European Union (EU) Member States: Application of the "Protocol on Asylum for Nationals of Member States"

The European Union (EU) Member States are Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom (UK) (EU n.d.a).

The Protocol on Asylum for Nationals of Member States, also known as the Spanish Protocol, is part of the Treaty of Amsterdam (UK Oct. 2006; ICVA May 2001). The Treaty of Amsterdam addresses fundamental rights, economic issues and institutional reform in the EU (EU n.d.b). Treaty negotiations focused on the means by which the EU would address challenges posed by economic globalization, terrorism, international crime and narcotics trafficking, ecological issues and public health concerns (EU n.d.b). The Treaty, signed by EU political leaders on 2 October 1997, entered into force on 1 May 1999 (Luxembourg 16 Aug. 2007). The Treaty which is made up of three parts and one annex, contains thirteen protocols, including the Spanish Protocol (EU n.d.b). The Spanish Protocol, referred to hereafter as the Protocol, is so named because it was Spain that urged other member states to include legislation that would bar EU nationals from seeking asylum in other EU member states (Landgren June 1999, 8; Center for European Integration Studies 2005).

With respect to EU member states, the Protocol states the following:

Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases:

if the Member State of which the applicant is a national proceeds, availing itself of the provisions of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating from it obligations under that Convention;

if the procedure referred to in Article I-59(1) or (2) of the Constitution has been initiated and until the Council, or where appropriate, the European Council, adopts a European decision in respect thereof with regard to the Member State of which the applicant is a national;

if the Council has adopted a European decision in accordance with Article I-59(1) of the Constitution in respect of the Member State of which the applicant is a national or if the European Council has adopted a European decision in accordance with Article I-59(2) of the Constitution in respect of the Member State of which the applicant is a national;

if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case, the Council shall be immediately informed; the application shall be dealt with on the basis of presumption that it is manifestly unfounded without affecting in any way, whatever the case may be, the decision-making power of the Member State. (EU 16 Dec. 2004)

EU "Declaration (No. 48) Relating to the Protocol on Asylum for Nationals of Member States of the European Union," which is annexed to the Treaty of Amsterdam, states that the Protocol itself "does not prejudice the right of each Member State to take the organisational measures it deems necessary to fulfil its obligations under the Geneva Convention ..." (EU 1999a). EU declarations are issued to articulate a political stance but are not legally binding (EU n.d.c).

Within the European Commission (EC), asylum issues fall within the mandate of the Directorate-General of Justice, Freedom and Security (EU n.d.d). In correspondence with the Research Directorate, an official from the EC Directorate-General for Justice, Freedom and Security explained the Protocol in the following manner:

... [A]sylum applications from EU citizens are in general to be declared inadmissible by Member States. However, exceptionally, a Member state may unilaterally decide in individual cases to examine asylum applications lodged by nationals of another Member State.... [T]he examination should be compatible with the provisions of the Protocol, which means that the application should be dealt with on the basis of the presumption that it is manifestly unfounded. (6 June 2007)

The International Council of Voluntary Agencies (ICVA), a global association of non-governmental organizations (NGOs) that specializes in humanitarian and refugee issues (ICVA n.d.), stated in May 2001 that the Protocol effectively disqualifies EU nationals from claiming asylum in the EU (ibid. May 2001). The ICVA explained that this restriction, which is based on a person's country of origin, is "inconsistent with Article 3" of the Convention Relating to the Status of Refugees (ibid.). In a Cambridge Student Law Review article exploring the safe country concept in EU asylum law, Nadine El-Enany, an active researcher in the field of EU law (Chalmers et al. May 2006), questions why, in relation to the EU and the Protocol, a "claim to adherence to a particular degree of protection of human rights necessitate[s] the conclusion that all Member States are incapable of generating asylum seekers" (El-Enany 2006, 4). In September 1998, the European Council on Refugees and Exiles (ECRE) expressed concern that the Protocol would be detrimental to freedom of movement in the EU and asked central and eastern European states to voice opposition as Belgium did. In contrast, Hemme Battjes provides the following information in a review of European asylum law published by Vrije Universiteit Amsterdam:

