A4-0450/98

Resolution on the harmonisation of forms of protection complementing refugee status in the European Union

The European Parliament,

- having regard to the Treaty on European Union, and in particular Title VI thereof,

- having regard to the Treaty of Amsterdam of 2 October 1997,

- having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950,

- having regard to the Convention of Geneva Relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967,

- having regard to the Universal Declaration of Human Rights of 10 December 1948,

- having regard to the United Nations Convention against torture and other cruel, inhuman or degrading treatment of 10 December 1984,

- having regard to the communication from the Commission to the Council and the European Parliament on immigration and asylum policies (COM(94)0023 - C3-0107/94),

- having regard to its resolution of 21 September 1995 on the abovementioned communication ((OJ C 269, 16.10.1995, p. 156.)),

- having regard to the Council Resolution on a harmonised approach to questions relating to third countries of reception of 30 November/1 December 1992, the Council's conclusions on countries for which there is generally no serious risk of persecution of 30 November/1 December 1992, and the Council Resolution on manifestly unfounded applications of 30 November/1 December 1992,

- having regard to the Council Resolution on minimum guarantees for asylum procedures of 20 June 1995 ((OJ C 274, 19.9.1996, p. 13.)),

- having regard to the Joint Position of the Council on the harmonised implementation of the definition of the term 'refugee' of 4 March 1996 ((OJ L 63, 13.3.1996, p. 2.)),

- having regard to the Council Resolution laying down the priorities for cooperation in the field of justice and home affairs for the period from 1 July 1996 to 30 June 1998 of 14 October 1996 ((OJ C 319, 26.10.1996, p. 1.)),

- having regard to the Convention of Dublin of 15 June 1990 on determining the state responsible for processing an asylum application lodged with one of the Member States of the European Communities,

- having regard to the proposals for a joint action submitted by the European Commission pursuant to Article K.3(2)(b) of the Treaty on European Union on temporary protection for displaced persons (COM(98)0372 - C4-0505/98 - 97/0081(CNS) and COM(98)0372 - C4-0506/98 - 98/0222(CNS),

- having regard to the Council Resolution of 18 December 1997 laying down the priorities for cooperation in the field of justice and home affairs for the period from 1 January 1998 to the date of entry into force of the Treaty of Amsterdam ((OJ C 11, 15.1.1998, p. 1.)),

- having regard to Petition No 852/97 submitted by Mr Friedrich Magirius, of German nationality, and others on the European Union's asylum policy,

- having regard to the report of the Committee on Civil Liberties and Internal Affairs and the opinion of the Committee on Women's Rights (A4-0450/98),

A. whereas the Universal Declaration of Human Rights recognises the right of any person to protect themselves against persecution and to enjoy asylum in any country, and whereas that fundamental right is reflected in the traditional respect for the individual in European countries,

B. whereas refugee status is governed by the Geneva Convention, to which all the Member States of the European Union are party, and whereas those states undertook, in signing that Convention, to protect any person fearing persecution on account of his race, religion, nationality, membership of a social group or political opinions, provided that such persons are not covered by the grounds for exclusion contained in Article 1(F) of that Convention,

C. whereas the Geneva Convention on refugees defines refugees as persons who, owing to well founded fear of being persecuted on grounds of race, religion, nationality, membership of a particular social group or political opinion, are outside the country of which they are nationals,

D. whereas any person, and in particular any woman, who has been a victim of systematic gender-specific persecution in the context of wars or other serious social unrest or who has a legitimate fear of becoming such must, as a member of a social group, be recognised as a refugee within the meaning of the Geneva Convention,

E. whereas moreover, in the light of recent crises, the causes of refugee movements must under no circumstances be confused with those of other migratory movements, and whereas the specific characteristics of asylum policy require that a clear distinction be drawn between asylum policy and immigration policy,

F. whereas work is in progress at the Council on preparing the European Union's future strategy on immigration and asylum policy, whereas those preparations are failing to draw a sufficiently clear distinction between immigration and asylum issues and whereas Parliament must be consulted on these matters forthwith,

