Communication from the Commission to the Council and the European Parliament - Towards more accessible, equitable and managed asylum systems
Date: 2003-06-03
Institutions: European Commission
Subjects: European Union, UNHCR, approximation of laws, international cooperation, international human rights law, private international law, right of asylum

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 3.6.2003
COM(2003) 315 final

COMMUNICATION FROM THE COMMISSION
TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

Towards more accessible, equitable and managed asylum systems

   
TABLE OF CONTENTS

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE
EUROPEAN PARLIAMENT

Towards more accessible, equitable and managed asylum systems

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

I. 

II. 

III

3.1

3.2

IV. 

V. 

VI. 

6.1 

The relevant global and EU legal- and policy framework ........................................... 3

Analysis of the UK Paper............................................................................................. 5

UNHCR’s views .......................................................................................................... 6

Protection and solutions in regions of origin as part of the Convention Plus initiative:7

An EU-based mechanism as a step towards a common asylum system: ..................... 8

Views non-governmental organisations....................................................................... 9

Basic premises of any new approach to the international protection regime............. 10

Policy- objectives and approaches for more accessible, equitable and managed
asylum systems .......................................................................................................... 12

The orderly and managed arrival of persons in need of international protection in the
EU from the region of origin...................................................................................... 13

6.1.1

Policy Objective to be achieved................................................................................. 13

6.1.2 

Policy approaches needed to pursue the orderly and managed arrival of persons in
need of international protection in the EU from the region of origin: ....................... 13

6.2. 

Burden- and responsibility sharing within the EU as well as with regions of origin. 16

6.2.1

Policy Objective to be achieved................................................................................. 16

6.2.2

6.3. 

Policy approaches needed to pursue burden-and responsibility sharing within the EU
as well as with  regions of origin: .............................................................................. 17

The development of an integrated approach to efficient and enforceable asylum
decision-making and return........................................................................................ 19

6.3.1

Policy Objective to be achieved................................................................................. 19

6.3.2

Policy approaches needed in order to develop an integrated approach to efficient and
enforceable asylum decision- making and return: ..................................................... 20

VII. 

Conclusion and way forward ..................................................................................... 21

2

INTRODUCTION

The  letter  of  10  March  2003  from  the  Prime  Minister  of  the  United  Kingdom  to  the  EU
Presidency, requesting that the Presidency put the issue of the need for a “better management
of the asylum process ” on the agenda of the Spring 2003 European Council, constituted the
catalyst for an intense debate which is currently being held both within and outside the EU,
and to which all stakeholders in the asylum field contribute. Attached to the letter was a paper
outlining some ideas on how best to address the need for a new approach to asylum. Shortly
after  the  launch  by  the  United  Kingdom  of  their  paper,  UNHCR  also  presented  concrete
proposals for a substantially new approach to processing asylum claims.

The  Spring  European  Council  adopted  Conclusion  61,  in  which  it  is  stated  that:  “The
European  Council  noted  the  letter  from  the  UK  on  new  approaches  to  international
protection  and  invited  the  Commission  to  explore  these  ideas  further,  in  particular  with
UNHCR, and to report through the Council to the European Council meeting in June 2003."
With  this  Communication  the  European  Commission  responds  to  the  invitation  by  the
European Council to explore the issues raised in the UK paper. Under this specific mandate,
and  bearing  in  mind  the  short  time  span  between  the  two  European  Council  meetings,  the
Commission  has  considered  the  ideas  and  relevant  initiatives  already  in  the  EU  pipeline.  It
has not sought at this stage to provide a fully-fledged and definitive analysis of the ideas set
out in the UK paper, and proposed by  UNHCR. However, this Communication does set out
the Commission’s views on the basic premises of and objectives for a possible new approach
towards more accessible, equitable and managed asylum systems.

Such a new approach will need to build upon the ongoing harmonisation of existing asylum
systems  in  the  European  Union.  While  Community  legislation  lays  down  a  minimum  level
playing field  for in-country  asylum  processes in  the  EU,  the  new  approach  intends  to  move
beyond  the  realm  of  such  processes  and  address  the  phenomenon  of  mixed  flows  and  the
external dimension of these flows. Embracing the new approach will not render the ongoing
harmonisation obsolete, spontaneous arrivals will continue to occur in the future and should
remain subject  to common standards.  But the new approach  would  reinforce the  credibility,
integrity and efficiency of the standards underpinning the systems for spontaneous arrivals, by
offering a number of well-defined alternatives.

On 26 March 2003, the European Commission presented its Communication on the common
asylum policy and the Agenda for protection. As that Communication also covers, to a certain
extent, the issues addressed in the present Communication, both Communications need to be
read in conjunction with each other.

I. THE RELEVANT GLOBAL AND EU LEGAL- AND POLICY FRAMEWORK

At  a  global  level  the  1951  Geneva  Refugee  Convention  and  the  1967  New  York  Protocol
constitute  the  fundamental  legal  framework.  As  far  as  the  global  policy  framework  is
concerned  references  need  to  be  made  to  the  so-called  “Agenda  for  Protection”  and  the
“Convention Plus” initiatives of UNHCR. Both mechanisms aim at adapting and reinforcing
the international protection regime. The international community has established the Agenda
for  Protection  after  two  years  of  worldwide  consultations.  It  aims  to  offer  a  response  to
today’s  challenges  in  the  governance  of  the  refugee  problem  around  the  world  faced  with
difficulties  of  applying  international  protection  rules  in  a  situation  where  there  are  mixed
migratory flows and ongoing persecutions, risks and dangers forcing millions of people to go

3

into  exile  where  they  need  protection.  Building  on  the  Agenda,  the  objective  of  the
Convention Plus is to improve the operation of the Geneva Convention, boost solidarity and
extend  the  management  of  asylum-related  migratory  flows  by  means  of  supplementary
instruments or policies. It acknowledges that the asylum and international protection system
can come under serious threat if it is used for other purposes or repeatedly misused, notably
by networks of smugglers in human beings.

As far as the relevant EU legal framework is concerned, article 63 of the TEC provides for the
legal basis for the EU to take legislative measures in the field of asylum (and immigration).
The  Tampere  European  Council  Conclusions  of  October  1999  established  a  clear  policy
framework  as  far  as  policies  on  immigration  and  asylum  are  concerned,  by  calling  for  the
development  of  a  common  EU  policy  to  include  the  following  elements:  Partnership  with
countries  of  origin;  A  Common  European  Asylum  System;  Fair  treatment  of  third  country
nationals; Management of migration flows.

More specifically, as far as the Common European Asylum System is concerned, the Tampere
European Council reaffirmed the importance that the Union and Member States attach to the
absolute respect of the right to seek asylum, and agreed to work towards establishing such a
System  through  a  two  step  approach.  The  first  phase  of  the  Common  European  Asylum
System  is  to  be  constituted  by  four  EU  legislative  “building  blocks”,  relating  to  the
determination  of  the  State  responsible  for  the  examination  of  an  asylum  application,  and
setting  minimum  standards  on  asylum  procedures,  conditions  for  the  reception  of  asylum
seekers, and the qualification and content of refugee- and subsidiary protection status. In the
second phase of the EU asylum policy harmonisation process, it was decided at Tampere that
Community rules should lead to a common asylum procedure and a uniform status for those
who are granted asylum, valid throughout the Union.

In discussing possible new approaches towards  asylum systems, it is important to recall that
the  European  Council  at  Tampere  rightly  stated  that  asylum  and  immigration  issues  are
distinct but at the same time closely related issues. In particular, measures combating illegal
immigration should comply with principles  and obligations derived from refugee- and other
human rights law. Equally, any measure taken to improve management of the asylum regime
should  not  be  to  the  detriment  of  the  management  of  migration  flows.  The  validity  of  this
balanced  and  interlinked  approach  towards  asylum  and  immigration  issues  was  endorsed  at
both the Laeken- and Seville European Councils.