The Spanish Protocol allows Member States to process applications by nationals of other Member States. International law obliges them to make use of this competence. Applications by EU nationals must be treated as if they were manifestly unfounded. As the instrument does not attach any particular legal consequence to such designation, this obligation is, as such, not discriminatory. (15 Feb. 2006, 358)

Specific information on the application of the Protocol by Bulgaria, France, Greece, Italy, Lithuania and Poland could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. However, specific information was found for the remaining Member States.

Austria

According to an official from the Austrian Embassy, Austria considers itself party to the Protocol (21 Aug. 2007). The Official referred the Research Directorate to Article 39 of Austria's Federal Act Concerning the Granting of Asylum (2005 Asylum Act - Asylgesetz 2005) (Austria 21 Aug. 2007), which designates all the current EU member states as safe countries of origin (Austria 2005, Art. 39). Article 39(2) of the Act states the following:

If, upon a substantiated proposal by one third of the Member States, by the European Parliament or by the Commission, it is determined by the Council, acting by a majority of four fifths of its members, that there is a clear risk of a serious breach by a Member State ... the suspensory effect of appeals against rulings on applications by asylum seekers from that country of origin shall not be disallowed. (Austria 2005)

Article 39(5) grants Austria's federal government the same power as mentioned in Article 39(2) with respect to Bulgaria, Romania and certain non-EU states (ibid.). The federal government, under the same Article, may name other countries as safe countries of origin (ibid.).

Belgium

An official from Belgium's Office of the Commissioner General for Refugees and Stateless Persons (Commissariat général aux réfugiés et aux apatrides, CGRA) and the EC Official both stated in correspondence with the Research Directorate that Belgium declared it would process applications from EU nationals (Belgium 1 June 2007; EU 6 June 2007). Declaration No. 56 relating to the Protocol, which is annexed to the Treaty of Amsterdam, corroborates this information:

... Belgium declares that, in accordance with its obligations under the 1951 Geneva Convention and the 1967 New York Protocol, it shall ... carry out an individual examination of any asylum request made by a national of another Member State. (EU 1999b)

The Belgian Official further explained that Belgium examines individual claims made by EU nationals, but is not required to consider them "when it is manifest there exists no fear of persecution or real risk of suffering serious harm" (1 June 2007). Under Belgium's asylum procedures, Belgian officials have five days to make this type of determination, after which a claimant may appeal for an annulment of the decision (Belgium 1 June 2007). These claimants are not entitled to "a full jurisdiction appeal" (ibid.). The Quaker Council of European Affairs, an international not-for-profit organization focused on peace, human rights and economic justice in Europe (Quaker n.d.), describes Belgium as "the only country within the European Union that accepts asylum applications from other EU Member States" (ibid. Apr. 2005).

Cyprus

An official from the Consulate General of the Republic of Cyprus in Toronto provided the following information in correspondence with the Research Directorate:

According to Article 1 of the Treaty concerning the accession of the Republic of Cyprus ... to the European Union, signed in Athens on the 16th of April 2003, the Republic of Cyprus has become a member of the EU and Party to the Treaties on which the Union is founded, as amended or supplemented....

... Article 2 of the Act annexed to the Treaty of Accession provides that "from the date of accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before the accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and this Act."

[The] Protocol ... on asylum for nations of Member States of the EU, being an integral part of the Treaties establishing the EU, is binding on the Republic of Cyprus and is therefore implemented by the latter, as of the date of its accession to the EU, on May 1st, 2004. (16 Aug. 2007, emphasis in original)

Czech Republic

An official from the Embassy of the Czech Republic in Ottawa stated that the Czech Republic considers itself party to the Protocol and declares asylum claims from EU nationals as "inadmissible with the consequences of discontinuance of proceedings" (31 Aug. 2007). In the 2005 Status Report on Migration in the Czech Republic, the Czech Ministry of Interior reported that the Slovak Republic generated the second highest number of claimants seeking asylum in the Czech Republic; however, after changes to the Act on Asylum in October 2005, which deemed asylum claims made by EU nationals as inadmissible, this number decreased significantly (2006, 85).

