatment or punishment).

–  –  –

Table 3 – First instance decisions by outcome, 4th quarter 2009 (rounded figures) 78 Table 4 – First instance decisions by outcome, 1st quarter 2010 (rounded figures) 78 
 2


–  –  –

CFSP Common Foreign and Security Policy e.g. exempli gratia (for example) ECHR Convention for the Protection of Human Rights and Fundamental Freedoms ECJ European Court of Justice ECtHR European Court of Human Rights ESDP European Security and Defence Policy etc. et caetera EU European Union i.e. id est (that is) OAU Organization of African Unity UN United Nations UNHCR United Nations High Commissioner for Refugees 
 3
 
 Introduction Refugees and Asylum at a glance For centuries, people have been discriminated and forced to flee their homes because of conflict, political, racial and religious persecutions, natural disasters and inhuman treatments that took place in their societies. In exile, they sought either refuge or the protection of other countries.

Human beings have migrated since the earliest societies. The first migrants were tribal people in search of food, water and resources. They were not yet refugees or asylum seekers; they were mere gatherers or hunters who began exploring new lands to settle. The land, provided for much of their basic needs and soon, “territory became associated with property”. Conflicts emerged in order to gain or protect one’s territory, just like governments were created to organise and defend this very territory. In those early years, governments instituted laws and policies for security reasons in order to guard their natural resources.





Not much has changed since then. The migration regulations that exist today were also introduced to enforce security throughout countries, as well as to fight terrorism or illegal traffic of people, drugs or weapons.

But what happens should governments fail to protect their citizens and if people become displaced for any reason? In such a case, they become refugees, asylum seekers, stateless or internally displaced persons.

The first refugees abandoned their homes due to religious persecution or conflicts that emerged in their societies. But the highest number of refugees ever recorded, was produced during and after the two world wars. This led to the necessity of creating a structure that could help these people. In the 1950s, the United Nations High Commissioner for Refugees was created, replacing the previous refugee agencies that existed under the League of Nations. Its mandate was to provide refugees with international protection, as well as to seek “permanent solutions for the problem of refugees by assisting governments and […] private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities”.

Today, there are 43.3 million displaced people worldwide, of which 15.2 million are refugees, 27.1 million are internally displaced persons, and 1 million are waiting for their asylum application to be adjudicated, according to UNHCR’s 2009 report on refugees, asylum seekers, returnees, internally displaced and stateless persons. Many of them flee to neighbouring countries to find protection. However, others, attracted by a higher standard of living, prefer western countries as destinations. The number one refugee hosting country in the western world is Germany, followed by the United States, the United Kingdom, France and Canada. Europe hosts a mere 16% of the world’s refugees, most of whom come from Afghanistan, Iraq, Serbia or Turkey. In terms of asylum applications, however, the European Union receives almost 200 000 asylum claims per year, becoming the main destination for asylum seekers in the western world and in second position after South Africa. This means that the European Union is playing a major role in deciding the fate of refugees and asylum seekers from all over the world.






























































 Daniel Warner, “Migration and Refugees: a challenge for the 21st century”, in Jean-Yves Carlier, Dirk Vanheule, Europe and Refugees: a challenge?, Kluwer Law International, The Hague, 1997, p. 58.

2 Chapter 1, par.1 of the Statute of the Office of the United Nations High Commissioner for Refugees, available at http://www.unhcr.org/3b66c39e1.html [accessed on 8 August 2010].

3 UNHCR, 2009 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons, Division of Programme Support and Management, 15 June 2010, p.2, available at http://www.unhcr.org/4c11f0be9.html [accessed on 8 August 2010].

4 See Annex 1: Total population by category, end-2009.

5 UNHCR, 2009 Global Trends, p.6.

6 Ibidem, p.17.


 4
 
 But how is Europe dealing with these migrants? Is it welcoming them or is it restricting their right to seek asylum? Why did migration become a problem for many European States?

Since its beginnings in the early 1950’s, the European Union has merely tried to defend itself against any threat that could come from outside its frontiers. One of these threats was illegal migration, phenomenon thought of causing political, economical, social and cultural instability, as well as provoking conflict among European countries. The measures taken to prevent illegal migration, range from controlling outside borders to engaging in civilian and military operations in conflict zones. In terms of controlling the borders, several agencies were created, such as Europol (the European Police Office), Eurojust (the European judicial cooperation body), to deal with immigration, terrorism, human trafficking, organised crime and any other international crime. Additionally, Frontex, the European Agency for the Management of Operational Cooperation at the External Borders, was entitled with border security.

Besides controlling and securing the borders, other measures in the field of foreign and security policy were intended to prevent illegal migration. The idea was that by engaging itself in civilian and military operations in conflict regions around the world, the ESDP (European Security and Defence Policy) would be able to reduce the number of refugees and asylum seekers that were trying to cross the European borders.

All these instruments were intended to control migration and had an indirect effect on refugees and asylum seekers, in terms of restricting their access in the European Union. But even if migration restrictions were introduced, the European Union has also developed a series of political and juridical instruments to protect these very refugees and asylum seekers, showing its strong commitment to the respect of human rights and the international treaties.

For those who succeed in crossing the European border, the procedures to be granted refugee status in one of the EU countries were sometimes troublesome and lasted a relatively long time. This was due to the large number of asylum systems and policies that existed among Member States. Over the last years, however, the European Union has taken important steps towards the harmonization of asylum procedures and has agreed on a set of regulations and principles to diminish the disparities between Member States, in the field of asylum. This has led to the incorporation of the topic of asylum into the European Union legal framework, as well as to the development of a European Refugee and Asylum Law. Moreover, the transposition of the entire asylum acquis, has become a prerequisite for countries if they were to become members of the European Union.

The introduction of common regulations and asylum procedures has shown that the European Union has been struggling to find solutions to deal with its refugees and asylum seeker. At the same time, the European Union has been trying to carry out a minimal control at its borders to prevent illegal immigration and international crime.

Research question This paper focuses on the protection of refugees and their right to seek asylum in the European Union.

More specifically, it covers the following research question:

What are the procedures and the minimum conditions for granting asylum in the European Union and how are the refugees protected under EU law?

By answering this question, we seek to provide an overview of the key concepts and issues on the development of a European asylum law, which often interferes with different national systems and with international norms. The European Union’s law on refugees and asylum seekers has known a constant change and evolution. The main challenge for the European Union in the field of asylum was the creation of a Common European Asylum System that needed to reconcile the different legal systems of the Member States and the international principles of refugee protection, drawn by the 1951 Refugee Convention. Two of these principles will be thoroughly discussed in this paper: the right to asylum and the principle of non-refoulement. All the European Union’s Member States have signed the 1951 Refugee 
 5
 
 Convention and they also comply with the EU asylum law. The right to asylum in the European Union revolves around the interpretation of article 63 of the Treaty Establishing the European Community. As for the key principle of international refugee law, non-refoulement, it was first formulated under EU law at paragraph 13 of the Presidency Conclusions of the Tampere European Council in October 1999.

In an attempt to analyze these two principles, this research will be structured around the following ideas

and questions:

What is a “refugee”, an “asylum seeker”, a “person eligible for subsidiary protection” and an “economic migrant”?

What is “the right to asylum”? Is there a right to asylum in the European Union? And if yes, is it compatible with national and international norms?

What is “the principle of non-refoulement”? Is this a jus cogens norm in the European Union?



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