Furthermore,  the  Commission’s  Communication  on  asylum  policy  of  November  20001
identified  the  need  to  explore  measures  which  could  contribute  to  providing  legal  and  safe
access to protection in the EU to those in need of it, whilst simultaneously deterring human
smugglers and traffickers.  In this Communication the Commission announced the launching
of two  studies  further  researching  methods  to  increase  orderly  arrival  of  persons  in  need  of
international  protection  in  the  EU,  namely  by  setting  up  Protected  Entry  Procedures  and
Resettlement Schemes.  In the present  Communication the Commission  will propose  how  to
make the best possible use of the results of these two studies.

Tampere  also  underlined  the  need  for  a  comprehensive  approach  to  migration  and  asylum,
addressing political, human rights and development issues in countries and regions of origin

1

Communication from the Commission to the Council and the European Parliament Towards a common
asylum  procedure  and  a  uniform  status,  valid  throughout  the  Union,  for  persons  granted  asylum
(COM/2000/755 final)

4

                                                
and  transit.  It  also  called  for  a  greater  coherence  between  the  Union’s  internal  and  external
policies, and stressed the need for more efficient management of migration flows at all their
stages, in which the partnership with countries of origin and transit would be a key element
for the success of such a policy. A key EU instrument relevant in this regard is constituted by
the  Commission’s  Communication  on  integrating  migration  issues  in  the  European  Union’s
relations  with  third  countries2.  In  its  Communication,  the  Commission  recognises    that
migration and asylum issues should be further integrated in the overall framework of the EU
co-operation with the third countries.  This should be done along the following lines: a global
and  balanced  approach  aimed  at  addressing  the  root  causes  of  migratory  flows;  partnership
with  the  third  countries,  flowing  from  the  analysis  of  mutual  interests;  and  specific  and
concrete  initiatives  assisting  these  third  countries,  aimed  at  improving  their  capacity  to
manage  migratory  flows.  Furthermore,  the  Communication  stressed  the  burden  of  receiving
refugees  borne  by  host  countries  in  the  developing  world,  particularly  in  the  event  of
protracted  situations.  Alleviating  this  burden  is  the  main  objective  of  the  ‘aid  to  uprooted
people’  budget  line.  This  dimension  should  also  be  reinforced  in  the  management  of  other
external financial instruments.

II. ANALYSIS OF THE UK PAPER

The Paper presented by the United Kingdom to the Spring European Council, entitled: “New
international  approaches  to  asylum  processing  and  protection”,  consists  of  two  parts,  an
analytical part and a part in which it develops two concrete new approaches to better manage
the  international  protection  regime.  In  its  first  part,  the  analysis,  the  Paper  identified  four
factors  which  all  substantially  undermine  the  credibility,  integrity,  efficiency  of  and  public
support for the asylum system, not only in the EU, but also globally.

– 

– 

– 

– 

1.(Financial) support for refugees is badly distributed

2.Current asylum system requires those fleeing persecution to enter the EU illegally,
using  smugglers  whereas  the  majority  of  refugees,  including  probably  the  most
vulnerable one, stay in poorly resourced refugee camps in third countries

3.Majority of asylum seekers in EU do not meet the criteria for refugee or subsidiary
protection status

4.Those found not to be in need of international protection are not returned to their
country of origin

In part two of the UK Paper, two new approaches are presented. The Paper firstly proposes to
set up regional protection areas in regions of origin aiming to provide accessible protection,
with greater support from the global community in finding durable solutions. Asylum seekers
from certain  countries  could  be  returned  to  their  home  regions  where  “effective  protection”
could  be  offered  to  them,  and  where  they  would  be  processed  with  a  view  to  managed
resettlement  in  their  home  regions  or,  for  some,  access  to  resettlement  schemes  in  Europe.
Significantly  greater  processing  of  asylum  applications  in  regions,  attached  to  resettlement
programmes,  would  need  to  be  developed  according  to  the  Paper,  in  a  way  which  avoided
creating  a  ‘pull  factor’  or  attracting  people  to  camps  as  an  easy  way  to  get  to  Europe,  and

2

Communication  from  the  Commission  to  the  Council  and  the  European  parliament  integrating
migration 
(Brussels,
issues 
3.12.2002COM(2002) 703 final)

the  European  Union’s 

relations  with 

countries 

third 

in 

5

                                                
which avoided agencies being inundated with applications. Better regional protection should
allow  more  equitable  management  of  flows  of  irregular  migrants  who  want  to  come  to
Europe.  It  might  also  be  possible,  in  this  concept,  to  return  to  the  so-called  “regional
protection areas” failed asylum seekers who have reached Europe but have been found not to
have a well-founded claim to refugee status, but who cannot be immediately returned to their
country of origin.  The  aim  would  be  to  provide  temporary  support  until  conditions  allowed
for voluntary returns.

In  addition  to  better  protection  in  regions  of  origin,  the  UK  Paper  suggests  that  it  is  worth
considering  medium  term  action  to  deter  those  who  enter  the  EU  illegally  and  make
unfounded  asylum  applications.  One  possibility,  the  Paper  states,  might  be  to  establish
protected zones in third countries, to which those arriving in EU Member States, and claiming
asylum could be transferred to have their claims processed. These ‘transit processing centres’
might be on transit routes into the EU. Those given refugee status could then be resettled in
participating  Member  States.  Others  would  be  returned  to  their  country  of  origin.  This
approach  could  act,  in  the  views  of  the  UK,  as  a  deterrent  to  abuse  of  the  asylum  system,
whilst preserving the right to protection for those who are genuinely entitled to it.

The above proposals have been discussed in depth over the last few months, in various fora
involving  Member  States,  Acceding  States  and  representatives  of  relevant  international  and
non-governmental  organisations.  These  discussions  highlighted  a  substantial  number  of
pertinent legal, financial and practical questions. The most basic question flowing from these
discussions is whether the proposed new procedures are complementary to or substituting the
current asylum system. In regard to the idea of Transit Processing Centres the question  was
raised where such centres would be located, within or outside the EU. First and foremost, it
was  stressed  that  an  examination  is  required  into  whether  such  centres,  or  to  that  effect
Regional Protection Areas or Zones, are compatible with EU legislation, national legislation,
the  legislation  of  the  envisaged  countries  hosting  such  centres  or  zones,  and  the  European
Convention on Human Rights. Furthermore, it needs to be clarified by which procedural rules
(EU or national legislation) such centres or zones would be governed.

Two other key legal questions surfaced during these discussions. First, in how far would it be
possible, according to the 1951 Refugee Convention, EU legislation or national legislation, to
transfer  persons  to  the  envisaged  Regional  Protection  Zones  and/or  to  Transit  Processing
Centres, who have  not transited through or otherwise  stayed  in  such  zones/countries.  Could
they  be  kept  as  such  outside  the  scope  of  the  jurisdiction  of  the  destination  countries?  In
relation to the suggested Regional Protection Zones the key legal question seems to be what
the  exact  definition  of  “effective  protection”  is.  However,  there  seems  to  be  generally
agreement amongst the Member States that protection can be said to be “effective” when, as a
minimum,  the  following  conditions  are  met:  physical  security,  a  guarantee  against
refoulement,  access  to  UNHCR  asylum  procedures  or  national  procedures  with  sufficient
safeguards,  where  this  is  required  to  access  effective  protection  or  durable  solutions,  and
social-economic  well  being,  including,  as  a  minimum,  access  to  primary  healthcare  and
primary education, as well as access to the labour market, or access to means of subsistence
sufficient  to  maintain  an  adequate  standard  of  living.  In  certain  regional  contexts,  it  was
stressed that EU Member States may need to accept higher standards.

As  has  become  clear  from  the  discussions,  whilst  there  is  seemingly  agreement  on  the
analysis  of  the  deficiencies  of  the  current  asylum  systems,  there  are  still  many  questions
outstanding on how best to achieve a better management of these systems. The various legal,
financial  and  practical  questions  surrounding  the  proposed  reshaping  of  asylum  procedures,

6

proposed by the UK, in particular in relation to the notion of transit processing centres, need
to be researched and answered before taking any further position.

