Communication from the Commission to the Council and the European Parliament on the common asylum policy, introducing an open coordination method - First Report by the Commission on the application of Communication COM(2000)755 final of 22 November 2000
Date: 2001-11-28
Institutions: European Commission
Subjects: European social policy, admission of aliens, approximation of laws, refugee, report, right of asylum, statistics

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 28.11.2001
COM(2001) 710 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE
EUROPEAN PARLIAMENT

On the common asylum policy, introducing an open coordination method

First report by the Commission on the application of
Communication COM(2000)755 final of 22 November 2000

   
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE
EUROPEAN PARLIAMENT

On the common asylum policy, introducing an open coordination method

First report by the Commission on the application of
Communication COM(2000)755 final of 22 November 2000

CONTENTS

Introduction ............................................................................................................................3

1.

2.

3.

4.

5.

6.

Implementation of the legislative programme of the first phase and flanking .............4
measures

Link between international protection obligations and security.................................10

Common analysis........................................................................................................12

The external dimension...............................................................................................13

Applying the open coordination method to asylum policy.........................................16

Recommendations.......................................................................................................21

ANNEXES

Annex 1

Statistical overview.......................................................................................23

Annex 2

Reactions to Communication COM(2000)755 final and Studies .................26

Annex 3

Breakdown of actions in the European Refugee Fund .................................28

2

INTRODUCTION

The Community's competence in the field of asylum and immigration dates from the Treaty of
Amsterdam. In October 1999 the Tampere European Council called for a common European
policy  on  asylum  and  migration,  which  would  specifically  entail  the  introduction  of  a
common European asylum system which would, in time, lead to a common asylum procedure
and a uniform status, valid throughout the Union, for those granted asylum.

The  Charter  of  Fundamental  Rights  of  the  European  Union,  proclaimed  in  December  2000,
contains two articles on the right of asylum (Article 18), which is  guaranteed in compliance
with the Geneva Convention of 1951 and the 1967 Protocol on the status of refugees and in
accordance  with  the  Treaty  establishing  the  European  Community,  and  on  protection  in  the
event of removal, expulsion or extradition (Article 19).

In  line  with  the  programme  agreed  in  Tampere  and  presented  in  the  "Scoreboard  to  review
progress on the creation of an area of freedom, security and justice in the European Union",
the Commission has already framed all of the proposals for the first stage. The proposals for
directives on asylum procedures, reception conditions for asylum-seekers and the Community
instrument to improve the system of determining the Member State responsible for examining
asylum requests, created  by the  Dublin Convention,  are  all  being  examined  by  the  Council.
The Commission's latest proposal, adopted on 12 September 2001, on defining the concept of
refugee,  subsidiary  forms  of  protection  and  the  types  of  status  to  which  they  give  rise,
completes  the  series  of  modules  which  will  together  form  the  first  stage  of  the  common
European asylum system. The proposals for directives on family reunification and the status
of  third-country  nationals  with  long-term  residence  also  cover  certain  aspects  of  refugee
status. In the meantime, the Decision establishing the European Refugee Fund, an instrument
of  financial  burden-sharing  between  Member  States  in  matters  of  asylum,  the  Eurodac
Regulation,  which  seeks  to  improve  the  working  of  the  Dublin  Convention,  and  finally  the
Directive  on  temporary  protection  in  the  event  of  a  mass  influx  of  displaced  persons  have
been adopted by the Council.

The number of asylum-seekers in the EU has continued to rise since 1997.  Annex 1 gives a
brief overview of the figures for certain trends in the number of applications for asylum and
decisions granting asylum by the Member States.

In its Communication of 22 November 2000 on the common asylum procedure and uniform
status (COM(2000)755 final), the Commission set out its views on this long-term objective of
European  asylum  policy,  identifying  objectives  and  options,  stressing  the  need  to  find
common  ground  in  analysing  the  issues  and  proposing  a  method.  The  Communication  was
widely  debated;  the  main  thrust  of  the  reactions  is  summarised  in  Annex  2,  which  also
indicates the current status of the four research studies announced in the Communication.

In its Communication the Commission also pointed out that although the two-stage legislative
programme represented the core element and the main contribution to the establishment of a
common  European  asylum  system,  the  nature  of  asylum  policy  also  necessitated  flanking
measures  and  techniques  for  convergence.  It  therefore  recommended  the  use  of  an  open
coordination  method,  specially  adapted  to  the  asylum  issue,  to  complement  the  legislative
framework.  This  approach  implies  drawing  up  strategic  guidelines,  benchmarking,  target-
setting and the introduction of monitoring to evaluate progress. This communication  gives a
more precise definition of the machinery of this method as applied to asylum and presents the

3

Commission’s initial suggestions for European guidelines for consultation prior to its formal
proposal.

The  Commission  suggested  that  it  should  issue  a  regular  report  to  review  ongoing
developments and present its recommendations. The first such report, published on the eve of
the Laeken European Council, is the subject of this Communication. The Commission report
on the common asylum policy in the EU, which will initially be an annual publication, should
provide  continuity  in  the  common  European  asylum  policy.  It  will  serve  the  interests  of
transparency  and  stimulate  public  debate.  At  the  same  time,  without  in  any  way  detracting
from  the  Commission's  right  to  initiate  legislation  at  any  time  or  from  the  specific
examination of the workings of the acts of secondary legislation in the appropriate forums, the
report will distil the lessons to be learnt from the work in progress and the application of the
various  instruments.  Among  other  recommendations  for  achieving  progress  in  the  future,  it
introduces  the  idea  of  applying  to  asylum  issues  the  sort  of  open  method  of  coordination
already  proposed  for  immigration  policy.  The  form  and  content  of  the  report  will  evolve
gradually, as the common European asylum system progresses.

PART I.          IMPLEMENTATION  OF  THE  LEGISLATIVE  PROGRAMME  OF
THE FIRST STAGE AND FLANKING MEASURES

1.1.

Legislation in the first stage

Eurodac

Council  Regulation  (EC)  No  2725/2000  concerning  the  establishment  of  “Eurodac”  for  the
comparison of fingerprints for the effective application of the Dublin Convention was adopted
on  11  December  2000.1  Preparatory  work  is  under  way  with  a  view  to  having  a  fully
operational system by the end of 2002, provided that Member States act quickly to introduce
implementing  rules  and  take  the  necessary  measures  to  enable  them  to  participate  in  the
system. The Regulation stipulates that Eurodac activities will start only when every Member
State has informed the Commission that it is ready. The launch of Eurodac thus depends on
the last notifying Member State.

On  15  March  2001,  an  agreement  was  concluded  between  the  European  Community  and
Norway and Iceland,2 which essentially reproduces the obligations and rights contained in the
Dublin Convention and Eurodac.

Temporary protection in the event of a mass influx of displaced persons

On  20  July  2001  the  Council  adopted  Directive  2001/55/EC3  on  minimum  standards  for
giving  temporary  protection  in  the  event  of  a  mass  influx  of  displaced  persons  and  on
measures  promoting  a  balance  of  efforts  between  Member  States  in  receiving  such  persons
and  bearing  the  consequences  thereof.  This  entered  into  force  in  August  2001  and  must  be
incorporated  into  national  legislation  by  31  December  2002.  The  Commission  presented  its
proposal in May 2000.

1

2

3

OJ L 316, 15.12.2000, pp. 1-10.
Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway
concerning the criteria and mechanisms for establishing the State responsible  for examining a request
for asylum lodged in a Member State or Iceland or Norway (OJ L 93, 3.4.2001 pp. 38-46).
OJ L 212, 7.8.2001, p.12.

4

                                                
On 20 September 2001, as part of the EU strategy in response to the events of 11 September
in  the  United  States,  the  Council  agreed  to  examine  the  situation  in  countries  and  regions
where  there  were  likely  to  be  large-scale  population  movements  as  a  result  of  heightened
international  tension and asked  the  Commission,  in  conjunction  with  the  Member  States,  to
consider  the  possibility  of  provisionally  invoking  the  Council  Directive  on  temporary
protection  if  special  protection  arrangements  proved  to  be  necessary  within  the  EU.  The
Commission has taken steps to monitor the situation in conjunction with the Member States.

Proposal for a Directive on asylum procedures

Following  an  analysis  of  the  replies  to  its  working  document  ‘Towards  common  asylum
procedures’ of March 1999, and of relevant resolutions of the EU acquis and legislation and
practice in Member States, the Commission presented its proposal for a Council Directive on
minimum  standards  on  procedures  in  Member  States  for  granting  and  withdrawing  refugee
status on 20 September 2000.4

The Economic and Social Committee adopted a favourable opinion on 26 April 2001, while
suggesting certain  more  liberal procedural  safeguards  for  asylum-seekers.  On  20  September
2001  the  European  Parliament  adopted  its  resolution  on  the  draft  directive.  Its  amendments
clarify  and  strengthen  the  position  of  asylum-seekers,  including  those  appealing  against
decisions,  while  tightening  up  the  definition  of  safe  countries  and  reducing  the  scope  for
detention. The UNHCR issued a position paper in July 2001.