G. whereas the entry, residence and status of persons seeking international protection in the territory of the Member States cannot be treated merely as issues relating to the internal security of those States and involve political and moral values which are underwritten by the international conventions to which those States are party,

H. whereas asylum policy can no longer be dealt with at national level alone and whereas it is necessary, on the basis of the new Title IV in the Amsterdam Treaty, to adopt an approach which makes it possible to afford effective protection to any person who, for humanitarian reasons, needs international protection,

I. whereas this approach must also make it possible to introduce long-term strategies to eliminate or reduce the underlying causes of movements of refugees and other persons seeking international protection, which, at the same time, implies stepping up cooperation with the countries of transit and the main countries of origin of immigrants, giving consideration to ways of increasing development aid and economic cooperation, improving the level of human rights protection in such countries and stepping up measures to combat immigration networks,

J. whereas in recent years there has on average been a downward trend in the number of applications for asylum in the European Union, though with some marked disparities among Member States, and the rates of acknowledgement of refugee status have stagnated in many countries and whereas these trends cannot be attributed to an improvement in the human rights situation in the world,

K. whereas in recent years several Member States have tightened up their legislation on asylum and immigration, as a result of which ever stricter conditions are being required of persons seeking protection in the countries of the Union and, moreover the number of conditions to be fulfilled by asylum seekers in order to gain access to the relevant procedures for determining their status has been increased,

L. whereas, according to the Council's Joint Position of 4 March 1996, the 'appropriate forms of protection under national law¨ granted to persons who cannot claim refugee status though their fundamental rights would be threatened if they were forced to return to their country of origin have not been the subject of a joint approach at Member State level, and whereas the temporary protection scheme for displaced persons, currently under discussion at the Council, is not relevant to the situation in which the above-mentioned persons find themselves,

M. whereas this state of affairs is reflected in a legal vacuum in several Member States of the Union between the provisions of the Geneva Convention on the one hand and the temporary protection scheme on the other, which is only applicable to crises and massive inflows of displaced persons,

N. whereas national provisions, where they exist, for persons who cannot claim refugee status although their fundamental rights would be threatened if they were forced to return to their country of origin differ widely in the various Member States, some of which have established status categories complementary to refugee status, while others offer no formal protection other than that arising from the Geneva Convention,

O. whereas these differences between the legal systems of the Member States may well cancel out the Union's current efforts to promote a better spread of responsibilities with regard to reception and residence of persons seeking protection, and may harm the spirit of solidarity between the Member States,

P. whereas it is necessary, as of the present, to prepare for closer approximation of complementary forms of protection other than refugee status in the European Union, in the interests of the persons concerned and of the Member States themselves, and whereas the applicant countries should be involved in this work,

1. Points out that the fact of requesting asylum involves the assertion of a basic right and that, in addition to their responsibility in terms of acting to deal with the causes of refugee movements, the European states must, in line with their traditional respect for the individual and the international undertakings to which they have subscribed, ensure that that right can actually be exercised;

2. Notes that, since the early 1990s, the Council, without consulting the European Parliament, has adopted several decisions on asylum policy which, in particular, formalised certain criteria for refusing to admit asylum-seekers to the procedure for determining their refugee status, albeit in the form of resolutions and recommendations which as such have no binding legal force;

3. Notes that, while harmonised application of the definition of the term 'refugee¨ in Article 1 of the Geneva Convention is necessary in the context of Communitisation of asylum policy, the effect of the Council's Joint Position of 4 March 1996 on the harmonised application of the definition of the term ''refugee¨' has been to endorse a restrictive interpretation of the Geneva Convention by some Member States;

4. Regrets that, in spite of attempts to standardise the criteria for granting refugee status under the Geneva Convention, recognition rates vary extremely widely among the member countries in respect of similar cases;