III

UNHCR’S VIEWS

UNHCR is mandated to achieve better protection and solutions for all persons of its concern
and committed to co-operating with efforts designed to address migratory strains on asylum
systems.  The  Agenda  for  Protection,  deriving  from  the  Global  Consultations  process,  has
spurred new thinking to tackle these problems, including through the development of special
agreements in the context of the High Commissioner’s Convention Plus initiative. UNHCR is
therefore  in  the  process  of  exploring  measures  to  improve  protection  and  solutions
arrangements in regions of origin, while proposing an EU-based approach to deal with certain
caseloads  of  essentially  manifestly  unfounded  applications  lodged  primarily  by  “economic
migrants”  resorting  to  the  asylum  channel.  These  proposals  should  be  seen  to  complement
existing  national  asylum  systems.  UNHCR  is  further  prepared  to  examine  with  States  how
national asylum  systems,  and in particular their procedural  aspects,  could  be  rendered  more
efficient.

According to UNHCR, State responsibility is a key concept, which must be maintained at all
stages, but can often be better fulfilled through international co-operation and the sharing of
commitments.  Together  with  improving  the  working  of  their  national  asylum  systems,  EU
Member States also have the challenge of strengthening the  capacity of  asylum  countries at
points where refugees first seek international protection. Amelioration of asylum conditions in
countries hosting major refugee populations and more accessible solutions are prerequisites if
the pressures driving onward movement, the so-called “secondary flows”, are to be reduced.
These are shared responsibilities in keeping with the principle of international solidarity and
burden sharing.

3.1

Protection  and  solutions  in  regions  of  origin  as  part  of  the  Convention  Plus
initiative:

A genuine and concerted effort is required, in partnership with all States and international and
non-governmental  organisations  concerned,  to  improve  the  quality  and  effectiveness  of
protection available within the countries in regions close to the source of refugee movements,
as well as to promote durable solutions. Convention Plus can serve as an important enabling
mechanism  to  develop  comprehensive  approaches  through  multilateral  special  agreements.
The following would be elements of such an initiative:

Strengthened  protection  capacity  in  host  countries:  Effective  protection  must  be
assured.  Agreement  on  what  constitutes  effective  protection,  identification  of
protection inadequacies, a willingness of the host country to address them, as well as
substantial financial and material investment to enable host countries, UNHCR and
other  relevant  actors  to  implement  agreed  objectives,  are  therefore  required.  As
foreseen in the Agenda for Protection, UNHCR is working with a number of States
to  boost  their  protection  capacities,  focusing  especially  on  countries  from  which
significant  secondary  movements  are  taking  place.  In  UNHCR’s  experience,
improved safety and availability and access to means for self-reliance is particularly
relevant  to  avert  secondary  movements,  and  is  an  important  precursor  to  a  durable
solution.  The  High  Commissioner’s  proposal  on  “Development  Assistance  for
Refugees”  (DAR)  advocates  additional  development  assistance  for:  improved
burden-sharing  for  countries  hosting  large  numbers  of  refugees;  promoting  better

7

quality of life and self-reliance for refugees pending different durable solutions; and
a better quality of life for host communities. It is based on broad based partnerships
between governments, humanitarian and multi- and bilateral development agencies. .

Comprehensive durable solutions comprising the following elements:

– 

– 

Active  promotion  of  voluntary  repatriation  and  sustainable
reintegration.  In  post-conflict  situations,  the  High  Commissioner  has
proposed an integrated approach, the “4 Rs” (Repatriation, Reintegration,
Rehabilitation  and  Reconstruction)  which  aims  to  bring  together
humanitarian  and  development  actors  in  order  to  facilitate  sustainable
reintegration  and  bridge  the  transition  period  between  emergency  relief
and long-term development.

“Development  through  Local  Integration”  (DLI)  as  a  strategy  in
circumstances  where  the  local  integration  of  refugees  in  countries  of
asylum is a viable option.

–  Multilateral commitments to expand resettlement as a protection tool, a
durable  solution  as  well  as  an  instrument  of  burden-sharing  with
countries of first asylum.

– 

Processing in countries of first asylum if necessary to access effective
protection  or  durable  solutions,  such  as:  i)  in  the  context  of  a
comprehensive  framework  of  durable  solutions,  or  ii)  where  access  to
effective  protection  or  a  durable  solution  requires  formal  individual
recognition  of  status.  The  entire  caseload  present  in  the  country  of  first
asylum should have equal access to such arrangements.

– 

Facilitated  return  to  and  readmission  by  countries  of  asylum  in  regions  of
origin  where  effective  protection  is  agreed  and  continues  to  be  available,
possibly as part of an integrated approach, consisting of:

– 

– 

An  admissibility  procedure:  to  determine  whether  responsibility  for
providing  protection  lies  in  the  country  of  destination  or  the  country  of
first asylum, based on factors such as previous stay in a country offering
effective  protection  and  continued  enjoyment  of  such  protection  upon
return, or as part of a comprehensive durable solutions strategy.

Specially  tailored  readmission  agreements  should  ensure  prompt
transfer  under  acceptable  conditions,  and  would  benefit  from  assistance
schemes  and  other  supportive  incentives,  which  could  reinforce  the
aforementioned efforts.

3.2

An EU-based mechanism as a step towards a common asylum system:

To target caseloads of asylum seekers that are composed  of primarily economic migrants and
to reinforce the return of persons not in need of international protection, UNHCR proposes a
special EU-based mechanism to be piloted in  respect  of  designated  countries  of  origin.  The
mechanism could be an important step towards a common asylum system and would rely on
an  EC  Regulation  or  Directive.  Pre-negotiated  readmission  agreements  to  effect  the  swift
return of rejected cases would be, according to UNHCR, a prerequisite. They should be easier
to negotiate as they could be limited to nationals, and would  benefit  from the joint political

8

weight of the EU and its Member States, and UNHCR facilitation. The EU-based mechanism
would, in UNHCR views, also include the following elements:

– 

– 

– 

– 

– 

– 

Closed  reception  facilities  in  which  asylum  seekers  would  be  required  to
reside  for  the  duration  of  the  procedure  (not  to  exceed  one  month),  provided
that  the  special  needs  of  vulnerable  persons,  including  children,  are  met.
Exceptions  could  be  made  in  cases  where  there  is  no  fear  of  absconding  and
irregular movement. The centres could be located within one or possibly more
Member  States  close  to  the  external  borders  of  the  EU,  probably  of  the
enlarged EU  of  2004.  They  would  provide facilities in line with  international
standards  and  the  EU  Directive  on  Minimum  Standards  for  the  Reception  of
Asylum Seekers in Member States, as well as interpretation services and legal
counselling for all asylum-seekers.

Immediate transfer from EU Member States to the joint facilities  of asylum
seekers  of  the  designated  nationality,  with  the  exception  of  persons  who  are
in  closed  reception  centres,  and
medically  unfit 
unaccompanied or separated children.

travel  or  stay 

to 

Rapid  determination  of  claims  on  an  individual  basis  by  a  consortium  of
national  asylum  officers  and  second  instance  decision-makers,  who  would
determine international  protection  needs, in  line  with  the  future  EU  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, in a single –one stop shop- procedure . Appeals could,
according  to  UNHCR,  be  limited  to  simplified  reviews.  The  entire  process
should be completed within one month, unless a particular case reveals special
complexities,  in  which  case  the  claim  should  be  transferred  to  a  regular
national asylum procedure. UNHCR would monitor the determination process,
provide advice, and could play a role in the simplified review process.

Rapid transfer to asylum state: Persons found to be in need of international
protection would be distributed fairly amongst Member States, according to a
pre-determined  key  that  would  take  into  account  effective  links,  including
family, educational, or cultural ties.

Rapid return of persons found not to be in need of international protection.

The  process  would  be  a  partnership  effort  involving  States  and  relevant
international organisations.  It would,  according  to  UNHCR,  require  joint  EU
funding and operation of the centres and for the transfer to the asylum state
or return to country of origin, as applicable, possibly from a special EU budget,
and the sharing of resources and expertise.