Under  the  Belgian  Presidency  the  discussions  in  the  Council  have  focused  on  the  need  to
differentiate  procedures  (admissibility,  accelerated  and  regular  procedures),  the  number  of
appeals,  the  suspensive  effect  of  appeals,  time  limits  and  the  penalties  enforcing  them,
standards  relating  to  the  quality  of  the  decision  and  the  decision-making  process,  border
procedures and subsidiary protection. The Commission welcomes the intention of the Belgian
Presidency to reach  a  political  agreement on  a number  of  these  issues  and  on  related  issues
connected with the following two draft proposals.

Proposal for a Directive on the reception of asylum-seekers

At  the  beginning  of  December  2000  the  Council  adopted  conclusions  on  the  reception  of
asylum-seekers. Three important issues remained  unresolved: the target  group  of  any  future
legislative  instrument  on  reception,  freedom  of  movement  and  its  limits,  and  access  to  the
labour  market.  In  December  2000  the  Commission  launched  bilateral  consultations  on  a
Community legislative instrument in this field with the Member States, the UNHCR and the
NGOs most closely involved.

In May 2001 the Commission presented the Council with its proposal for a Directive laying
down minimum standards on the reception of applicants for asylum in Member States.5 The
main issues addressed are the following: definition of the target group that will benefit from
the  future  Community 
information,  documentation,  freedom  of
movement, material reception conditions (housing, food, clothing, daily expense allowance),
health care, schooling for minors, employment, reduction or withdrawal of reception, persons
with special needs and actions to improve the efficiency of the reception system.

instrument  (scope), 

The proposal is under consideration in the Council and the European Parliament.

4

5

COM(2000)578 final, 20.9.2000.
COM(2001) 181 final.

5

                                                
Proposal for a "Dublin II" Regulation

The Swedish Presidency in the first half of 2001 saw the completion of the strategic debate in
the  Council  on  the  revision  of  the  Dublin  Convention,  prompted  by  the  working  paper
produced  by  the  Commission  departments  entitled  "Revisiting  the  Dublin Convention:
developing  Community  legislation  for  determining  which  Member State  is  responsible  for
considering an application for asylum submitted in one of the Member States".6 At the same
time,  the  Commission  completed  the  evaluation  of  the  working  of  the  Dublin  Convention
which the Council had asked it to undertake. The conclusions of this exercise, set out in the
Commission working paper  "Evaluation of the Dublin  Convention",7 explain the  difficulties
of applying this instrument in practice.

Drawing on the ideas emerging from the debate on its discussion paper and the lessons of the
evaluation, the Commission adopted a proposal for a Regulation on 26 July 2001 establishing
the criteria and mechanisms for determining the Member State responsible for examining an
asylum  application  lodged  in  one  of  the  Member  States  by  a  third-country  national,8  in
accordance  with  Article  63(1)(a)  of  the  EC  Treaty.  The  Commission's  proposal  is  based  on
the same principles as the Dublin Convention, i.e. it seeks to assign responsibility to a single
Member  State,  determined  on  the  basis  of  objective  criteria:  normally,  the  Member  State
which  played  the  most  important  role  in  the  entry  or  residence  of  the  asylum-seeker.  The
proposed regulation does, however, contain new provisions aimed at:

-  speeding  up  the  process  of  determining  the  Member  State  responsible  by  setting  shorter
deadlines for the completion of procedures;

-  making  the  system  more  efficient  by  promoting  cooperation  between  Member  States  in
order to determine the Member State responsible;

- helping to keep family groups together.

The proposal is currently being examined by the Council and the European Parliament.

Proposal  for  a  Directive  on  the  qualification  and  status  of  persons  as  refugees  or  as
beneficiaries of subsidiary protection

On  12  September  2001  the  Commission  adopted  a  proposal  for  a  Council  Directive  on
minimum  standards  for  the  qualification  and  status  of  third-country  nationals  and  stateless
persons  as  refugees  or  as  persons  who  otherwise  need  international  protection.9  The
discussions of the proposal within the appropriate Council bodies should start at the beginning
of 2002.

The  proposal  lays  down  rules  for  a  common  definition  of  the  concept  of  “refugee”,  as
contained in the Geneva Convention, and a common definition of beneficiaries of subsidiary
protection. A minimum standard of subsidiary protection will be available to complement the
Geneva Convention in all Member States.

6

7

8

9

SEC(2000)522.
SEC(2001)756.
COM(2001)447, 27.7.2001.
COM(2001) 510 final, 12.9.2001.

6

                                                
The proposal deals with ways of assessing the applicant’s fears, the needs arising sur place,
the internal protection alternative and the reasons for persecution.  It also considers the issue
of the “agent of persecution”. Persecution is most clearly evident when it emanates from the
state  itself.  However,  the  proposal  recognises  that  persecution  can  also  originate  from  non-
state agents when a state is unable or unwilling to provide effective protection. In such cases
refugee status can also be granted. The proposal accepts that when part of the state where the
applicant  comes  from  is  deemed  safe,  or  when  a  quasi-state  body  (as  in  UN  administered
territories,  for  example)  can  be  considered  as  a  protector,  the  applicant  has  no  claim  for
international protection. Issues of cessation of and exclusion from international protection are
also covered.

The proposal also includes provisions on minimum rights and benefits to be enjoyed by the
beneficiaries  of  both  refugee  and  subsidiary  protection  status.  In  the  main,  the  rights  and
benefits  attached  to  both  international  protection  statuses  are  the  same.  However,  in
recognition  of  the  primacy  of  the  Refugee  Convention  and  of  the  fact  that  the  need  for
subsidiary protection is in principle more temporary, entitlement to some important rights and
benefits, such as the access to work and integration programmes, and the granting of a multi-
annual residence permit, is incremental for beneficiaries of subsidiary protection.

Common  legislation:  fair  treatment  of  third-country  nationals,  entry,  residence  and
freedom of movement within the EU

The Commission believes that the fair treatment of third-country nationals and beneficiaries
of  international  protection  should  be  provided  for  in  the  same  legislation,  unless  there  are
fundamental  reasons  for  drawing  a  distinction.  There  are  therefore  two  further  proposals
which  also  apply  to  refugees  within  the  meaning  of  the  Geneva  Convention.  These  are  the
amended proposal  for a Council  Directive on the  right to family reunification, presented  on
10 October  2000,10  and  the  proposal  for  a  Council  Directive  concerning  the  status  of  third-
country nationals who are long-term residents, presented on 13 March 2001.11 These put the
finishing touches to the first stage of the status harmonisation.

On 28 June 2001, the Council adopted a Directive supplementing the provisions of Article 26
of  the  Convention  implementing  the  Schengen  Agreement  of  14  June  1985,  dealing  with
carriers' liability.12 It contains a safeguard clause ensuring that penalties imposed are without
prejudice  to  Member  States’  obligations  in  cases  where  a  third-country  national  seeks
international  protection.  This  clause  also  applies  in  the  case  of  the  Framework  Decision  on
measures against the facilitation of unauthorised entry and residence (currently being finalised
for  formal  adoption  in the Council). As far  as  the  Framework  Decision  on  the  fight  against
human  trafficking  and  penal  measures  against  facilitators  is  concerned  (which  is  also  being
finalised for formal adoption), any Member State may decide in its national law and practices
not to penalise action if the sole aim is to provide humanitarian assistance.

The Commission's proposal for a Council Directive relating to the conditions for freedom to
travel  in the territory of  the  Member  States  for  periods  not  exceeding  three  months  and  the
conditions  of  entry  and  movement  for  periods  not  exceeding  six  months,13  presented  on  10
July 2001, can also applied to beneficiaries of international protection in a Member State.

10

11

12

13

COM (2000) 624 final.
COM(2001) 127 final.
Council Directive 2001/51/EC, OJ L 187, 10.7.2001, p. 45.
COM(2001) 388.

7

                                                
1.2

Flanking measures

European Refugee Fund (ERF)

The ERF (which has a budget of €216 million) was created by Council Decision 2000/596/EC
of 28 September 200014 to promote solidarity between Member States in matters of asylum by
helping and encouraging the efforts they make in receiving and bearing the consequences of
receiving  refugees  and  displaced  persons.  Resources  are  distributed  in  proportion  to  the
burden of expenditure on each Member State, given the different directions taken by the flows
of persons in search of protection. To achieve this objective the Fund supports Member States'
action in three areas: reception, integration and voluntary repatriation. The ERF also supports
actions  of  Community  interest  and  innovatory  or  transnational  measures.  Finally,  the  Fund
may be used to finance emergency measures to provide temporary protection in the event of a
mass influx of displaced persons.