Denmark

An official from the Royal Danish Embassy in Ottawa informed the Research Directorate that Denmark "considers itself party ... to the Protocol and does also apply the Protocol" (15 Aug. 2007).

Estonia

An official from the Embassy of the Republic of Estonia in Ottawa stated in a 13 September 2007 telephone interview with the Research Directorate that Estonia considers itself party to the Protocol on asylum. The Official explained that the Ministry of Interior deals with asylum matters in cooperation with the Ministry of Foreign Affairs, and that, so far, Estonia has had no cases of EU nationals requesting asylum (Estonia 13 Sept. 2007). According to the Official, if an EU national were to apply for asylum in Estonia, the process would be the same as for other applicants (ibid. 18 Sept. 2007).

Finland

In 16 August 2007 correspondence with the Research Directorate, an official from Finland's Directorate of Immigration informed the Research Directorate that Finland is party to and applies the Protocol. The official stated that "in the exceptional cases mentioned in the [P]rotocol, Finland does allow a national of the EU to enter the asylum process and will provide the person with accommodation by the Reception and Integration Agency" (Finland 16 Aug. 2007).

Germany

An official from the German Federal Office for Migration and Refugees stated that Germany considers the Protocol binding and enforces it through the aforementioned office (16 Aug. 2007).

Hungary

An official from the Embassy of the Republic of Hungary in Ottawa stated in 15 August 2007 correspondence with the Research Directorate that the Protocol "became binding at the instant Hungary signed the Treaty (May 1, 2004)." The Official stated that Hungarian law conforms to rules set out in the Protocol and that asylum claims made by EU nationals are to be considered prima facie inadmissible with decisions being made using an accelerated process (Hungary 15 Aug. 2007). The Hungarian Official also stated that Hungarian law permits "refugee authorities to investigate a claim thoroughly, and in case the conditions set out in the Protocol are present, they can even grant refugee status to the claimant" (ibid.).

Ireland

According to a January 2007 statement by the Irish Naturalisation and Immigration Service, Ireland will apply the Protocol and, as such, will not receive asylum claims from EU nationals. A "Background Note on Irish Asylum Policy" states that, as a result of the Protocol, the Office of the Refugee Applications Commissioner will not process asylum claims from EU nationals and that the Reception and Integration Agency will not provide accommodation to such persons (Ireland Mar. 2007). A media article in The Irish Times includes a statement by the Minister for Justice explaining that due to the provisions of the Protocol, roughly 220 Romanians as well as other EU nationals who submitted a claim for asylum in Ireland in early 2007, barring those with "exceptional circumstances," are not entitled to receive refugee status (19 Feb. 2007).

Latvia

An official from the Embassy of the Republic of Latvia in Ottawa stated in correspondence with the Research Directorate that the Protocol has been in force in Latvia since 1 May 2004 (22 Aug. 2007).

Luxembourg

An official from the Embassy of the Grand Duchy of Luxembourg in Washington, DC stated that Luxembourg considers itself party to the Protocol and that the Protocol has been applicable since 1 May 1999, when Luxembourg signed the Treaty of Amsterdam (16 Aug. 2007).

Malta

An official from the Maltese High Commission for Canada, which is in Washington, DC, informed the Research Directorate that Malta considers itself party to the Protocol (10 Sept. 2007). With respect to the enforcement of the Protocol, the Official explained that since Malta became an EU Member State, there has been one asylum claim from an EU national (Malta 10 Sept. 2007). This application was deemed invalid according to Maltese law and, as such, "did not even reach the stage of the inadmissibility procedure" (ibid.).