Whilst  it  is  important  to  further  investigate  the  exact  legal  modalities  and  the  practical  and
financial consequences of implementing the proposals made by UNHCR, the Commission is
of  the  opinion  that  in  particular  the  EU-based  mechanism  as  suggested  by  UNHCR  is
worthwhile  giving  further  consideration.  The  Commission  feels  that  such  a  model  could
usefully contribute to restoring the credibility and integrity of asylum system, as it is expected
to assist in discouraging economic migrants from using such systems to gain entry to the EU.

9

IV. VIEWS NON-GOVERNMENTAL ORGANISATIONS

Several non-governmental organisations, active in the area of refugee policy, have contributed
to the debate on the shortcomings of the current protection regime. The general gist of these
contributions is that whilst welcoming, in principle, initiatives in dealing efficiently with these
shortcomings,  they  express  the  fear  that  any  new  approach  may  shift  rather  than  share  the
burden  with  host,  third,  countries.  Such  a  shift  would,  according  to  those  organisations,  in
particular  be  inappropriate,  as  the  EU  should  acknowledge  that  many  countries,  especially
those  close  to  regions  of  origin  of  refugee  populations,  are  already  now  hosting  far  greater
numbers  of  refugees  and  asylum  seekers  than  are  EU  Member  States.  To  transfer  domestic
refugee processing to those regions would, in their views, not be in accord with the concept of
international responsibility sharing and principles of international refugee law.

Two  organisations  in  particular  have  expressed  their  opinion  and  issued  statements  in  this
regard.  Amnesty  International  stated  in  a  commentary  on  the  UK  proposals3  that  such
proposals  may  effectively  result  in  denying  access  to  the  EU  territory  and  shifting  asylum
seekers to processing zones where responsibility, enforceability and accountability for refugee
protection  would,  in  Amnesty’s  views,  be  diminished,  weak  and  unclear.  Furthermore
Amnesty  International  is  concerned  that  the  UK  proposal  will  threaten  the  principle  of
international  solidarity  on  which  international  protection  and  solutions  for  refugees  depend,
by creating  two classes  of  asylum  states:  the  rich  and  powerful  states  that  can  select  whom
they will accept as refugees and the rest who are compelled to host large numbers, including
people returned from the rich countries.

The European Council on Refugees and Exiles, (ECRE) issued , in collaboration with the US
Committee  for  Refugees,  a  report4,  relevant  to  the  issues  discussed  in  this  framework.  This
report is based upon field research in a number of countries hosting large refugee populations,
such  as  Jordan,  Syria,  Turkey  and  Kenya.  It  examines  the  feasibility  of  complementing  the
processing of asylum applications in European and North American countries of asylum with
processing in regions of origin  as a means  to  facilitating  the  orderly  and legal  admission of
refugees to Europe and North America. The report notes that those countries currently do not
have  the  legal  and  social-economic  infrastructure  to  ensure  the  safety  of  large  numbers  of
asylum  seekers,  and  that  the  insecurity  of  their  legal  status  places  them  in  dangerous
situations.  The  extremely  limited  role  of  NGOs  in  these  countries  is,  in  the  authors’  views,
furthermore an important constraint in offering a secure asylum environment for refugees in
those  countries.  None  of  the  countries,  the  report  notes,  is  currently  in  favour  of  local
integration  of  refugees.  The  report  concludes  that  the  most  effective  way  to  address  the
asylum  and  access  challenge  is  through  a  comprehensive  engagement  to  resolve  protracted
refugee situations.

In  light  of  the  variety  of  views  expressed  and  approaches  reported  above,  the  Commission
believes that it is vital that the EU continues to engage itself in a constructive, transparent and
open  dialogue  with  the  various  stakeholders,  involved  in  the  debate  on  this  critical  issue  of
new  approaches  to  the  management  of  asylum  systems,  including  representatives  of  civil
society.

3

4

“Strengthening Fortress Europe in Times of War”-Amnesty International commentary on UK proposals
for  external  processing  and  responsibility  sharing  arrangements  with  third  countries-  London,  27
March 2003
“Responding  to  the  asylum  and  access  challenge,  an  agenda  for  comprehensive  engagement  in
protracted refugee situations”- ECRE and US Committee for Refugees- April 2003

10

                                                
V. BASIC PREMISES OF ANY NEW APPROACH TO THE INTERNATIONAL PROTECTION REGIME

In  the  Communication  on  the  common  asylum  policy  and  the  Agenda  for  protection5,  the
Commission recognises that there is a crisis in the asylum system, more and more striking in
certain  Member  States,  and  a  subsequent  growing  malaise  in  public  opinion.  It  notes  that
abuse of asylum procedures is on the rise, as are mixed migratory flows, often maintained by
smuggling practices involving both people with a legitimate need for international protection
and migrants using asylum procedures to gain access to the Member States to improve their
living  conditions.  This  phenomenon,  as  the  Communication  states,  is  a  real  threat  to  the
institution of asylum and more generally for Europe’s humanitarian tradition, and demands a
structural response. This response is in particular necessary at a time when the question could
be legitimately put whether the Member States could not better deploy the major human and
financial  resources  which,  partly  supported  by  the  European  Refugee  Fund,  they  devote  to
receiving  displaced  persons  in  the  context  of  often  lengthy  procedures  that  regularly
culminate in negative decisions requiring repatriation after a long wait. The Communication
therefore concludes that there is a manifest need to explore new avenues to complement the
stage-by-stage approach adopted at Tampere.

Such new approaches should be underpinned by the following 10 basic premises:

-

– 

1. The need to fully respect international legal obligations of Member States,
in particular the full and inclusive application of the 1951 Refugee Convention,
the non-refoulement principle, and the European Convention on Human Rights
and Fundamental Freedoms.

2.  The  most  effective  way  of  addressing  the  refugee  issue  is  by  reducing  the
need for refugee movements. This means to address the root causes of forced
migration,  in  conformity  with  the  Council  Conclusions  on  Migration  and
Development of 19 May 20036.

5

6 

Communication  on  the  common  asylum  policy  and  the  Agenda  for  protection  (Second  Commission
report on the implementation of Communication COM(2000)755 final of 22 November 2000) Brussels,
26.03.2003 COM(2003)152 final
“The  long-term  objective  of  the  Community  should  be  to  continue  to  address  the  root  causes  of
migration, in partnership with third countries, in due recognition of the effect of long-term development
programmes on migratory flows, in particular in poverty eradication, pro-poor economic growth, job
creation,  promotion  of  good  governance,  support  for  human  rights,  supporting  population  policy
measures,  institution  and  capacity  building  and  conflict  prevention.  Development  resources  should
continue to focus on the central objective of poverty reduction and the achievement of the Millennium
Development  Goals,  based  on  national  poverty  reduction  strategies,  and,  where  available,  Poverty
Reduction Strategy Papers”  (Point 2 of Council Conclusions on migration and development of 19 May
2003).

In  the  same  meeting  the  Council  also  concluded  under  point  3    that  ‘the  integration  of  migration
aspects in the external action of the  Community  should  respect  the  overall  coherence  of  EU  external
policies and actions. The EU's dialogue and actions with third countries in the field of migration should
be  part  of  a  comprehensive  approach.  This  approach  should  be  differentiated,  taking  account  of  the
situation in various regions and in each individual partner country, and should be consistent with the
general  objectives  and  the  six  priorities  laid  down  in  the  November  2000  Joint  Council/Commission
Statement on the Community Development Policy’.

11

                                                
– 

– 

– 

– 

– 

– 

– 

– 

3. Access to legal immigration channels, in particular the facilitation of legal
entry of third country nationals into the EU for employment (skilled, unskilled
and  seasonal  labour)  and/or  family  reunification  purposes,  will  assist  in
discouraging  migrants  to  use  the  asylum  channel  for  non-protection  related
reasons.

respecting 

international  humanitarian  obligations, 

4.  Whilst 
illegal
immigration should continue to be combated, as called for in Seville. This
aspect  will  gain  significance  when  the  new  asylum  policies  will  become
effective, since people remaining committed to enter the EU, in spite of these
policies, to enter the EU, will more frequently resort to using illegal tracks.