The  Fund  will  operate  in  its  present  form  until  31  December  2004,  on  the  basis  of
programmes submitted by the Member States annually. This allows for multiannual planning,
while at the same time offering flexibility, so that any changes in the flows and numbers of
persons in search of protection can be taken into account. Another important element  in  the
Fund's  present  form  is  that  arrangements  for  implementation  are  decentralised:  the  Member
States are responsible for drafting the annual programmes, selecting projects and monitoring,
verifying and evaluating the action taken.

The Commission approved the Member States' co-financing requests for 2000 and 2001 on 3
April  2001.  A  total  of  €24  million  and  €32.5  million  was  distributed  among  the  Member
States in the form of ERF contributions in 2000 and 2001 respectively. Annex 3 shows how
the Member States' allocations were divided between the three main types of action. As can
be seen from the graphs, the largest share of ERF resources in both 2000 and 2001 is being
used for improving reception conditions in the Member States, with almost equal shares going
towards facilitating integration and voluntary repatriation.

Finally,  following  the  2000  and  2001  calls  for  proposals  for  Community  actions,  projects
were  selected  for  a  total  budget  of  €1.3  million  and  €1.7  million  respectively,  covering
networking  activities,  awareness-raising  and  information  campaigns,  studies  on  legislation,
policy  and  practice  relevant  to  one  of  the  three  ERF  types  of  action.  These  projects  are
expected to have a considerable multiplier effect and will contribute to improving and further
developing policy at Community and national level.

ARGO

On 16 October 2001 the European Commission approved a proposal for an action programme
to  provide  much-needed  improvements  in  administrative  cooperation  between  the  Member
States.15 The need for such action was also pointed out in both Commission Communications
on asylum and immigration. The objective of the action programme, known as ARGO, is to
reinforce  the  effectiveness  of  the  relevant  procedures  in  the  fields  of  asylum,  visas,
immigration and the control of external borders and assist the national administrations in the
implementation of the Community legislation based on Articles 62 and 63 of the EC Treaty,
as well as to ensure openness in the application of this legislation.

14

15

OJ L 252, 6.10.2000, p.12.
COM(2001) 567 final.

8

                                                
The  actions  covered  in  ARGO  must  aim  at  the  implementation  of  the  relevant  Community
rules regardless of which national administration is responsible for undertaking those actions.
The  ultimate  target  is  to  avoid  differences  in  national  practices  that  might  prejudice  the
establishment of an area of freedom, security and justice. The proposal also defines the types
of action (training, staff exchange, development of best practices, studies, etc.) to be proposed
by the national administrations. Community actions in this field will focus mainly on:

(cid:1)  Developing and promoting use of the best new working methods, with particular attention
to  computerisation  and  electronic  data  exchange,  to  help  Member  States’  national
administrations perform their tasks more efficiently.

(cid:1)  Defining and upgrading a common training policy.

(cid:1)  Developing  a  common  working  methodology  and  culture  between  the  Member  States  to

foster a better understanding of the administrative processes in each Member State.

Support  for  activities  in  the  area  of  asylum  will  cover:  promoting  the  establishment  and
operation of the  common  European  asylum system, leading to  a common asylum procedure
and a uniform status; facilitating the determination of the state responsible for examining an
asylum  application;  support  for  the  approximation  of  rules  on  recognition  and  content  of
protection  status;  promoting  the  efficiency  and  fairness  of  the  asylum  procedure  and
increasing convergence in decisions; developing resettlement programmes, entry facilities and
legal means for admission into Member States on humanitarian grounds.

1.3. Other measures and legislation connected with asylum policy

EQUAL

The Community initiative,  EQUAL,  seeks  to  combat  exclusion  and  inequality  in  the  labour
market and  includes  asylum-seekers in  its  target  group.  EQUAL  is  funded  by  the  European
Social  Fund,  which  is  providing  €2.973  million  for  2000-2006,  which  must  be  matched  by
contributions from Member States. The initiative is coordinated across the EU and has been
developed  on  a 
improve  employability,
entrepreneurship,  adaptability,  gender  equality  and  the  social  and  vocational  integration  of
asylum-seekers. The aim is to develop and test innovative approaches, working in cooperation
with partners from other Member States, with a view to identifying good practice which can
then inform mainstream policies and provision.

thematic  basis, 

the  need 

reflecting 

to 

Each  Member  State  is  responsible  for  identifying  its  domestic  priorities  for  EQUAL  and
reflecting these in its national plan. All Member States were required to allocate resources to
meet the needs of asylum-seekers. The EC completed negotiations with all Member States on
the  content  of  the  national  plans  for  EQUAL  in  2001.  The  proportion  of  funds  allocated  to
address the needs of  asylum-seekers  varies  across  the  EU,  with  an  overall  allocation  of  4%
(almost €125 million from 2000 to 2006).

EQUAL will be delivered by development partnerships which draw together a wide range of
participants. Networking at EU level will have to ensure that EQUAL takes account of similar
work  being  carried  out  via  other  European  funding  regimes  (in  particular  ERF)  and  to
consider the implications of any wider policy changes related to asylum-seekers.

9

Fighting against discrimination, racism and xenophobia

The  Council,  acting  on  a  proposal  by  the  Commission,  has  adopted  a  series  of  instruments
since  mid-2000  to  give  effect  to  the  new  Article  13  of  the  EC  Treaty.  Council  Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons
irrespective of  racial or  ethnic  origin16  must  be  incorporated  into  national  legislation  by  the
Member  States  by  19  July  2003.  Council  Directive  2000/78/EC  of  27  November  2000
establishing a  general framework  for equal  treatment  in  employment  and  occupation17  must
be  transposed  by  the  Member  States  by  2  December  2003  at  the  latest.  At  the  same  time,
Council  Decision  of  27  November  2000  established  a  programme  of  Community  action  to
combat discrimination,18 with a budget of €100 million for 2001-2006.

As  part  of  the  cooperation  to  combat  racist  and  xenophobic  crimes,  the  Commission  will
present in parallel with this  communication  a proposal to convert a  joint  action  dating  from
199619 into a framework decision, with the addition of certain improvements. The aim of the
text  is  twofold:  first,  to  ensure  that  racism  and  xenophobia  are  punishable  in  all  Member
States  by  effective,  proportionate  and  dissuasive  criminal  sanctions,  which  may  lead  to  the
extradition or handing over of the individual concerned, and, second, to improve and promote
judicial cooperation by removing any potential obstacles.

PART II.        LINK  BETWEEN  INTERNATIONAL  PROTECTION  OBLIGATIONS
AND SECURITY

2.1.

Preliminary remarks

Conclusion 29 of the extraordinary Justice and Home Affairs Council of 20 September 2001,
organised in the wake of the tragic events of 11 September in the United States, invited “the
Commission to examine urgently the relationship between safeguarding internal security and
complying  with  international  protection  obligations  and  instruments”.  The  Commission's
preliminary  findings  are  presented  in  this  section.  The  Commission  is  willing  to  produce  a
Commission  working  document  to  examine  the  relationship  between  protection  obligations
and internal  security  in  greater  detail.  This  will  specifically  review  actual  and  proposed  EC
legislation  in  the  field  of  immigration  and  asylum  and  study  the  mechanisms  for  excluding
those who do not deserve international protection and for dealing with excludable persons. It
will  also  include  a  "road  map"  to  serve  as  a  guide  to  the  current  situation  in  Europe  and
provide pointers for the way ahead.

2.2

Access to asylum procedures and exclusion from refugee status

Whatever approach is taken in this regard, it is necessary to ensure that refugees and asylum-
seekers do not become victims of recent events. In this respect, the Commission believes that
all  persons  requesting  asylum  should  be  granted  access  to  a  procedure  in  the  EU  Member
State responsible for assessing the claim. In order to implement the 1951 Refugee Convention
in good faith (and “fully and inclusively”),  it  is essential to  determine  whether  an  applicant
fulfils the requirements of the Convention. Automatic bars to consideration of asylum claims,

16

17

18

19

OJ L 180, 19.7.2000, p. 22.
OJ L 303, 2.12.2000, p.16.
OJ L 303, 2.12.2000, p.23.
96/443/JAI:  Joint  Action  of  15  July  1996  adopted  by  the  Council  on  the  basis  of  Article  K.3  of  the
Treaty on European Union, concerning action to combat racism and xenophobia, OJ L 185, 24.7.1996,
p. 5.

10

                                                
ie to start the asylum procedure, even of suspected criminals, are therefore not in conformity
with the Refugee Convention.