Netherlands

An official from the Embassy of the Kingdom of the Netherlands in Ottawa stated that the Netherlands both considers itself party to the Protocol and enforces its measures (20 Aug. 2007).

Portugal

An official from the Embassy of Portugal in Ottawa stated that Portugal is party to the Protocol (16 Aug. 2007).

Romania

An official from the Embassy of Romania in Ottawa stated in correspondence with the Research Directorate that as of 1 January 2007, Romania's national legislation conforms to EU legislative guidelines (6 Sept. 2007). The Official explained that "solutions in cases of asylum requests from citizens of the EU Member States are applied according to paragraph d) of the Protocol on asylum ..." (Romania 6 Sept. 2007). Under Law No. 122/2006 on Asylum in Romania, asylum claims by persons from safe countries of origin are subject to an expedited process (Romania 25 Aug. 2006, Art. 75). According to this law, EU member states are safe countries of origin (Romania 25 Aug. 2006, Art. 77). Article 77(3) of the law states that

[T]he application of the alien who comes from a safe country of origin is rejected as being manifestly unfounded, except for the case in which the situation in fact or the evidence presented by the applicant shows the existence of a well founded fear of persecution .... In this case, the applicant receives access to the ordinary procedure. (ibid.)

The Official stated that there has not yet been a case of an EU national applying for asylum in Romania (ibid. 6 Sept. 2007).

Slovakia

An official from the Embassy of the Slovak Republic in Ottawa stated that the Protocol is "binding for Slovakia" (14 Aug. 2007). According to the Official, the Slovak Ministry of Interior is responsible for the application of the Protocol (Slovakia 14 Aug. 2007).

Slovenia

An official from the Embassy of the Republic of Slovenia in Ottawa stated that Slovenia adopted the Protocol when it became an EU member state (Slovenia 13 Aug. 2007) on 1 May 2004 (ibid. n.d.). The Official stated that "Slovenia considers other EU States safe countries of origin and that is why asylum claims submitted by EU nationals are not examined on merits" (Slovenia 13 Aug. 2007). He further noted that "[a]sylum claims submitted by EU nationals are dismissed" (ibid.). The Official referred to the Slovene draft Law on International Protection, to be "adopted by the end of this year" (ibid.).

Spain

An official from the Embassy of the Kingdom of Spain in Ottawa provided the following information in correspondence with the Research Directorate:

The procedure for Spanish asylum provides for a phase of non admissibility to the processing stage of requests for asylum due to a series of evaluation reasons, including requests for asylum that are evidently groundless.

So far, requests for asylum submitted in Spain by nationals from Member States of the European Union have been deemed evidently groundless and, therefore, have not been accepted for processing.

Therefore, and in conformity with the provisions of the ... Protocol on the right to asylum, there has been no need to inform the Council of the European Union on the submission of the said requests. (10 Sept. 2007)

Sweden

An official from the Embassy of Sweden in Ottawa stated in correspondence with the Research Directorate that Sweden considers the Protocol binding "and will enforce it in the unlikely case of an application" (16 Aug. 2007).

UK

With regard to the UK, the Immigration and Nationality Directorate states the following with respect to asylum claims made by EU nationals:

As the UK does not have a general procedure by which an asylum claim may be declared inadmissible ... it follows that the claim must be considered within the substantive asylum procedure, albeit against the presumption that it is manifestly unfounded. This presumption can be rebutted and it would be possible and appropriate to give refugee status to any EU national who qualified. The terms of the Protocol require Member States to inform the EU Council of the fact that they have received and are considering such a claim. (Oct. 2006)

