FECL 11 (December 1992/January 1993):
The Ministers for Immigration of the 12 EC- Member States met inter-governmentally, i.e. outside the framework of the Community and Community competence to consider a number of 'resolutions', 'recommendations' and 'conclusions, to harmonize immigration and asylum policies in the Community.
Great secrecy surrounded the meeting and the preparatory work for it. Apparently, except for the Netherlands, no national parliament was informed on the agenda of the conference despite the fact that principles agreed at the meeting are politically binding on the governments and must be implemented into national law and practice.
It seems that arrangements for informing and consulting the European Parliament are under consideration. However, the Member State-governments will not defer consideration of the draft resolutions pending consultation or public debate.
Accordingly, it seems obvious that the executive branches of the Member States wish to continue to take major decisions on harmonization in secret. "As we know from EC wide decisions to impose visa requirements, when national Parliaments are presented with changes to the law based on agreements between the 12, parliaments usually accept the changes, as they are told that if they do not, their country will be "swamped" with immigrants seeking the "softest" state to gain admission to the EC." (ILPA up-date December 92).
As ILPA notes, "it is extraordinary that 12 democracies should all consider it acceptable to proceed towards harmonisation of an area of such tremendous importance as immigration and asylum law while excluding from the process all non-governmental interested parties, most parlamentarians and, in some Member States, coalition partners of government". (ILPA up-date 3.11.92).
No definitive agreement seems to have been reached on two Resolutions with respect to employment and family reunion. However, nothing seems to indicate that Ministers failed to agree on those parts of the resolutions which had drawn strong protest by NGO's because of alleged violation of international conventions (on asylum, human rights, labour, and migrant workers). (see ILPA up-date 3.11.92 for details).
The Ministers approved a recommendation regarding practices to be followed by Member States on the expulsion of illegal residents. Among the main provisions are the following: A person being expelled should be expelled outside the territory of the Member States; the detention of persons liable to an expulsion order should be admitted; re-admission agreements should be conclude with third countries to facilitate documentation and return of their nationals.
A second recommendation on transit for the purpose of expulsion was also approved.
In the area of asylum, Ministers reached agreement on three documents in respect to asylum and, in particular on guidelines for determining "manifestly unfounded" applications and accelerating the respective procedures.
Inter alia, the Ministers approved the following considerations: Member States must introduce into their asylum laws the concept of a 'manifestly unfounded' application. They may introduce accelerated procedures for applications alleged to be manifestly unfounded or "operate admissibility procedures under which applications may be rejected very quickly on objective grounds". Initial decisions on "manifestly unfounded" applications must be reached within a month of application and appeal procedures may be abridged. However, applicants should be given the opportunity of a personal interview with a qualified official before a final decision is taken.
Applications are considered "manifestly unfounded" whenever the claim is based on deliberate deception or is an alleged "abuse of asylum procedures", whenever there exists a third host country (also outside the EC) to which the applicant can be sent back and whenever there is "clearly no substance to the applicant's claim to fear persecution in his own country".
This category includes: anyone whose fear of persecution is not based on a 1951 Refugee Convention ground; there is no indication that the person will be exposed to a fear of persecution; the applicant's story is "inconsistent", "contradictory" or "fundamentally improbable" and therefore "lacks credibility"; the applicant could seek protection in another part of his or her own country and it would be "reasonable" to expect the applicant to go there; there is "generally no serious risk of persecution" in the applicant's own country.
Guidelines for establishing a "safe country" according to the above definition can be found in the Conclusions on countries in which there is generally no serious risk of persecution. The stated purpose of the Conclusions is "to establish a harmonized approach to applications from countries which give rise to a high proportion of clearly unfounded applications". As pointed out by the ILPA, this purpose "depends on statistics of a clearly unfounded system as set out in the Resolution. However, as one of the reasons for an application to be clearly unfounded is because it comes from a country in which there is no serious risk of persecution, the logic is elliptical. Once a country is determined generally not to give rise to risk of serious persecution then a high proportion of applications will be alleged to be clearly unfounded which in turn will re-enforce the fact that it is a country which does not give rise to serious risks".
The Resolution on a harmonised approach to questions concerning host third countries applies not only to asylum seekers but also to refugees. The principle is that if there is any country outside the EC (other than the country of origin) to which the asylum seeker or refugee can be returned, EC states should do so.
Member States are to look for some third country to which to remove the person, before an asylum application is considered in its substance. If there is such a country "the application for refugee status may not be examined". In the English text, this is a prohibition on the examination of such an asylum application.
Thus the provisions of the Dublin Convention would only apply if there is no country outside the EC to which the asylum applicant can be sent. Nonetheless a Member State may decide, for humanitarian reasons, not to remove an asylum applicant to the third country.
A host third country must meet the following criteria: the life or freedom of the asylum applicant/refugee must not be threatened; the applicant must not be exposed to torture or inhuman or degrading treatment; he/she must already have been granted protection by the country or had opportunitity to seek protection or there is clear evidence of admissibility to this country.
According to the above conference documents the assessment both of a "safe country" of origin (generally no risk of serious persecution) and of a "third host country" is made individually by each Member States, based on a list of 'elements of assessment' agreed by the Ministers.
These elements of assessment include:
In other words, persecutees from countries determined as safe on the base of the individual assessment of the Member State concerned are kindly advised to remain in their own countries and seek protection or redress from their own authorities.
(See also in this FECL: "OPINION: 'Deregulation of legal and institutional frame- works - a handy tool for shifting power from legislative to executive bodies"