It is equally important to ensure that criminals committing or planning serious crimes, such as
terrorists,  do  not  take  advantage  of  the  refugee  protection  system.  Member  States  have  a
responsibility  to  implement  the  exclusion  clauses  of  the  Geneva  Convention  rigorously  to
fight  such  abuses.  Indeed,  the  exclusion  clauses  contained  in  Article  1(F)20  of  the  Refugee
Convention  not  only  permit  but  clearly  oblige  the  contracting  states  to  exclude  certain
categories of individuals from protection as refugees. The rationale underlying the exclusion
provisions  is  that  certain  acts  are  so  grave  as  to  render  their  perpetrators  undeserving  of
protection as refugees, and the receiving country must be protected from persons who present
a danger to public safety or national security. However, because exclusion from refugee status
may have potentially life-threatening consequences, such decisions should be made within the
asylum  procedure,  by  an  authority  with  expertise  and  training  in  refugee  law  and  status
determination.

In line with several United Nations General Assembly recommendations and Security Council
resolutions,  most  recently  Resolution  1373  of  28  September  2001,  and  in  accordance  with
international  refugee  case  law,  exclusion  of  persons  involved  in  terrorist  acts  from  refugee
status  may  be  based  on  either  of  the  three  grounds  listed  in  the  exclusion  clause  of  Article
1(F), depending on the circumstances of the case.

States have interpreted the phrase “serious reasons for considering”, used in Article 1(F), as
meaning that no evidence stricto sensu, or full proof, is required. The Commission working
document will elaborate on the possibility not to start with examining the “inclusion clauses”
of  the  Refugee  Convention,  contained  in  article  1A  of  the  Convention,  when  examining
further the possible applicability of Article 1(F) for terrorist acts. It will also examine issues
dealing with the notion of “serious reasons for considering”, the type of investigation or the
personal involvement.

2.3

Extradition/surrender, prosecution or protection against refoulement

The international law principle  known  as  aut dedere aut judicare provides a  solution  to  the
inherent contradiction between the state's need, and indeed obligation, to combat criminal acts
such  as  terrorism,  and  the  individual's  entitlement  to  protection  against  refoulement.
According to this principle, the state is obliged either to surrender or to prosecute those who
have lost an appeal against a decision to exclude them from refugee status.

If there is no possibility of trying the person, given the absence of an International Criminal
Court, he or she should in principle be extradited, if extradition is legal and practicable, to the
country  of  origin,  another  EU  Member  State  or  another  third  country.  Extradition  may,
however,  be  impossible  because  of  legal  obstacles:  the  protection  against  refoulement
provided  for  in  human  rights  instruments  such  as  the  United  Nations  Convention  against
Torture,  the  International  Covenant  on  Civil  and  Political  Rights  and  the  European

20

The provisions of this Convention shall not apply to any person with respect to whom there are serious
reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the
international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission
to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

11

                                                
Convention on Human Rights is absolute in nature, that is to say it admits no exceptions. The
European Court of Human Rights has repeatedly  affirmed that the  European Convention on
Human  Rights  prohibits,  in  absolute  terms,  torture  and  inhuman  or  degrading  treatment  or
punishment. Nevertheless, extradition must be considered legal when it is possible to reach an
agreement  with  the  government  that  is  going  to  try  the  person,  addressing  the  concerns
connected  with  potential  violations  of  Article  3  of  the  European  Convention  of  Human
Rights.

As no existing international legal instrument regulates the status and rights of “excludable but
non-removable” persons, the question  that  currently  remains  unresolved,  at  EU  level  too,  is
what  to  do  with  this  group  of  people.  Some  of  them  disappear  from  sight  and  lead  a
clandestine  existence,  others  are  detained,  if  the  law  allows  this  possibility.  The  issue  is
therefore urgently in need of further examination.

Examination  of  internal  security-related  provisions  in  Commission  initiated

2.4
proposals for directives in the asylum field

The  current  proposals  for  Community  legislation  in  the  field  of  asylum  and  immigration,
submitted by the Commission, all contain standard provisions to allow third-country nationals
thought  to  pose  a  threat  to  national  or  public  security  to  be  excluded  from  the  right  to
international protection and residency or denied access to certain benefits. Attention is drawn
in particular to Article 28 of the Directive on temporary protection; Articles 14, 17 and 19 of
the  proposal  for  a  Directive  on  refugee  status  and  subsidiary  protection;  Articles  4,  26,  28,
33(2)(c)  of  the  proposal  for  a  directive  on  asylum  procedures;  and  Article  22(1)(d)  of  the
proposal for a directive on reception conditions of asylum-seekers. However, the Commission
is  fully  prepared,  as  part  of  the  current  discussions  and  negotiations,  to  re-examine  the
relevant  provisions  in  its  proposals  in  the  light  of  the  changed  circumstances  and  consider
ways  and  means  of  further  enhancing  the  fight  against  terrorism,  without  prejudice  to  the
relevant international obligations that underlie the proposals. The results of this review will be
included in the working document referred to earlier.

PART III.       COMMON ANALYSIS

3.1.

Policy on statistics

The  JHA  Council  of  28/29  May  2001  adopted  Council  Conclusions  regarding  common
analysis and the improved exchange of statistics on asylum and migration. It was agreed that
statistics  would  be  made  more  widely  available  to  the  public  and  more  analysis  would  be
introduced.

The Commission's contribution to this debate took the form of a staff working paper21 which
argued that (a) data should continue to be collected and, where necessary, extended and fine-
tuned,  (b)  the  comparability  of  the  statistics  should  be  improved  and  the  data  made  more
available and (c) a reporting system should be established, reflecting the needs of the Member
States  and  the  EC  institutions,  subject  to  new  resources  being  found.  The  paper  further
highlighted  the  fact  that  the  existing  annual  collection  of  migration  data  was  no  longer
sufficient for the purpose of developing a common EU migration policy.

21

Commission staff working paper on the exchange of statistical information in the field of asylum and
migration (SEC (2001) 602).

12

                                                
According to the Conclusions, future action required the development of a comprehensive and
coherent  framework  for  improving  statistics.  The  Commission  was  invited  to  take  action,
taking into account the principles and objectives laid down in an Annex to the Conclusions. It
was to submit its Action Plan early in 2002. This would succeed the 1998 Action Plan, on the
basis  of  which  the  Statistical  Office  of  the  European  Communities  (Eurostat)  started
collecting  monthly  statistics  on  asylum  and  illegal  entry  within  the  context  of  the  CIREA22
and CIREFI23 Council working groups respectively. With the extension of data collection to
the candidate countries, Norway and Iceland, the objectives of the 1998 Action Plan were all
implemented in 2000.

A new Action Plan could run for the remainder of the transitional period of Article 67 of the
EC  Treaty  and  cover  inter  alia  the  introduction  of  common  methods  of  statistical
confidentiality  (protection  of  the  individual),  new  variables  for  existing  data  collection  and
the  introduction  of  Community  legislation  to  determine  the  definitions,  the  scope  of  data
collection  and  the  obligations  of  the  providers  and  the  Commission.  The  Commission  is
currently consulting Member States on the approach to take.

However, the focus of work on asylum statistics in 2002 must already be on key issues in the
future Action Plan such as the implementation of new publication rules, the preparation of a
first public annual report on Community statistics in the field of asylum and migration.

3.2.

Information, exchange and analysis

Figures  alone  are  not  sufficient  for  understanding  asylum  issues  and  adopting  appropriate
decisions. This requires further in-depth analysis of root causes, the situation in countries of
origin and transit, violations of human rights, consequences for individuals, methods of entry
and other related matters. Member States have gathered considerable information and gained
expertise  in  this  field,  but  the  European  dimension  has  not  yet  been  sufficiently  explored.
Although formal and informal networks for exchanging information have been developed for
this  purpose  over  the  years,  further  improvements  in  the  exchange  of  intelligence  and
information on a European level are required to enable the Community to develop an effective
common asylum policy.

The  Commission  is  considering  the  creation  of  a  European  Migration  Observatory,  which
could monitor and carry out comparative analysis of asylum and  legal  and illegal  migratory
flows. The Commission also stresses the need to  develop adequate structures at EC level in
order to allow for more coordinated action by the enforcement agencies of the Member States.

The  Commission,  will  explore  these  issues  further  in  2002,  in  consultation  with  various
partners.

PART IV.       THE EXTERNAL DIMENSION

4.1.

Enlargement

Issues related to  asylum  are  a key  component of EU  action  in  both  the  pre-accession  phase
and the negotiation process. Talks are currently under way on Chapter 24 (Justice and Home
Affairs) with all the candidate countries negotiating accession to the European Union except
with Romania. With this country, negotiations on Chapter 24 are expected to be opened in the

22

23

Centre for Information, Discussion and Exchange on Asylum.
Centre for Information, Discussion and Exchange on the Crossing of Frontiers and Immigration.

13

                                                
course of 2002. The entire acquis communautaire on asylum, based on the 1951 Convention
on  the  Status  of  Refugees,  has  to  be  accepted  and  transposed  by  the  candidate  countries.
During the negotiations the EU stresses that by the time of accession all candidate countries
must  have  in  place  a  fair,  effective  and  efficient  system  for  the  treatment  of  asylum
applications, especially with regard to the safeguards necessary to respect fully the principle
of non-refoulement and the independent appeal procedure.