Specific cases

Information on specific cases where the Protocol was applied was scarce among the sources consulted by the Research Directorate. The EC Official stated that the Directorate-General of Justice, Freedom and Security did not have statistics on the review of cases lodged by EU nationals nor on whether EU member states had granted asylum to EU nationals (EU 6 June 2007). Among the sources consulted by the Research Directorate, however, one case of an EU national applying for asylum in an EU Member State was identified (Quaker Council for European Affairs Apr. 2005; Case Hermaja 3 Mar. 2004). According to the Quaker Council of European Affairs, Finnish conscientious objector Jussi Hermaja made an asylum claim in Belgium and was denied refugee status (Apr. 2005). The European Bureau for Conscientious Objection (EBCO) corroborates this information and explains that Hermaja left Finland in October 2001 after having been sentenced to 197 days in prison for refusing to complete military service or an alternative civilian service (Mar. 2004; Case Hermaja 3 Mar. 2004). According to Case Hermaja, a website documenting Hermaja's case, Belgium's CGRA determined that the asylum claim was "unfounded" (3 Mar. 2004). Belgian authorities also rejected Hermaja's subsequent appeal (Quaker Council for European Affairs Apr. 2005; EBCO Mar. 2004). Further information on the application of the Protocol could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

Austria. 21 August 2007. Embassy of the Republic of Austria, Ottawa. Correspondence with an official.
_____. 2005. Federal Act Concerning the Granting of Asylum (2005 Asylum Act - Asylgesetz 2005). (UNHCR Refworld) [Accessed 21 Aug. 2007]

Battjes, Hemme. 15 February 2006. European Asylum Law and Its Relation to International Law. [Accessed 24 Sept. 2007]

Belgium. 1 June 2007. Commissariat general aux réfugiés et aux apatrides. Correspondence with an official.

Case Hermaja. 3 March 2004. "Case Refused to Finnish Total Objector." [Accessed 29 May 2007]

Center for European Integration Studies. 2005. Ashkaan Rahimi. "The Evolution of EU Asylum Policy." [Accessed 21 Aug. 2007]

Chalmers, Damian, Christos Hadjiemmanuil, Girogio Monti and Adam Tomkins. May 2006. European Union Law. Cambridge, UK: Cambridge University Press. [Accessed 26 Sept. 2007]

Cyprus. 16 August 2007. Consulate General of the Republic of Cyprus, Toronto. Correspondence with an official.

Czech Republic. 31 August 2007. Permanent Representation of the Czech Republic to the European Union. Correspondence with an official.
_____. 2006. Ministry of the Interior. 2005 Status Report on Migration in the Czech Republic. [Accessed 5 Sept. 2007]

Denmark. 15 August 2007. Royal Danish Embassy, Ottawa. Correspondence with an official.

El-Enany, Nadine. 2006. "The Safe Country Concept in European Union Asylum Law: In Safe Hands?" Cambridge Student Law Review.

Estonia. 18 September 2007. Embassy of the Republic of Estonia, Ottawa. Telephone interview with an official.
_____. 13 September 2007. Embassy of the Republic of Estonia, Ottawa. Telephone interview with an official.

European Bureau for Conscientious Objection (EBCO) [Brussels]. March 2004. "Finnish Total Objector's Asylum Request Rejected by Belgian Supreme Court." The European Bureau for Conscientious Objection Newsletter [Accessed 29 May 2007]

European Union (EU). 6 June 2007. European Commission (EC). Directorate-General Justice, Freedom and Security. Correspondence with an official.
_____. 16 December 2004. Protocol on Asylum for Nationals of Member States. Official Journal of the European Union. [Accessed 5 June 2007]
_____. 1999a. "Declaration (No 48) Relating to the Protocol on Asylum for Nationals of Members States of the European Union." [Accessed 11 July 2007]
_____. 1999b. "Declaration (No 56) by Belgium on the Protocol on Asylum for Nationals of Members States of the European Union." [Accessed 9 July 2007]
_____. N.d.a. "European Countries." [Accessed 19 June 2007]
_____. N.d.b. "The Amsterdam Treaty: A Comprehensive Guide." [Accessed 20 Aug. 2007]
_____. N.d.c. "Glossary." [Accessed 20 Aug. 2007]
_____. N.d.d. European Commission (EC). "Justice, Freedom and Security from a European Commission Perspective." [Accessed 21 Aug. 2007]

European Council on Refugees and Exiles (ECRE). September 1998. Position on the Enlargement of the European Union in Relation to Asylum. [Accessed 21 Aug. 2007]

Finland. 16 August 2007. Directorate of Immigration. Correspondence with an official.

