Observations by the European Council on Refugees and Exiles on the Presidency Conclusion of the Tampere European Council, 15 and 16 October 1999

General Remarks

1.                  The European Council on Refugees and Exiles (ECRE), representing 68 refugee assisting NGOs active in 25 European Countries, broadly welcomes the Conclusions of the Tampere European Council. The organisation is encouraged by the positive commitment of the Council's Conclusions with regard to the right to seek asylum and by the impetus given to the development of harmonised asylum policies with "guarantees to those who seek protection in or access to the European Union". These guarantees are crucial, as the best asylum policy in the world is no use unless refugees can access its protection.

2.                  ECRE believes that if the Conclusions are implemented in the spirit in which they have been written this would be a step towards a protection-oriented asylum policy. However, ECRE will remain vigilant as the key is in the implementation of the commitments made in the Conclusions. In this context ECRE considers that the European Council in December 2001, assessing progress made, will be an important occasion to measure the level of commitment and sincerity of EU Member States in translating into concrete measures the policy guidelines laid down in the Conclusions.

3.                  ECRE welcomes the acknowledgement that asylum and migration are two different, but inter-linked, phenomena and should be dealt with separately.

4.                  The comments below take the order in which they are written in the Conclusions rather than attempt a thematic approach. Some cross-referencing between paragraphs is necessary to deduce their meaning. The comments are drawn from the agreed positions of ECRE and from discussions within the organisation about the Conclusions and more generally.

Towards a Union of Freedom, Security and Justice: The Tampere Milestones

5.                  Paragraph 1: ECRE is encouraged that the EU sees human rights, democratic institutions and the rule of law as a cornerstone for enlargement of the Union, which has profound implications for the protection of refugees. This perspective on enlargement means that migration policy respects the absolute right to seek asylum and does not only concentrate on strengthening border controls in Central and Eastern Europe. With respect to EU re-admission agreements with countries of transit in Central and Eastern Europe and external controls ECRE sounds a note of warning, see below point 20.

6.                  Paragraph 2: ECRE agrees that the challenge of the Amsterdam Treaty is to ensure freedom to all. The explicit reference to freedom of movement is welcome. Taken with Paragraph 3, ECRE takes this to include also the freedom of movement of refugees within the Union.

7.                  Paragraph 3: ECRE agrees that freedom should not be only the preserve of EU citizens and that such freedom should not be denied to those who justifiably seek access to the EU. This means that people in need of international protection should be able to access the territory of the EU and have an opportunity to gain protection. The formulation of this paragraph, in which the requirement to develop common policies on asylum and immigration follows from the need to guarantee freedom, is greatly encouraging and has to mean that immigration control measures must be in full compliance with absolute respect of the right to seek asylum.

8.                  Paragraph 4: Following on from Paragraph 3, ECRE welcomes the aim of the Council to ensure an open and secure European Union, fully committed to the obligations of the Refugee Convention. This means that interdiction measures which deny the opportunity to flee persecution, such as carriers' sanctions, visa regimes and gate and pre-boarding checks, must be changed in order to guarantee access to protection. Further deterrent measures, such as detention of asylum-seekers, must also change if the stated aim is to be achieved.

9.                  Further under Paragraph 4 ECRE welcomes the commitment to other human rights instruments in the protection and reception of refugees. This must include not only the Universal Declaration of Human Rights and the International Bill of Rights, but also regional instruments such as the European Convention on Human Rights and instruments for the protection of minorities and of women and children.

10.              Paragraph 7: ECRE agrees that an area of freedom, security and justice should be transparent and under democratic control. We especially welcome the prospect of an open and informed dialogue with civil society. Taken with Declaration 17 to the Amsterdam Treaty, and Paragraph 8, ECRE takes this as a firm commitment to have timely consultations with UNHCR and other relevant international organisations, like ECRE, on the development of EU asylum policy.