5.Any  new  approach  should  be  built  upon  a  genuine  burden-sharing  system
both  within  the  EU  and  with  host  third  countries,  rather  than  shifting  the
burden  to  them.  Any  new  system  should  therefore  be  based  upon  full
partnership with and between countries of origin, transit, first asylum and
destination. The necessary involvement of host third, countries implies a long
lasting process of confidence building and planning.

6. Any new approach to improve the management of asylum in the context of
an  enlarged  Europe  should  build  upon  the  policy  objectives  identified  in  the
March  2003  Asylum  Communication:  improvement  of  the  quality  of
decisions (“frontloading”) in the European Union, consolidation of protection
capacities  in the  region of origin, and treatment of protection requests  as
close as possible to needs, which presupposes regulating access to the Union
by establishing protected entry schemes and resettlement programmes.

7. Any new approach should be complementary rather than substituting the
Common  European  Asylum  System,  called  for  at  Tampere.  Such  a  new
dimension should build upon the first phase of that System, be integrated in its
second phase and pave the way for a  “Tampere-II” political agenda on asylum
policies, based on the new Treaty.

8.  The  Seville  European  Council  sets  clear  deadlines  in  agreeing  on  the
different “building blocks” of the first phase of the Common European Asylum
System. Seville  required  agreement  to  be  reached  on  the  Refugee  Definition-
and  Subsidiary  Protection  Directive  by  June  and  on  the  Asylum  Procedures
Directive by the end of this year. As the EU cannot afford these deadlines to be
missed,  the  discussions  on  new  approaches  should  not  result  in  delaying
the  present  negotiations  on  these  Directives.  This  does  not  preclude,
however,  the  possibility  of  additional  legislative  instruments,  in  particular  in
relation  to  asylum  procedures,  if  the  need  for  such  instruments  would  derive
from the present discussions.

9. Any new EU or Member States’ initiative to refine the asylum system should
be  in  line  with  and  enforcing  the  global,  UNHCR  steered,  Agenda  for
Protection and Convention Plus initiatives.

10.  Whatever  the  outcome  of  the  current  discussions  on  a  new  approach  to
asylum  systems  may  be,  possible  financial  consequences  for  the  Community
budget,    need  to  respect  the  current  financial  perspective,  as  long  as  this
remains  applicable.  Development  resources  should  continue  to  focus  on  the

12

central objective of poverty reduction and the achievement of the Millennium
Development Goals, based on national poverty reduction strategies, and, where
available, Poverty Reduction Strategy Papers.

VI.  POLICY-  OBJECTIVES  AND  APPROACHES  FOR  MORE  ACCESSIBLE,  EQUITABLE  AND

MANAGED ASYLUM SYSTEMS

In the light of the analysis of the deficiencies of current asylum systems, and in full respect of
the above 10 basic premises, the Commission feels it is appropriate and necessary to develop
a  new  approach  complementary  to  those  systems,  to  be  pursued  within  a  framework  of
genuine  burden-  and  responsibility  sharing.  The  overall  aim  of  such  a  new  approach  to
asylum  systems  is,  to  better  manage  asylum-related  flows  in  their  European  territorial
dimension  and  in  regions  of  origin,  resulting  in  more  accessible,  equitable  and  managed
asylum  systems.  These  asylum  systems  should  enable  persons  in  need  of  international
protection  to  access  such  protection  as  soon  as  possible  and  as  closely  as  possible  to  their
needs,  and  therewith  reducing  felt  needs  and  pressures  to  seek  international  protection
elsewhere.

Such a new approach is based on three specific but complementary policy objectives, namely:
1) the orderly and managed arrival of persons in need of international protection in the EU
from the region of origin; 2) burden- and responsibility sharing within the EU as well as
with regions of origin enabling them to provide effective protection as soon as possible and
as closely as possible to the needs of persons in need of  international protection,  and  3)  the
development  of  an  integrated  approach  to  efficient  and  enforceable  asylum  decision-
making  and  return  procedures.  Each  three  are  equally  important,  have  cross-links  and
strategically reinforce each other, and in their totality aim to address the noted deficiencies, in
current asylum systems, and to restore and enhance the public support for the asylum system.

In addition to these three objectives another important element in achieving the overall aim is
that economic migrants should as much as possible be discouraged from abusing the asylum
system for  non-protection  related  reasons.  This should    lead  to  a  decrease  in  the  number  of
asylum  seekers,  hence  to  a  reduction  in  the  costs  of  the  domestic  system,  and  would  thus
liberate funds  to be  spent on assisting the regions of origin in providing effective protection
as soon as possible to persons in need of international protection. An asylum system used by
those  with  credible  protection  needs  will  furthermore  increase  public  support  for  the
institution  of  asylum  as  such.  It  is  therefore  vital  that  there  are  legal  immigration  channels,
and  that  other  attempts  are  being  made  to  address  the  mixed  flows  issue,  even  if  this  could
mean that some people, remaining committed to enter the EU, will be more frequently using
illegal channels, when the asylum route is no longer available to them.

6.1

The orderly and managed arrival of persons in need of international protection
in the EU from the region of origin

6.1.1

Policy Objective to be achieved

Offering  channels  to  access  protection  in  the  EU,  already  in  the  region  of  origin,  serves  a
four-fold purpose:

– 

it  facilitates  orderly  arrivals  in  the  EU,  which  is  very  much  preferable
from  a  financial,  integration  and  national  security  perspective.  Orderly
arrival  of  refugees  will  also  boost  the  public  support  for  the  asylum

13

– 

– 

– 

system,  as  the  orderly  arrival  of  Kosovar  refugees  in  the  EU  Member
States during the Kosovo conflict very clearly demonstrated;

it  provides  persons  in  need  of  international  protection  with  means  to
access  such  protection  in  a  safe  and  legal  manner,  and  it  provides  a
method  of  offering  (procedures  for  accessing)  protection  as  closely  as
possible to the needs, and as soon as possible being the overall aim of the
new approach to the international protection regime;

provided that it builds on protection strategies in the regions, it alleviates
some of the pressures on these regions, and  therefore assists  in  meeting
the second objective of burden-sharing with these regions;

these channels could also be used to properly inform candidate migrants
to  the  EU  on  the  possibilities  and  impossibilities  of  migrating  for
economic  purposes  to  the  EU.  These  channels  may  therefore  help  in
deterring economic migrants from using the asylum route  as the  way to
get  entry  to  the  EU,  knowing  their  chances  of  receiving  legal  status
would be minimal or even non-existent

6.1.2

Policy approaches needed to pursue the orderly and managed arrival of persons
in need of international protection in the EU from the region of origin:

6.1.2.1. Orderly  arrival  can  be  ensured  by  the  EU  Member  States  participating  in  the
UNHCR steered Comprehensive Plan of Action, allowing for a number of refugees
to be resettled in the EU as part of the solution proposed by the UNHCR for dealing
with a specific caseload in a protracted refugee situation.

6.1.2.2. Orderly arrival can also be assured by an EU-wide resettlement scheme. A study on
the  feasibility  of  setting  up  resettlement  schemes  in  EU  Member  States  or  at  EU
Level, against the background of the Common European Asylum system and the goal
of a Common Asylum Procedure, has been commissioned and will be released later
this year. The notion of resettlement is understood to consist of transferring refugees
from  a  first  host  country  to  a  second,  generally  a  developed  country,  where  they
enjoy  guarantees  of  protection,  including  legal  residence,  and  prospects  for
integration  and  autonomy.  The  resettlement  process  is  approached  in  an  integral
manner, from policy formulation through the process of selection to transfer, arrival,
settling  and  longer-term  perspectives.  In  such  a  framework,  several  levels  of  EU
harmonisation can be identified, as well as levels of discretion left to Member States
in that regard.