Alignment  with  the  acquis  communautaire  on  asylum  in  the  candidate  countries  requires  a
major effort in terms of institution- building and improvements in implementation capacity in
the applicant countries. This implies providing adequate staff and appropriate training in the
national services processing asylum claims as well  as for  border  guards, and  increasing  and
improving  reception  facilities  for  asylum-seekers.  To  this  effect,  the  EU  is  providing
extensive  assistance  to  the  candidate  countries  through  the  Phare  Horizontal  programme  on
Justice and Home Affairs, the multidisciplinary programme that targets all candidate countries
except  Malta  and  Cyprus.  The  EU  is  also  providing  assistance  though  the  Phare  National
Programs  for  each  central  and  eastern  European  candidate  country  by  means  of  “twinning”
projects  between  the  public  administration  of  the  Member  States  and  of  the  candidate
countries.

Under the Phare Horizontal Programme on JHA, a project supporting all candidate countries,
except  Malta,  Cyprus  and  Turkey,  on  their  adoption  and  implementation  of  the  acquis  on
asylum has been executed in 1999 and 2000. It resulted in the drafting of a National Action
Plan  for  each  candidate  country,  which  has  been  or  is  being  implemented,  either  under
twinning projects or through international actions. For Turkey, programming has started and
pilot  projects  will  be  launched  in  2002.  As  far  as  Cyprus  and  Malta  are  concerned,  pre-
accession  funds  are  supporting  the  harmonisation  process  in  the  field  of  JHA.  Cyprus  and
Malta are also participating with their own funds in some activities of the PHARE Horizontal
programme for JHA.

4.2

High Level Working Group on asylum and migration

Asylum matters are also of importance to the European Community in its relations with other
third countries. In a first effort to develop a comprehensive policy on migration and asylum,
the  Council  created  the  High  Level  Working  Group  on  asylum  and  migration  (HLWG)  in
December  1998.  Six  action  plans  (on  Afghanistan  and  the  neighbouring  region,  Iraq,
Morocco, Somalia and Sri Lanka, Albania and the neighbouring region) were adopted by the
Council in 1999 and 2000. In its analysis of the root causes of migratory flows and flight the
HLWG  pays  special  attention  to  circumstances  in  the  countries  concerned  that  could
constitute a well-founded fear of persecution for reasons mentioned in the 1951 Convention
relating to the Status of Refugees. In an effort to target the main causes of migratory flows,
each  of  the  action  plans  proposes  a  set  of  measures,  including  some  directly  or  indirectly
related to asylum. Measures to promote respect for human rights, the rule of law and minority
rights are included, and special attention is given to helping third countries in their efforts to
strengthen  their  institutional  capacity  to  deal  with  asylum  requests  that  meet  the  minimum
international standards. The HLWG also calls for better cooperation between the EU and the
UNHCR and between the EU and those third countries that are faced  with  large  influxes  of
refugees,  like  Pakistan  and  Iran.  In  the  action  plans,  the  Community  commits  itself  to
continuing to assist refugees and IDPs by funding actions and programmes. The work of the
HLWG has also contributed to the coordination of efforts of the Community and the Member
States to assist third countries in dealing with the refugees on their territory.

14

In an effort to promote the possibilities for implementing the asylum and migration measures
contained in the action plans, a new budget line on cooperation with third countries in these
areas (B7-667) was created in 2001 (€10 million). A number of projects aimed at developing
the  asylum  systems  of  certain  countries  of  transit  have  been  selected.  This  line  does  not
finance  humanitarian  aid  to  refugees  and  IDPs,  which  are  supported  by  humanitarian  aid
budget lines.

The HLWG produced a report in November 2000 for the attention of the European Council in
Nice. It evaluated its work and proposed ideas and measures for improving the approach and
working methods. The work of the HLWG paved the way for an innovative European policy
on  migration  and  asylum,  taking  into  account  the  root  causes  of  migration  and  its
consequences  in  the  countries  of  origin  and  transit  and  in  the  countries  of  destination.
Improving its working methods, including the method for drawing up any new action plans,
will  imply  inter  alia  greater  involvement  by  the  third  countries  concerned  on  the  basis  of
genuine  partnership  and  greater  coordination  and  cooperation  with  Member  States  and
international governmental and non-governmental organisations active in these countries. The
availability  of  the  new  budget  line  from  2001  onwards  has  already  helped  to  improve
implementation of the action plans. An increase in this budget will no doubt contribute further
to the implementation of the external policies on asylum and migration.

4.3. Other countries

There  have  been  intensive  discussions  with  countries  in  regions  beyond  the  candidate
countries,  particularly  the  countries  of  the  Western  Balkans,  the  Russian  Federation  and
Ukraine. This dialogue has been conducted on the basis of the contractual relations between
the EU and the countries in question, and in some cases the relevant CFSP instruments. The
issue of asylum and European standards in this area has been the subject of discussion within
the relevant frameworks for political dialogue and has received considerable attention in the
corresponding  Community  budgetary  instruments.  On  28  March  2001  a  ministerial  Troika
and  counterparts  from  the  Western  Balkan  countries  issued  the  Sarajevo  Declaration  on
regional  cooperation  and  alignment  with  European  standards  in  the  area  of  asylum  and
migration.  Practical  implementation  will  be  supported  by  the  CARDS  Regional  Programme
on  the  precondition  of  a  continuous  strong  commitment  of  the  Western  Balkans  States.  A
draft action plan for justice and home affairs is currently being developed between the EU and
Ukraine, where asylum and migration are at the top of the agenda. Budget heading B7-667 is
being used to support pilot projects here and in Albania and the neighbouring region.

Discussions  on  asylum  are  also  being  prepared  for  the  future  within  the  framework  of  the
Barcelona process.

Dialogue with the USA and Canada is also very  fruitful. Cooperation in the field of asylum
policy is to be stepped up with both these countries.

4.4.

Relations with the United Nations High Commissioner for Refugees

As  a  result  of  the  closer  partnership  between  the  Commission  and  the  UNHCR  on  asylum
matters, the Commission engaged in constant dialogue with the UNHCR throughout 2001 on
its  legislative  proposals  and  policies  and  on  developments  such  as  the  moves  within  the
UNHCR  to  strengthen  the  system  of  international  protection.  Together  with  the  Member
States, the Commission has played an active part in the Global Consultations and has helped
to fund the various sessions of these Consultations. It will continue to follow this process very
closely in the Ministerial Conference of the State parties to the Geneva Convention of 1951,

15

to  be  convened  by  Switzerland  and  the  UNHCR  in  mid-December.  The  Commission  also
expects  to  be  consulted  on  the  development  of  an  agenda  for  international  protection.  The
Global Consultations and the establishment of a common European asylum system reinforce
each other and are mutually beneficial.

An extra dimension has been added  to  Community  action  in relation to  the  UNHCR  by  the
launch of a strategic dialogue on humanitarian and  development  issues  intended  to  increase
transparency,  improve  forecasting,  cooperation  and  funding,  while  supporting  the  key
strengths of the UNHCR. The Community  is  firmly  committed  to  supporting  the  UNHCR's
international  mandate  in  order  to  provide  better  protection  for  refugees  and  find  lasting
solutions. In 2001 the Community was the third largest donor of funds to UNHCR efforts.

PART V.         APPLYING  THE  OPEN  COORDINATION  METHOD  TO  ASYLUM
POLICY

5.1.

Background

In its communication on asylum of November 2000, the Commission referred to the need to
develop  an  open  coordination  method  for  asylum  policy  to  support  legislative  policy  and
accompany  the  convergence  process.  The  Commission  explained  the  workings  of  such  an
open  coordination  method  in  relation  to  immigration  policy  in  its  Communication
COM(2001)  387  final  of  11.7.2001.  This  has  a  number  of  points  in  common  with  asylum
policy.  The  right  to  grant  asylum  is  still  closely  linked  to  national  sovereignty  and  the
constitutional history of each Member State. Up until 1999 asylum issues were primarily dealt
with by the EU at intergovernmental level. International protection is granted at the level of
the  individual  Member  State.  Because  of  the  international  nature  of  migratory  movements,
including  those  linked  with  the  problem  of  international  protection,  and  the  way  different
aspects  of  migration  policy  are  interconnected,  a  mechanism  is  needed  that  allows  an
evaluation of the progress made towards achieving common European objectives and changes
to be made  to these objectives if necessary.  Finally, the whole issue  of exchanging  good or
best practice is ideally suited to asylum issues.

However,  the  EC  Treaty  (particularly  Article  63)  and  the  conclusions  of  the  Tampere
European Council are much more ambitious as regards harmonisation in asylum matters than
in  immigration,  in  terms  of  both  objectives  and  legal  provisions.  Moreover,  the  right  of
asylum  is  largely  governed  by  a  series  of  international  obligations  entered  into  by  the  EU
Member  States,  foremost  among  them  the  Geneva  Convention  of  1951  on  the  Status  of
Refugees and the 1967 Protocol. The Dublin Convention has raised the issue of asylum within
the EU in recent years and introduced a series of binding criteria and mechanisms. At national
level, the rulings by courts and appeal bodies have had a decisive impact.