A Common EU Asylum and Migration Policy

11.              Paragraph 11: ECRE welcomes a comprehensive approach to migration and the call for a greater coherence of the internal and external policies of the Union. We are encouraged that the Council has asked in Paragraph 12 for a report on implementation of measures on the comprehensive approach after a year. Implementation of concrete measures to improve human rights and poverty in countries of origin is crucial to the success of a comprehensive approach. Implementation also requires transparency and flexibility in the work of the High Level Working Group on Asylum and Migration (HLWG). We are equally encouraged that transparency and consultation with outside experts is now positively required by Paragraphs 7 and 8 of the Conclusions. In this context ECRE urges the European Union to involve UNHCR and relevant international non governmental organisations in consultations about the further development of the existing and new Action Plans as soon as possible. The European Union should ensure that the HLWG's Action Plans are not set in stone, but develop according to events.

12.              Paragraph 13: ECRE warmly welcomes the Council's reaffirmation of the importance of "absolute respect of the right to seek asylum". Such an absolutist approach means that asylum, and access to asylum, can never be subordinated to control measures.

13.              ECRE further welcomes the fact that a Common European Asylum System will be based on a "full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution". This means that the Council requires Member States which apply an incorrect interpretation of the Convention, e.g. one which does not cover persecution by non-state agents, to actively change that interpretation. It also means that asylum policy and practice must be gender-sensitive and child-centred. The guidance of UNHCR, as guarantor of the Refugee Convention, should be followed as to the correct interpretation of the Convention.

14.              Paragraph 14: ECRE believes that an harmonised interpretation of the Refugee Convention is possibly the single most important factor in the creation of a Common European Asylum System and should be dealt with sooner rather than later. Taken with other commitments, in Paragraph 4 and 13 particularly, ECRE believes that the EU will have to harmonise interpretation before, for example, revising the Dublin Convention.

15.              Paragraph 16: ECRE welcomes the recognition that an instrument on temporary protection in cases of sudden and mass influx is urgently needed. It is positive that subsidiary forms of protection (Paragraph 14) and temporary protection are viewed separately. ECRE agrees that sharing responsibility for protection in cases of sudden and mass influx needs to be developed and is pleased that the Commission is invited to explore the possibility of a financial reserve to support any measures. ECRE emphasises that responsibility sharing, both within Europe and globally, is also important to sustain the overall protection system- not only in cases of mass influx. ECRE is also pleased that subsidiary protection will attract rights appropriate to the status: this means rights at the same level as the Refugee Convention.

Fair treatment of third country nationals

16.              Paragraph 18: ECRE welcomes the commitment to a more vigorous policy of integrating third country nationals, including refugees. A vigorous integration policy, by definition, means that refugees should have access to rights comparable to those of EU citizens upon recognition of their status. In line with Paragraph 2 of the Conclusions, this includes the right to free movement within the Union.

Management of migration flows

18.              Paragraph 22: Taken with the strong commitments to asylum in Paragraphs 3, 4 and 13 ECRE understands the management of migration flows to also include developing means to allow access to protection in the EU. This means reconsidering visa regimes and other immigration controls from a refugee protection perspective.

19.              Paragraph 25: ECRE agrees that border control can only be undertaken by specialised trained professionals. In line with Paragraphs 4 and 13 this means that border police should be trained to identify and deal professionally with asylum applicants, including specialised training on gender and on working with children.

20.              Paragraph 26: ECRE is concerned that the European Union may make the (economic) assistance to countries of origin or transit, conditional upon these countries willingness' to take control oriented measures which may not be in line with the "absolute respect of the right to seek asylum". The reference to the principle of voluntary return to countries of origin is welcome. ECRE takes this to mean that, for example, "go-and-see" visits will be allowed so that decisions to return are informed.  ECRE sounds a note of warning that also readmission agreements with countries of origin or transit must be in line with the "absolute respect of the right to seek asylum". 

21.              Paragraph 27: ECRE is concerned that re-admission agreements may be used to return asylum-seekers to countries of origin or transit without providing sufficient safeguards against refoulement. This has been the case to date, and ECRE has been particularly concerned by the inappropriate use of re-admission agreements on a so-called "safe third country" basis. Taken with the strong commitments to asylum in Paragraphs 3, 4 and 13 ECRE believes that readmission agreements (or readmission clauses in other association agreements) must in future provide sufficient safeguards to ensure that this does not remain the case.