The  ideal  model  for  the  EU  from  the  perspective  of  the  global  refugee  protection
regime, the increased prominence of resettlement as both a tool of protection and a
durable  solution,  and  to  promote  solidarity  between  the  EU  Member  States  and
countries  of  first  asylum,  as  well  as  among  EU  Member  States,  and  between  them
and  the  traditional  resettlement  countries  beyond,  would  be  one  in  which  all  or
almost all of the chronological steps in the resettlement process are set at EU level.
However,  the necessary political will to convert immediately to those models may
not yet exist  across the fifteen Member States (or the enlarged Union).

The Commission therefore proposes to further explore the viability of providing for
an EU legislative framework which could establish the goals, the selection criteria -

14

including the definition of those to be included in consideration for resettlement- and
the  total  annual  target  for  resettlement.  However,  it  would  be  left,  in  such  an
approach,  to  Member  States  to  establish  their  own  quota  within  that  target.
Furthermore,  Member  States  would  also  establish  their  own  selection  procedures,
and be free to organise their own policy and approach to issues related to the arrival
of refugees, including the immigration procedures to be carried out. Finally, in that
model,  Member  States  would  also  develop  their  own  policy  on  the  reception  of
resettling  refugees  and  develop  their  own  approach  to  the  progress  of  a  resettled
refugee from arrival towards longer-term integration.

As one of the stumbling blocks to any new policy initiative lies in budgetary support
for  its  implementation,  the  financial  underpinning  of  such  a  new  policy  is  vital.  It
may be worthwhile considering in this respect the inclusion of a specific strand in
the  new  financial  instrument,  in  succession  to  the  European  Refugee  Fund
(which  will  end  in  2004),  reinforcing  the  collective  and  co-operative  notion
underlying  an  EU  resettlement  scheme.  The  goals  of  such  a  strand  would  be  to
provide an EU level budgetary mechanism to support the resettlement programme, to
allow for burden-sharing, but not shifting, among EU Member States, and to ensure
reasonable  financial  support  to  resettling  refugees  during  their  first  year  in  an  EU
Member State without making additional cost claims on national welfare systems.

6.1.2.3.  Orderly  arrival  in  the  EU  can  also  be  facilitated  by  setting  up  Protected  Entry
Procedures in regions of origin, preferably EU-wide. The notion of Protected Entry
Procedures is understood to allow a non-national to approach the potential host state
outside its territory with a claim for asylum or other form of international protection,
and to be granted an entry permit in case of a positive response to that claim, be it
preliminary  or  final.  A  Commission  study  on  the  feasibility  of  processing  asylum
claims  outside  the  EU  against  the  background  of  the  Common  European  Asylum
System and the goal of a common asylum procedure identified five blueprints which
Member  States  could  consider  when  developing  Protected  Entry  Procedures  in  the
future,  varying  from  the  flexible  use  of  the  Visa  Regime,  to  the  development  of  a
Schengen Asylum Visa.

The Commission proposes to further explore the viability of the Study’s proposal to
set up a  EU Regional Task Force. Whilst the exact legal and institutional nature of
such a Task  Force would need further clarification, the core of this proposal would
be  the  creation  of  a  joint  regional  presence  of  the  EU,  providing  expertise  to  local
authorities where needed, and operating a referral system,  matching  different  needs
with  appropriate  solutions.    It  would  offer  a  multilateral  platform,  which  could
support  varying  material  and  operational  content.  The  EU  regional  presence  would
allow for the establishment of a differentiated referral system, catering for migration
and protection alike. To that effect, it would be staffed with persons well acquainted
with  the  immigration  and  asylum  policies  of  the  EU  and  its  Member  States,  and
could undertake the following functions:

– 

– 

Information dissemination: The EU presence would deliver accurate and
authoritative  information  to  potential  migrants  and  local  authorities  on
the immigration and asylum options on offer in the EU, and the risks of
human smuggling.

Processing: The EU presence could, where needed and requested, assist
local  authorities,  or  UNHCR,  in  carrying  out  refugee  determination.

15

Hence,  eligible  persons  could  be  identified  and  the  search  for  durable
solutions  could  begin,  i.e.  return  of  those  rejected,  local  integration  of
those accepted or resettlement, in particular for the vulnerable cases.

– 

Resettlement  and  Protected  Entry  Procedures:  In  the  framework  of
processing, the EU presence could, in close  co-operation with UNHCR,
identify  the  cases  which  should  be  lifted  out  from  the  region  and
protected within the EU. Such cases could have special protection needs
which cannot be catered for regionally, or posess close ties to a Member
State.    Additional  cases  could  be  taken  over  by  the  EU  within  the
framework of a burden sharing arrangement with countries in the region.
Finally, attention would also have to be paid to the effective protection of
the remaining persons.

– 

Procuring information for asylum determination: The EU presence could
also engage in the procurement of information on countries  of origin to
serve domestic asylum procedures in Member States.

Another  proposal  suggested  in  the  Study,  namely  gradual  harmonisation  through  a
Directive  based  on  best  practices,  is,  according  to  the  Commission,  also  worth
considering.  It  is  based  on  the  introduction  of  a  rudimentary  form  of  Protected
Entry Procedures in all Member States participating in the cooperation under Title
IV TEC. It is assumed that Member States wish to retain a certain degree of control
at  all  stages  of  Protected  Entry  Procedures,  whilst  approximating  their  practices  to
each  other.  It  is  inspired  by  the  logic  of  the  first  phase  in  building  the  Common
European Asylum System, which aims for the dissemination of minimum standards
to be respected by all Member States in their unilateral practices. The adequate form
for bringing about this level of harmonisation would therefore be a Directive.

6.2.

BURDEN-  AND  RESPONSIBILITY  SHARING  WITHIN  THE  EU  AS  WELL  AS  WITH
REGIONS OF ORIGIN

6.2.1

Policy Objective to be achieved

The  regions  of  origin  are  currently  faced  with  great  refugee  flow  pressure  and  problems
resulting from this  pressure.  The EU should  continue to substantially  assist these regions in
alleviating these problems, and contribute to enhancing the protection capacity in the region
of origin, both in qualitative as well as in quantitative terms. Whilst acknowledging that the
EU  itself  forms  a  source  region  for  asylum  seekers  coming  from  Europe  or  the  wider
periphery  of  Europe,  it  is  vital  that  other,  less  developed,  source  regions  are  assisted  in
offering protection to those in need of it as protection in the region is, in principle, the logical
and  preferred  protection  modality:  it  offers  protection  to  persons  in  need  of  international
protection,  as  closely  as  possible  to  their  needs,  and  at  an  earlier  stage,  than  protection
enjoyed  in  the  EU.  Furthermore,  if  substantial  parts  of  the  current  EU  financial  resources
spent  on  the  domestic  asylum  system  could  ultimately  become  available  for  enhancing  the
protection  capacity  in  the  region,  more  people  could  be  offered  effective  protection  than  is
currently the case.

The EU should therefore assist in developing the asylum systems of transit countries in order
to turn these states into first countries of asylum. When effective protection  can be offered in
the  region  this  may  diminish  the  need  for  secondary  movement  of  persons  in  need  of

16

international  protection,  amongst  others  to  the  EU.  Also,  only  then  can  the  EU  actively
implement,  in  close  co-operation  with  UNHCR,  the  notion  of  safe  third  country  and  first
country  of  asylum  vis-a-vis  the  countries  in  the  region.  To  effectively  implement  such
policies, readmission agreements concluded with these countries constitute vital instruments. .
Furthermore,  whilst  not  underestimating  the  difficulty  of  returns  more  generally,  return  of
rejected asylum seekers from within the region of origin to the country of origin may be easier
than  return  from  the  EU  to  country  of  origin.  Finally,  the  envisaged  assistance  to  host
countries should also contribute to their “good governance”, and provide tools to fight against
corruption and smuggling, two key development prerequisites.