Germany. 16 August 2007. German Federal Office for Migration and Refugees. Correspondence with an official.

Hungary. 15 August 2007. Embassy of the Republic of Hungary, Ottawa. Correspondence with an official.

International Council of Voluntary Agencies (ICVA). May 2001. "The ICVA Guide to the Global Consultation on International Protection." [Accessed 7 May 2007]
_____. N.d. "About ICVA." [Accessed 21 Aug. 2007]

Ireland. March 2007. Irish Naturalisation and Immigration Service. "Background Note on Irish Asylum Policy." [Accessed 10 Aug. 2007]
_____. January 2007. Irish Naturalisation and Immigration Service. "Asylum and Nationals of Member States of the European Union: Information Note." [Accessed 11 July 2007]

The Irish Times [Dublin]. 19 February 2007. "New EU Citizens Not Able to Claim Refugee Status." (Factiva)

Landgren, Karin. June 1999. Deflecting International Protection by Treaty: Bilateral and Multilateral Accords on Extradition, Readmission and the Inadmissibility of Asylum Requests. [Accessed 21 Aug. 2007]

Latvia. 22 August 2007. Embassy of the Republic of Latvia, Ottawa. Correspondence with an official.

Luxembourg. 16 August 2007. Embassy of the Grand Duchy of Luxembourg, Washington, DC. Correspondence with an official.

Malta. 10 September 2007. Maltese High Commission for Canada, Washington, DC. Correspondence with an official.

Netherlands. 20 August 2007. Embassy of the Kingdom of the Netherlands, Ottawa. Correspondence with an official.

Portugal. 16 August 2007. Embassy of Portugal, Ottawa. Correspondence with an official.

Quaker Council for European Affairs. April 2005. "Country Report: Finland." The Right to Conscientious Objection in Europe: A Review of the Current Situation. [Accessed 29 May 2007]
_____. N.d. "What is QCEA?" [Accessed 21 Aug. 2007]

Romania. 6 September 2007. Embassy of Romania, Ottawa. Correspondence with an official.
_____. 25 August 2006. Parliament of Romania. Law No. 122-2006 on Asylum in Romania. (Office of the United Nations High Commissioner for Refugees REFWORLD) [Accessed 10 Sept. 2007]

Slovakia. 14 August 2007. Embassy of the Slovak Republic, Ottawa. Correspondence with an official.

Slovenia. 13 August 2007. Embassy of the Republic of Slovenia, Ottawa. Correspondence with an official.
_____. N.d. "Slovenia and the EU." [Accessed 24 Sept. 2007]

Spain. 10 September 2007. Embassy of the Kingdom of Spain, Ottawa. Correspondence with an official.

Sweden. 16 August 2007. Embassy of Sweden, Ottawa. Correspondence with an official.

United Kingdom (UK). October 2006. Home Office. Immigration and Nationality Directorate. "Asylum Claims Made by EU Nationals." [Accessed 18 June 2007]

Additional Sources Consulted

Oral sources: Officials from the embassies of Bulgaria, France, Greece, Italy, Lithuania and Poland in Ottawa and academics specializing in the European Union (EU) at the London School of Economics (LSE), Trinity College (Dublin), the University of Essex and the University of Wales (Aberystwyth) were unable to provide information within the time contraints of this Response.

Internet sites, including: British Broadcasting Corporation (BBC), Counselling Centre for Refugees, EurActiv.com, EurAsylum, European Union (EU) Justice and Home Affairs, Forced Migration Review [Oxford], Irish Refugee Council, Migration News [California], Office of the United Nations High Commisioner for Refugees (UNHCR) Tool Boxes on EU Asylum Matters, Refugee Council Online, Statewatch.