The use of an open coordination method must therefore be specifically adapted to the field of
asylum.  It  will  assist  and  complement  the  Community  legislation  required  by  the  Treaty,
which is the core element of the entire common policy, accompanying it and smoothing the
transition to  the  second stage of the introduction of a common European  asylum  system, as
described  in  Communication  COM(2000)755.  Because  of  the  high  degree  of  convergence
sought  by  the  European  Union  in  asylum  policy,  the  Commission  also  believes  that  by
adopting the guidelines set out in point 5.2, the Council can signal that the targets for applying
the  open  coordination  method  are  more  ambitious  and  detailed  in  respect  of  asylum  affairs
than immigration policy.

16

The  proposal  is  to  apply  this  method  for  an  initial  period  up  to  the  presentation  of  the  first
instruments of the second phase.

The  Commission  intends  to  play  its  part  in  applying  this  open  coordination  method.  At  the
same  time  as  establishing  the  legislative  framework  it  will  therefore  also  support  the
application  of  this  method  by  formulating  proposals  for  European  guidelines  and  for  the
content of national action plans, by coordinating national policies promoting the exchange of
best  practice  and  monitoring  and  evaluating  the  impact  of  Community  policy.  It  will  also
international
organise  regular  consultations  with 
organisations.

third  countries  and 

the  relevant 

5.2.

European guidelines on asylum

The  open  coordination  method  is  based  essentially  on  the  Council  approving  multiannual
guidelines for the Union, together with a timetable for  achieving the objectives in the short,
medium  and  long  term.  These  guidelines  will  then  be  incorporated  into  national  policy  by
specific  objectives  being  set  to  take  account  of  national  disparities.  In  accordance  with  the
conclusions of the Tampere European Council and in the light of the proposals formulated in
its  Communication  on  a  common  asylum  procedure  and  uniform  status,  the  Commission
suggests that guidelines be produced in the first instance in the following areas: knowledge of
migratory movements; developing an efficient asylum system  that offers protection to those
who need it, according to a full and inclusive application of the Geneva Convention; returns;
relations with third countries; integration. The list could subsequently be amended under the
open coordination method.

The  following  guidelines  are  the  Commission’s  initial  suggestions.  There  will  be
consultations on them before the Commission presents a formal proposal.

First guideline: Improving understanding of migratory flows connected with humanitarian
admissions, in particular:

a. by contributing fully to improve the  collection and analysis of statistics on  migration and
asylum, with a view to implementing the EU action plan.

b.  by  identifying  the  priorities,  sources  and  research  partners  for  collecting  the  appropriate
information (situation in the countries of origin and transit, human rights violations, personal
reasons for migrating, individuals' stories, routes, etc.).

Second guideline: Developing an efficient asylum system that offers protection to those who
need  it,  according  to  a  full  and  inclusive  application  of  the  Geneva  Convention,  in
particular:

a. by encouraging cooperation and exchange of information between the consular services of
the Member States in the countries of origin and transit including on matters of visa policy.

b. by identifying measures and good practice with a view to ensuring a balance between the
legitimate objectives of countering illegal immigration and/or trafficking in human beings and
providing  access  to  asylum  procedures,  including  the  application  of  controls  at  external
borders.

c. by identifying the priorities and the resources devoted to fair and efficient treatment at the
reception  stage,  during  procedures  and  for  determining  the  Member  State  responsible  for
examining an asylum application.

17

d.  by  describing  the  training  objectives  for  the  relevant  staff  of  the  bodies  responsible  for
assessing  applications,  diplomatic  and  consular  officials,  police  and  border  guards  and
members of the appeals bodies. These objectives should include  exchanges of officials with
other EU Member States.

e.  by  identifying  ways  and  means,  over  and  above  the  measures  taken  to  give  effect  to  the
Community  instruments  now  being  adopted,  possibly  by  setting  precise  objectives,  and
evaluating their practical impact in order to:

- ensure the quality of the initial examination of the asylum application;

-  speed  up  the  process  and  enforce  the  deadlines  for  completing  the  various  stages  of  the
procedure (for asylum-seekers and for the administration and courts);

-  improve  the  percentage  of  transfer  decisions  following  the  determination  of  the  Member
State responsible that are actually enforced;

- improve provision of translation and interpretation (for the benefit of asylum-seekers and of
the administrative departments and courts);

- improve access to evidence.

f. by  clearly setting out national arrangements for  the  reception of asylum-seekers,  refugees
and beneficiaries of subsidiary or temporary protection.

g.  by  identifying  principles  and  techniques  for  improving  the  identification  of  individuals,
covered by the exclusion provisions, who do not deserve international protection.

h. by drafting guides to good practice on various matters raised by the processing of asylum-
seekers  and  their  dossiers,  which  might  serve  as  a  basis  for  producing  EU-wide  guides
(registration,  information  about  applicants,  issues  of  domicile,  measures  to  combat  fraud,
detection  of  forged  documents,  use  of  evidence,  means  of  determining  the  credibility  of
applications, language tests, etc.).

i. by paying particular attention to the situation and needs of unaccompanied minors, people
with special needs and gender issues.

j. by evaluating the merits of resettlement programmes, the possibility of processing  asylum
applications  outside  the  Member  State,  the  use  of  cessation  and  exclusion  clauses  and  the
system and arrangements for transferring protection.

k. by identifying the means and sources of information that can be used to assess whether a
person has ceased needing international protection.

l. by creating a framework which encourages contributions from local and regional authorities
and players, the social partners, civil society, NGOs and asylum-seekers themselves.

Third guideline: Improving the effectiveness of the policy on returns, in particular:

a.  by  identifying  measures  to  improve  cooperation  between  receiving  states,  countries  of
origin,  the  UNHCR,  IOM  and  NGOs  with  a  view  to  facilitating  voluntary  and  involuntary
returns.

18

b. by developing services providing information and helping to prepare people for return. This
might include evaluating the merits of trial visits.

c.  by  looking  at  ways  of  improving  the  number  of  expulsion  decisions  that  are  actually
enforced, possibly by setting specific targets and assessing their practical impact.

d.  by  preparing  guides  to  good  practice  on  the  various  issues  raised  by  the  return  of
individuals,  including  involuntary  repatriation  (escorts,  means  of  transport,  detention
conditions prior to expulsion, etc.), which might serve as a basis for EU-wide guides.

The Commission will shortly present a Green Paper outlining a policy on returns. On the basis
of the consultations which will follow, the Commission will finalise proposals in this area.

Fourth  guideline:  Including  matters  relating  to  international  protection  in  relations  with
third countries, in particular:

a.  by  supporting  measures  connected  with  policies  in  favour  of  human  rights  in  the  third
countries concerned in order to prevent, curb or end violations of such rights.

b. by taking account of the international protection dimension in the third countries concerned
when  drafting  and  implementing  development  cooperation  programmes  in  fields  such  as
education and training, health, environmental protection and social and economic conditions
(including conditions for refugees returning to their country of origin), by guaranteeing equal
opportunities for men and women.

c. by promoting the efforts of third countries to manage heterogeneous migratory flows and to
introduce  legislation  and  facilities  to  comply  with  international  obligations  on  international
protection.

d.  by  supporting  measures  aimed  at  promoting  the  return  of  refugees,  for  example  by
facilitating the social and economic reintegration of those who, having enjoyed protection in a
Member State, now no longer need it or voluntarily choose to return to their country of origin.

Fifth guideline: Ensuring that policies are framed to promote the integration or inclusion
of beneficiaries of international protection in a Member State, over and above the measures
taken to give effect to the Community instruments now being adopted, in particular:

a.  by  identifying  the  priorities  and  resources  for  framing  a  global  strategy  for  ensuring  the
integration or inclusion of refugees, beneficiaries of subsidiary or temporary protection in the
event  of  a  mass  influx  of  refugees,  taking  account  of  the  special  needs  of  children  and
unaccompanied minors.

b.  by  creating  a  framework  that  ensures  the  participation  of  local  and  regional  players,  the
social  partners,  civil  society  and  those  concerned  in  shaping  and  implementing  the  national
strategy.

c. by promoting the integration or inclusion of those concerned by means of information and
public awareness campaigns run in conjunction with all of the parties concerned.

d. by adopting specific measures to promote the social and economic integration or inclusion
of women.