Whilst  policy  approaches  defined  below  focus  on  burden-sharing  with  regions  of  origin,  it
needs to be underscored  that a proper discussion on burden- and responsibility sharing should
preferably be done within a horizontal and integral framework. This is even more important
taking into consideration the changed political EU asylum landscape, resulting from the entry
into  force  of  the  Regulation  for  determining  the  state  responsible  for  examining  asylum
claims (Dublin-II), supported by a fully operational Eurodac fingerprinting mechanism, and in
the light of the likely reference to the burden-sharing notion in the  asylum-related  article of
the  new  Treaty.  In  this  context  the  reference  to  a  horizontal  framework  means  that  burden
sharing mechanism should be constructed, not only between the EU and regions of origin, but
also  within the EU  itself.  One  could  rightly  argue  that,  the  European  Union  being  a  unique
model of an emerging “common asylum space”, if burden-sharing and responsibility-sharing
cannot be successfully applied within that space, how could it possibly be expected to be to
others ?

The notion of an integrated approach to burden-sharing in the field of migration and asylum
within the EU means that  in addition to the sharing  of the financial costs deriving from the
management of the EU external borders, one would also need to take a look at how physical
burden-sharing  in  hosting  persons  in  need  of  international  protection  could  be  achieved.
Whilst a burden-sharing of the total asylum caseload in the EU amongst the Member States
does not seem feasible at this particular political juncture, however, as mentioned at the end
of  Chapter  3,  the  EU-based  mechanism  suggested  by  UNHCR,  where  the  need  for
reallocation  amongst  the  EU  Member  States  is  expected  to  be  very  minimal,  is  worthwhile
giving further consideration. Furthermore, such a model may have the advantage that it assists
in deterring economic migrants from using the asylum system to gain entry to the EU. Under
the  third  objective,  it  is  further  explored  how  such  an  EU-based  approach  relates  to  the
Proposal for a Council Directive on asylum procedures, currently under negotiation.

6.2.2

Policy  approaches  needed  to  pursue  burden-and  responsibility  sharing  within
the EU as well as with regions of origin:

6.2.2.1. In order to be able to access protection close to the needs, therefore in the region of
origin,  a  step  by  step  approach  is  needed.  This  implies  long-term  investments,
including  capacity  and  institution  building,  facilitating  the  development  of  the
asylum  system  of  the  countries  in  the  region,  and  effective  protection  capacity  in
regions  of  origin.  This  requires  political  and  financial  commitments,  as  well  as  the
involvement  of  countries  of  origin,  first  asylum  and  destination,  which  will  be
difficult to achieve. Enhanced protection capacity in the region is necessary both
in  terms  of  quantity  and  quality,  if  “effective  protection”  is  to  become  a  true
alternative to protection in the EU. As the standard of protection is currently often far
from meeting the “effective protection” standard,  enhancing the protection capacity
in the region would require substantial financial assistance, as well as infrastructure
aid, and expertise offered by the EU. Enabling third host countries to offer effective

17

protection to persons in need of international protection will be a long process, which
might only provide solutions in the mid-to-long-term.

The need for the EU to support regions of origin in providing protection has recently
been politically endorsed by the Council. In its Conclusions on integrating migration
issues  in  the  European  Union’s  relations  with  third  countries:  migration  and
development, adopted on 19 May 2003, conclusion 11 states that: “Taking account of
both  the  financial  and  institutional  capacities  of  many  developing  countries  and  of
the  fact  that  refugees  can  put  considerable  strain  on  their  social  and  political
structures, the Commission is invited to consider ways to strengthen their reception
capacity  and  to  elaborate  further  on  the  use  of  development  co-operation  in  the
search  of  durable  solutions  for  refugees,  in  voluntary  return  and  reintegration  as
well as local integration, and to develop concrete proposals on how more aid could
be  directed  towards  assisting  refugees  in  the  region,  while  targeting  poverty
reduction in host communities. Added value could ensue from increasing support and
devising long-term interventions that offer sustainable improvements to  refugees as
well as to local communities in countries hosting large populations of refugees”.

However, before undertaking any next steps in this regard, there needs to be a proper
analysis and “grouping” of the various source regions and countries of first  asylum
possibly  concerned  by  the  new  policies.  At  this  juncture,  the  above  call  for  more
financial  assistance  needs  to  be  framed  within  the  current  legal,  political  and
financial  frameworks  (such  as  the  Cotonou  agreement  process)  and  development
programmes applicable to the various countries likely to be considered. However, in
order  to  assess  needs  for  the  enhancement  of  protection  capacity,  proper
quantification and further research are necessary. These may well point to the need
for additional financial resources, to be addressed in the context of the next financial
perspective.

Indeed, a comprehensive set of measures is needed to realise effective protection in
the  region.  Creating  sufficient  protection  capacity  in  developing  countries  will
involve  a  number  of  actions  ranging  from  ensuring  the  national  legal  framework,
developing  institutional  capacities,  as  well  as  infrastructure  and  policies  for
reception,  integration  and  return.  In  this  context  the  Commission  refers  to  the
elements  identified  in  the  March  2003  Asylum  Communication,  in  relation  to  the
instruments  of  the  European  external  protection  policy  and  the  means  of  achieving
more effective co-operation and assistance.

In addition to the political endorsement of this specific policy objective, a legal base
is  needed for the proper implementation of Budget line ‘Co-operation with Third
Countries  in  the  area  of  migration’  (B7-667).  It  is  clear  that  as  a  result  of  its
limited  financial  scope  this  budget  line  can  not  provide  for  all  the  needs  of  host
countries  in  protracted  refugee  situations.  Nevertheless,  this  financial  instrument
could prove very useful for supporting new approaches to the asylum regime, in full
co-operation  with  UNHCR  and  the  host  countries  or  regions  concerned,  through
projects  serving  the  multilateral  interest  of  all  stakeholders  involved..  The
Commission is committed to present its proposal for a Regulation shortly and invites
the Council and Parliament to treat this as a matter of priority.

In order to test the ground for actions  to be implemented under the future legal basis,
specific  preparatory  actions  could  be  launched  under  B7-667  in  2003.  In  the
selection  and  implementation  of  these  actions  the  Commission  will,  in  close  –co-

18

operation  with  UNHCR,  take  due  account  of  the  specific  situation  of  the  third
countries to be involved in regard to, in particular, human rights, the rule of law and
good governance. The purpose of these actions  would be:

a)  an  identification,  in-depth  analysis  and  ‘grouping’  of  the  various  source  regions
and third countries of first asylum, including an assessment of the requirements for
achieving ‘effective protection’ capacity ;

b)  an  analysis  of  the  legal,  financial  and  practical  questions  related  to  Regional
Protection Zones and Transit Processing Centres in third countries (cf. part II of this
Communication);

c)  the  further  exploration  of  the  concept  of  EU  Regional  Task  Forces,  including  a
supplementary feasibility study (cf. point 6.1.2.3. of this Communication); 

d) concrete proposals for future programmes/projects to be implemented with a view
to foster the above goals (cf. point 6.2.2.1 of this Communication).

More  specifically,  projects  could  be  taken  up  in  regions  facing  protracted  refugee
situations, with a view to increasing, effective protection, thereby reducing secondary
movements  to  EU  Member  States.  Projects  could  also  contribute  to  the  creation  of
processing,  reception  and  protection  capabilities,  including  as  regards  persons
returned from the EU.

6.2.2.2.  Within  the  context  of  global  burden-  and  responsibility-sharing,  and  in  order  to
maintain sufficient protection capacity  in the region, EU Member States should act
to ease the pressure on the host countries on a permanent basis by offering durable
solutions.  This  could  in  particular  be  effected  by  participating  in  UNHCR-steered
Comprehensive  Plans  of  Action  for  specific  caseload  in  protracted  refugee
situations.

6.2.2.3. Pressure on host countries could also be eased by setting up EU-wide resettlement
schemes,  as  outlined  above  in  regard  to  the  first  objective,  the  managed  arrival  of
refugees  from  the  region  in  the  EU.  Resettlement,  strategically  used,  can  therefore
serve a multiple purpose. In seeking to use resettlement strategically, the current and
future  EU  resettlement  Member  States  will  need  to  consider  how  broader  linkages
can  be  achieved  through  partnership  with  first  asylum  states.  Countries  of  first
asylum need to be supported so that they become more open to making commitments
on  behalf  of  refugees  beyond  the  provision  of  first  asylum  protection.  This  may
entail  commitments  with  respect  to  the  maintenance  of  effective  protection,  the
provision  of  local  integration  or  the  acceptance  of  returns  from  secondary
movements.  The  involvement  of  an  agreement  for  some  action  by  the  first  asylum
country  in  conjunction  with  resettlement  could  potentially  convert  a  non-strategic
situation into a strategic one. Such agreements would ideally arise from the collective
analysis of the country of first asylum, the UNHCR and resettlement Member States.
The Convention Plus’ “Special agreements” could be used in this respect, so as to
identify and concretely agree on what the different responsibilities are of the various
actors involved,  namely  countries of origin, first  asylum,  destination  countries,  and
UNHCR.