5. Reaffirms that the Geneva Convention must apply also to persons who are persecuted by non-state agents in cases where the state itself is incapable of protecting its own nationals;

6. Emphasises that the examination of applications for refugee status must be carried out within a reasonable period, which is far from being the case at present in several Member States;

7. Deplores the fact that the Treaty of Amsterdam has failed to supplement the theoretical step forward achieved through the transfer of asylum policy from the third to the first pillar by introducing, from its entry into force, proper mechanisms for democratic and judicial supervision which would enable the European Parliament to be closely involved in the preparation of decisions;

8. Calls on the Commission to embark immediately on the work of harmonising Member States' legislation on various aspects of asylum policy, and to be ready to submit proposals as soon as the Treaty of Amsterdam enters into force;

9. Asks that such proposals should comply with the letter and spirit of the Geneva Convention, the European Convention for the Protection of Human Rights and the United Nations Convention for the abolition of torture, in terms of both the procedures and the substantive examination of applications for asylum or the contents of the rights granted, and that any draft uniform definition of the term 'refugee¨ should be in conformity with the handbook on procedures and criteria for determining refugee status of the UNHCR, the only authority qualified to interpret the Geneva Convention;

10. Notes that national legislation on complementary protection varies widely from one Member State to another;

11. Is concerned at the tendency of certain states to substitute a precarious form of protection, which is tantamount to depriving the persons concerned of all rights, for recognition of genuine refugee status under the Geneva Convention;

12. Hopes that the Council, in close cooperation with the European Parliament, will implement paragraph 4(g) 'examination of forms of alternative protection (de facto protection and humanitarian residence permits)" of its resolution of 14 October 1996 and that that examination is supplemented by a Commission proposal;

13. Believes that that proposal, which should be accompanied by a timetable, should make provision, for persons who cannot claim refugee status within the meaning of the Geneva Convention, for a form of complementary protection enabling Member States, in accordance with their international commitments in the field of human rights protection, to grant a specific status to such persons;

14. Wishes to be consulted in good time on that proposal, in respect of which it proposes that complementary protection should apply, in particular, on the basis of international human rights protection instruments, to:

- persons who have fled their country of origin, and/or cannot return because their lives, safety or freedom are threatened by widespread violence, foreign aggression, internal conflict, large-scale violations of human rights or other circumstances which have severely disrupted public order;

- persons who have fled their country of origin, and/or cannot return because they have justified fears of being tortured, subjected to sexual violence or violence on account of their sexual orientation, inhuman or degrading treatment, capital punishment or other violations of their fundamental rights;

15. Calls, when the categories of persons in need of protection are defined, for account to be taken, where the rights of women are concerned, of the internationally recognised grounds for acceptance, viz. sexual violence and exploitation and especially trafficking in women. Accordingly, those concerned should receive the necessary medical and psychological help. Women should be granted a status separate from that of their relatives;

16. Considers that status complementary to refugee status must confer rights on the persons concerned;

17. Acknowledges that, with each case taken on its merits, provision should be made for measures to ensure integration into social and economic life. Measures should be taken to give unaccompanied children special protection in accordance with the UNHCR guidelines, including adequate accommodation from the moment they apply for refugee status;

18. Insists that forms of protection complementary to refugee status must not call into question the full implementation of the Geneva Convention and must at the same time be distinguished from the temporary protection regime;

19. Takes into account the fact that the Austrian Council Presidency, through its strategy paper on immigration and asylum policy, has provided stimulus for discussion at European level;

20. Urges that applicants for complementary status whose applications are dismissed at first instance should be able to lodge an appeal with suspensory effect against any decision involving expulsion or return to the frontier;

21. Wishes to closely involve the national parliaments, the parliaments of the applicant countries, the United Nations High Commissioner for Refugees and the non-governmental organisations concerned in a discussion process aimed at establishing genuine protection complementing refugee status in the European Union;

22. Instructs its President to forward this resolution to the Council, the Commission, the governments and parliaments of the Member States and the governments and parliaments of the applicant countries.