19

e.  by  setting  up  programmes  to  help  new  arrivals  and  their  families  to  settle  in  their  new
surroundings,  including  programmes  to  help  minors  integrate  in  schools,  suitable  language
courses, information on cultural, political and social aspects of the host country, including the
nature of citizenship and fundamental European values.

f. by introducing measures to provide social  and  economic  assistance and health  services to
vulnerable individuals and victims of violence, trauma, torture or any other form of inhuman
or  degrading  treatment  or  those  who  have  suffered  at  the  hands  of  people  smugglers  or
traffickers.

g.  by  fostering  the  active  participation  of  the  refugees  themselves  in  designing,  developing,
organising and assessing integration policy and services.

h.  by  assessing  the  validity  of  the  notion  of  civic  responsibility  by  defining  the  rights  and
responsibilities ensuring the fair treatment of third-country nationals who are legally resident
in the Member State in question and by identifying the conditions of access to nationality for
beneficiaries  of  international  protection,  taking  into  account  Article  34  of  the  Geneva
Convention.

This guideline does not apply to asylum-seekers and may be coordinated with the integration
strategy for third-country nationals who are legally resident in the Member States.

5.3.

Instruments

5.3.1. National action plans

In order to implement each of the guidelines on asylum, the Member States should draw up
national  action  plans  which  will  be  re-examined  and  adjusted  annually.  These  plans  would
consist  partly  of  a  review  of  action  taken  in  the  previous  year  in  relation  to  the  European
guidelines  and  partly  of  a  presentation  of  proposals  for  implementing  these  guidelines  on
asylum  in  the  year  to  come.  The  review  section  would  also  contain  information  on  the
interaction between the various measures taken and legal and illegal migration. It would draw
attention  to  interesting  experiments  and  examples  of  good  practice  as  well  as  the  problems
encountered, for example when solutions are clearly needed at European level. It would also
look  at  the  application  of  the  relevant  pieces  of  secondary  legislation,  the  incorporation  of
Community rules  into national law  and  their impact on the national situation.  In the second
section, dealing with their plans, the Member States would describe the measures proposed at
national, regional or local level, as appropriate, to give effect to the guidelines in the year in
question,  stating  their  national  objectives  in  each  area  and  the  proposed  timetable  for
achieving them.

The action plans will serve as a basis for a comprehensive evaluation of the implementation
of the common policy and the results achieved and will help to determine how the guidelines
should  be  adjusted  to  reflect  changing  needs.  In  the  light  of  these  reports,  the  Commission
will  prepare  a  summary  report  (along  the  lines  of  the  present  Communication)  to  highlight
common problems and identify areas where European solutions might be appropriate.

5.3.2 Framing and evaluating a common asylum policy

The Commission will actively support the framing of a common asylum policy, for example
by presenting the necessary Community legislation, monitoring enforcement and compliance
and  preparing  proposals  for  European  guidelines,  for  measures  to  promote  cooperation,  the
exchange of best practice, evaluation and follow-up. To this end the Commission will canvas

20

a wide range of opinions (by taking appropriate measures such as setting up committees and
working  groups)  among  senior  officials,  experts  in  the  Member  States,  the  UNHCR,
representatives of the social partners and local and regional government, as well as specialists
in particular areas under consideration and other representatives of civil society.

It is important to ensure that the candidate countries are informed of this process and involved
from  the  earliest  possible  stage  in  the  application  of  the  open  coordination  method,  before
their  accession,  via  appropriate  mechanisms.  This  will  constitute  useful  preparation  for
accession.

In carrying out these activities the Commission must ensure that asylum policy complements
and is  consistent  with  other  areas  of  internal  and  external  policy,  such  as  policies  on  social
integration, the EU's anti-discrimination strategy  and its  external  relations  and  humanitarian
aid. Policies should be mutually beneficial in a context of sustainable development. Asylum
policy should also promote equality between men and women in accordance with Article 2 of
the Treaty.

5.3.3 Participation of the European institutions, the UNHCR and civil society

In  view  of  the  multidimensional  nature  of  asylum  policy,  the  European  Parliament,  the
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  should  be  closely
involved in its elaboration and implementation. The Commission will also present the annual
report on asylum  to  these  institutions.  Talks  must  continue  with  the  institutions  involved  to
explore ways of involving them more effectively in the open coordination mechanism, so that
they can contribute to the process more fully.

The Commission will also ensure proper consultations with the UNHCR in accordance with
Declaration 17 annexed to the Amsterdam Treaty.

The  active  participation  of  political  leaders,  social  partners,  regional  and  local  players  and
other organisations involved, such as NGOs and associations representing asylum-seekers and
refugees as the parties directly involved, as well as the media at both national and European
level, is the key to the success of this policy and the achievement of the objectives laid down
in  the  guidelines.  The  Member  States  are  asked  to  take  the  measures  necessary  to  ensure
active participation of this kind at national level. The Commission, for its part, will take steps
to promote a dialogue with civil society at European level.

Part VI.           Recommendations

The Commission:

- recommends that the Council take note of its first report on the common asylum policy in
the EU;

- recommends that the open co-ordination method in asylum matters be endorsed for an initial
period, with a view to the adoption of guidelines by the end of the Spanish Presidency. The
national action plans would then be sent to the Commission so that a first evaluation cycle can
be completed by the end of 2003 at the latest;

- recommends that deadlines be set, by introducing a permanent follow-up mechanism, with a
view to the adoption of the instruments of the first stage of harmonisation in asylum matters
that still remain to be negotiated, based on the information provided by the Scoreboard;

21

- calls on the Member States to rapidly introduce implementing measures  to ensure  that the
benefits of the Eurodac system can be felt at Community level as soon as possible;

- calls for the rapid incorporation into national law of the Directive on temporary protection in
the event of a mass influx of displaced persons, which entered into force in August 2001;

-  calls  for  the  rapid  adoption,  in  the  first  six  months  of  2002,  of  the  decision  creating  the
ARGO action programme, with a view to launching the first projects as soon as possible;

- recommends  greater  efforts  to  give effect to the conclusions of the JHA Council  of  28-29
May 2001 on the collection and analysis of asylum statistics;

-  asks  the  Council  to  consider  ways  of  strengthening  cooperation  in  the  EU  partnership
context  with  third  countries  of  origin  and  transit  in  the  field  of  asylum  and  international
protection, taking into account the analysis of the work of the High-Level Group on asylum
and  migration  and  future  developments,  and  in  the  light,  in  particular,  of  the  report  on  this
Group referred to at the European Council in Nice.

22

Source: Eurostat

Statistical overview

FIGURE 1: TOTAL ASYLUM REQUESTS, IN THE EU, 1985 TO THE FIRST HALF OF 2001 (January to June 2001)

FIGURES IN THOUSAND, APPLICANTS FROM ALL COUNTRIES

Annex 1

V A LUE S I N T HOUSA ND

  800

  700

  600

  500

  400

  300

  200

  159

  191

  163

  100

  0

  672

  511

  517

  397

  292

  211

  300

  297

  264

  228

  243

  381

  352

  191

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001, 1st Semester 

FIGURE 2: DISTRIBUTION OF ASYLUM REQUESTS BETWEEN MEMBER STATES, 1998 TO FIRST HALF OF 2001

APPLICANTS FROM: ALL COUNTRIES

Others
16%

Germany
27%

Austria
6%

Belgium
10%

France
10%

Netherlands
11%

United Kingdo m
20%

23

FIGURE 3: TOP 10 COUNTRIES OF ORIGIN FOR ASYLUM-SEEKERS , BETWEEN 1999 AND THE FIRST HALF OF 2001

TOP COUNTRIES OF ORIGIN AS A PERCENT OF TOTAL AND ABSOLUTE NUMBERS

0

5 0 . 0 0 0

10 0 . 0 0 0

15 0 . 0 0 0

F R Y

I r a q

15 %

9 %

A f g h a n i s t a n

7 %

T u r k e y

6 %

I r a n

4 %

C h i n a

3 %

S r i   L a n k a

3 %

S o m a l i a

3 %

R u s s i a

3 %

B o s n i a   H e r z e g o v i n a

2 %

FIGURE 4: DISTRIBUTION OF TOTAL POSITIVE DECISIONS BETWEEN MEMBER STATES, 1999 TO FIRST HALF OF 2001

T O T A L  19 9 9 - 2 0 0 1

Others
17%

Germ any
19%

A us tria
3%

B elgium
3%

F ranc e
6%

N etherlands
17%

United Kingdo m
35%

24

FIGURE 5: CASES OF RECOGNITION UNDER GENEVA CONVENTION, EU 1996-FIRST HALF 2001

CASES OF RECOGNITION, FROM: ALL COUNTRIES

 43 839

 38 115

 36 745

 26 399

 28 409

 19 032

50000

40000

30000

20000

10000

0

1996

1997

1998

1999

2000

2001, 1st Semester 

FIGURE  6:  DISTRIBUTION  OF  CASES  RECOGNISED  UNDER  GENEVA  CONVENTION  BETWEEN  MEMBER  STATES,  1999  TO  FIRST
HALF OF 2001

CASES OF RECOGNITION, FROM: ALL COUNTRIES

Others
11%

A ustria
5%

Germany
31%

Belgium
4%

France
13%

Netherlands
4%

United Kingdo m
32%

25

Annex II

Reactions to Communication COM(2000)755 final and Studies

Opinion  of  the  European  Parliament,  the  Economic  and  Social  Committee,  the

A.
Committee of the Regions

The European Parliament delivered its opinion on 2 October 2001. It set ambitious targets for
the standards to be adopted in terms of both their scope and the rights and  guarantees to be
granted  to  asylum-seekers  and  beneficiaries  of  international  protection.  Parliament  was
particularly concerned to ensure the success of the first stage of harmonisation. The majority
of  its  comments  related  to  the  content  of  the  instruments  under  negotiation.  It  was  also
extremely  interested  in  ways  of  improving  capacity  so  that  greater  convergence  can  be
achieved in interpreting the situations in the countries of origin and transit of asylum-seekers
and beneficiaries of international protection.

The  Economic  and  Social  Committee  delivered  its  opinion  in  July  2001.  It  supported  the
objectives  and  principles  of  the  common  procedure  and  uniform  status,  as  proposed  by  the
Commission, while at the same time pointing to a number of factors that should be taken into
account, for example as regards the use of safe countries, the creation of a single procedure
(one-stop  shop),  the  examination  of  resettlement  programmes  and  the  processing  of  asylum
applications  outside  the  EU.  It  expressed  its  support  for  equal  status  for  refugees  under  the
Geneva  Convention  and  beneficiaries  of  temporary  protection.  It  endorsed  a  two-stage
process  of  harmonisation  based  on  the  EC  Treaty  and  the  introduction  of  convergence
measures and insisted that the Community becomes party to the Geneva Convention of 1951.
The opinion underlined the concern, expertise and involvement of the social partners and civil
society in matters of asylum policy.

The Committee of the Regions delivered its opinion in September 2001. It stressed the need to
recognise  the  specific  nature  of  the  asylum  issue,  which  was  different  from  immigration.  It
considered  the  discussion  of  a  one-stop  shop/single  procedure  premature  in  the  absence  of
harmonisation on  subsidiary  protection.  It  supported  the  introduction  of  a  fair,  efficient  and
quick procedure. It doubted the relevance of options such as resettlement. It argues in favour
of  better  reception  arrangements  for  asylum-seekers  throughout  the  EU  and  genuine
cooperation with the local and regional authorities to implement asylum policy.

B.

Comments of the UNHCR and NGOs

The  UN  High  Commissioner  for  Refugees  sent  a  detailed  reaction  in  November  2001.  It
warmly  welcomed  the  ambitious  nature  of  the  Commission  approach.  It  was  in  favour  of  a
single  procedure/one-stop  shop  provided  that  the  consideration  of  the  need  for  protection
followed  a  hierarchical  sequence,  starting  with  the  Geneva  Convention.  The  problem  of
access  to  the  territory  was  crucial,  and  guarantees  of  protection  must  be  inserted  in
instruments  providing  for  border  controls  and  the  management  of  migratory  flows.  It
advocated abandoning the current Dublin Convention criteria in favour of applications being
examined by the Member State in which they are made. The UNHCR is interested in further
Europe-wide analysis of the issues surrounding resettlement, but made clear that this should
not be a substitute for the right of asylum in the EU. The UNHCR hoped that the adoption of
the legislative package of the first stage of harmonisation would be based on rules of a high
standard, which would be detailed in content and based on a broad interpretation which took
account of the principles of international protection. It favoured a uniform status with rights at
least equal to those provided in the Geneva Convention, while preserving the specific nature
of  the  status  provided  for  by  that  Convention.  It  was  willing  to  contribute  actively  to

26

developing  statistical  and  analytical  tools,  if  necessary  by  creating  a  specialised  European
Centre, and techniques for ensuring convergence for the purpose of a common asylum policy
and a body of case law based on the application of Community law.

A  wide-ranging  debate  took  place  in  NGO  circles.  A  number  of  organisations  formally
recorded their comments and sent them to the Commission.

ECRE24 sent a very detailed reaction in June 2001, welcoming the objectives and principles
set  out  by  the  Commission.  However,  it  was  afraid  that  the  measures  to  be  adopted  by  the
Council  might  be  more  influenced  by  a  desire  to  dissuade  asylum-seekers  than  concern  to
protect them. It expressed its support for a single procedure and equivalent status for refugees
covered  by  the  Geneva  Convention  and  beneficiaries  of  subsidiary  protection.  It  was
interested in Europe-wide consideration of the question of  resettlement.  It  would like to see
thought  being  given  to  the  creation  of  a  central,  independent  body  for  documentation  and
information gathering, for example on the situation in the countries of origin.

In  May  2001  a  group  of  churches25  presented  their  comments  to  the  Commission.  They
stressed the difficulties experienced by asylum-seekers and refugees in gaining access to the
territory. They called for upward harmonisation, higher standards for examining the substance
of asylum applications and a single procedure/one-stop shop. While agreeing that the aim of
harmonisation was  not to allow  a  Community  body  to  take  individual  decisions  granting  or
refusing protection, the churches felt that there was a need to reconsider the restrictions under
Title IV of the EC Treaty (Article 68) on the possibilities for seeking preliminary rulings from
the European Court of Justice in order to further harmonisation and judicial review.

Amnesty  International  expressed  its  support  for  the  Commission's  aim  in  October  2001.  AI
was concerned about new penalties for illegal immigration and stressed that a high standard
should  be  set  for  the  introduction  of  a  common  asylum  procedure  and  uniform  status  and
international rules on human rights and the principle of non-refoulement should be respected.

C.

Update on studies

In its Communication of November 2000 the Commission  announced that  it would conduct
four  pieces  of  research,  into  the  single  procedure/one-stop  shop,  the  processing  of  asylum
applications outside the EC, resettlement and the transfer of protection. The first three studies
will  be  launched  before  the  end  of  2001  in  order  to  have  the  results  by  the  last  quarter  of
2002. The fourth will be launched before the end of 2002.

24

25

European Council on Refugees and Exiles.
Caritas Europa, Churches' Commission for Migrants in Europe, Commission of Conferences of Bishops
in  the  EC,  European  Conference  of  Commissions  for  Justice  and  Peace,  International  Catholic
Commission on Migration, Jesuit Refugee Service, Quaker Council.

27

                                                
ERF – Breakdown of actions by Member State

Annex III

D) Technical Assistance

C) Voluntary Return

B) Integration

A) Reception Conditions

%
0

%
3
3

%
7
6

0%

%
0
1

%
2
2

%
8
6

5%

%
5
2

%
5
3

%
5
3

5%

%
0
1

%
5
1

%
0
7

5%

%
2
3

%
2
3

%
1
3

5%

%
0
2

%
0
6

%
5
1

5%

5%

5%

%
0

5%

5%

%
8
1

%
7
4

%
0
3

%
2
3

%
2
3

%
2
3

%
0
4

%
5

%
0
5

%
5
9

%
1
3

%
3
5

%
1
1

%
0
7

%
0
2

%
5

4%

%
6
2

%
8
2

%
2
4

Total

2000

4%

%
6
9

5%

%
6
1

%
8

%
2
7

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Austria (3,80%)

Belgium (5,15%)

Finland (2,71%)

Germany (25,86%)
France (9,39%)

Greece (2,72%)

Ireland (2,63%)

Luxembourg (2,20%)
Italy (8,15%)

Netherlands (12,43%)

Portugal (2,23%)

Spain (3,10%)

Sweden (7,53%)
United Kingdom (12,09%)

2001

5%

%
5
1

%
5
1

%
6
6

5%

%
0
2

%
7
1

100%

90%

80%

70%

60%

50%

40%

30%

%
8
5

20%

10%

0%

2%

%
5

%
4
1

%
9
7

5%

5%

5%

%
5
2

%
5
3

%
5
3

%
2
3

%
2
3

%
3
6

%
2
3

%
1
3

5%

%
0
2

%
0
6

%
5
1

5%

%
0
1

%
5
1

%
3
1

%
0
1

%
0
7

%
3
7

5%

5%

5%

5%

D) Technical Assistance

C) Voluntary Return

B) Integration

A) Reception Conditions

5%

5%

5%

%
3
1

%
5
1

%
0
4

%
5

%
0
5

%
2
3

%
2
3

%
2
3

%
0
4

%
4
4

%
0
7

%
0
4

%
9
3

%
0
2

%
5

%
7
2

%
7
2

%
1
4

Total

Austria (4,48%)

Belgium (5,76%)

Finland (2,07%)

Germany (25,84%)
France (9,72%)

Greece (1,94%)

Ireland (2,18%)

Luxembourg (1,48%)
Netherlands (11,22%)
Italy (8,44%)

Portugal (1,60%)

Sweden (7,87%)
Spain (2,58%)
United Kingdom (14,84%)

28