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6.3.

The development of an integrated approach to efficient and enforceable asylum
decision-making and return procedures

6.3.1

Policy Objective to be achieved

In order to promote the credibility and integrity of the asylum system, and at the same time
ensure protection to genuine refugees, EC legislation and other EU measures should provide
for the legal framework enabling Member States:

(a) to quickly and correctly identify the persons genuinely in need of international protection
and grant such protection;

(b)  to  effectively  remove  from  the  territory  of  the  Member  States,  persons  who  have  been
found not to be in need of protection

Without  prejudice  to  the  outcome  of  the  current  negotiations  on  the  first  phase  of
harmonisation in the area of asylum procedures, the European Community must further invest
into its response to two major challenges: the quality of the examination of applications, and
the speed of such examinations . The Commission will intensify its work on “frontloading”, in
particular  through  further  study  of  the  question  of  the  single  (“one  stop-shop”)  asylum
procedure It will be mindful of the results of a study launched by the Commission, and to be
shortly  published  as  “Asylum-  a  single  procedure  in  the  context  of  the  Common  European
Asylum System and the goal of a common asylum procedure”.

Improving  the  quality  of  decisions  by  “frontloading”  will  also  substantially  facilitate  both
objectives  identified  above.  Objective  (a),  as  “frontloading”  will  assist  in  the  quick  and
correct  filtering  of  persons  in  need  of  protection,  as  well  as  objective  (b),  in  the  sense  that
only  those  persons  should  be  removed  who,  after  their  claim  for  asylum  has  been  correctly
examined, were found to be not in need of international protection.

An  effective  EU  Return  Policy  will  increase  public  faith  in  the  need  to  uphold  the  EU
humanitarian tradition of offering asylum to those in need of international protection. A quick
return,  in  safety  and  dignity,  immediately  following  rejection  of  the  application  for  asylum
and  the  appeal,  where  such  appeal  has  no  suspensive  effect,  will  furthermore  greatly  deter
migrants  from  abusing  the  asylum  channels  for  non-protection-related  reasons.  The  main
issue at stake in this regard seems to be that of undocumented rejected asylum seekers whose
identity and nationality cannot be established for the purposes of return. Following their final
rejection, such persons unequivocally pose particular return problems, as the necessary prior
establishment  of  their  identity  and  nationality  requires  their  co-operation  and/or  the  co-
operation  of  the  presumed  country  of  origin.  Refusal  of  such  co-operation  often  leaves
Member States authorities without any possibility to remove the person concerned from their
territories. If this serious problem is not satisfactorily solved, in line with the conclusions of
the June 2002 Seville European Council, the November 2002 Return Action Programme, and
the November 2002 General Affairs Council Conclusions on intensified co-operation on the
management  of  migration  flows  with  third  countries,  any  new  model  proposed  will  most
probably prove to be ineffective in the long run, however efficient it may seem in the short
term.

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6.3.2

Policy  approaches  needed  in  order  to  develop  an  integrated  approach  to
efficient and enforceable asylum decision- making and return procedures

6.3.2.1.  Whilst  respecting  the  Seville  deadline  for  adoption  of  the  Asylum  Procedures
Directive,  that  Directive  could  be  adapted  in  such  a  way  that  it  provides  for  specific
measures  aimed  at  setting  up  a  complementary  mechanism  for  examining  certain
categories  of  applications  lodged  in  or  at  the  border  of  the  EU,  as  defined  in  that
Directive. Such measures  would  consist  of  uniform  rules  for  more  expeditiously  processing
these categories of applications to decide on the entry to and admission to the EU at particular
locations, such as closed processing centres within the EU, at its external borders. This would
imply that agreement  on  the  categories of applications deserving such treatment  is  found  in
the  Council,  following  consultation  with  UNHCR.  It  would  thus  be  a  tool  enhancing  the
flexibility  of  the  Common  European  Asylum  System,  in  its  exceptional  character  similar  to
the Temporary Protection Directive.

6.3.2.2. To the extent that  certain countries of first asylum were  found able to offer effective
protection, as outlined earlier in this Communication, and as further explained in this Chapter
under  the  second  objective,  the  asylum  procedures  in  EU  Member  States  could
furthermore  be  remodelled    to  more  quickly  filter  out  the  applications  of  persons
proceeding from  those countries. For this purpose an EC legislative  instrument could, on
the  basis  of  the  framework  provided  in  the  Asylum  Procedures  Directive,  establish  a)  the
existence  of  effective  protection  for  designated  categories  of  persons;  and  b),  where
appropriate, particular procedural consequences that follow from this conclusion.

6.3.2.3. Closer co-operation between the EU and the countries of origin and first asylum
on return issues should be established. This should be done in line with the conclusions of
the June 2002 Seville European Council, the November 2002 Return Action Programme, and
the November 2002 General Affairs Council Conclusions on intensified co-operation on the
management  of  migration  flows  with  third  countries,  and  form  the  basis  for  making  return
more efficient and effective.

6.3.2.4.  The  existing  approach  towards  the  (developing)  EC  readmission  policy  could  be
revisited  in  the  light  of  possible  new  needs  flowing  from  a  new  approach  to  asylum
systems.  Needs  in  particular  to  be  in  taken  into  account  include  the  need  for  registration
and capturing of biometric identifiers of asylum seekers at the earliest point of time.

6.3.2.5. In addition to the conclusion of readmission agreements, the development of further
EU  return  programmes  could  be  considered,  taking  full  account  of  the  experiences  and
lessons  to  be  learnt  from  the  Return  plan  for  Afghanistan  the  results  of  which  will  be
thoroughly  assessed.  Provided  that  the  conditions  for  “effective  protection”  are  met  future
programmes  could  be  useful  to  help  to  create  economic  perspectives  for  returnees  in  their
countries of origin, on condition that  they  be open to  the  local  population  in  order  to  avoid
“revolving door” effects. The momentum of the Convention Plus’ initiative could be usefully
used in this context as well, by incorporating the return of persons found not to be in need of
international protection into comprehensive special agreements, and thereby underscoring the
state responsibility to accept returns of nationals.

VII. CONCLUSION AND WAY FORWARD

We are at a turning point in the development of the Common European Asylum System, with
its first phase being nearly completed, reaching its critical mass. The time has now come to

21

decide how best to further shape the second phase of this Asylum System, in addition to what
Tampere already decided. The UK paper is therefore a very timely one, also as it links well to
the  global  momentum  created  by  the  Agenda  for  Protection  and  the  “Convention  Plus”
initiatives.  Furthermore,  the  UK  paper  provides  the  right  analysis  of  the  deficiencies  in  the
current international protection regime and asks the appropriate questions, helping to address
the challenges the EU asylum system faces.

However,  care  needs  to  be  taken  to  devise  responses  in  a  process  which  will  have  a  major
impact on various policy areas. New approaches to asylum systems should therefore respect a
number  of  basic  premises,  one  of  them  being  the  complementarity  with  the  Common
European Asylum System, called for at Tampere. Policy developments should build upon the
first  phase  of  that  System  and  be  integrated in  the  second  phase,  thus  paving  the  way  for  a
Tampere-II agenda.

The Commission suggests that as part of that agenda, as far as asylum policies are concerned,
the  strategic  use  and  the  introduction  of  Protected  Entry  Procedures  and  Resettlement
Schemes  should  be  considered.  Furthermore,  consideration  should  be  given  to  the  further
development of legislative measures, refining asylum procedures so that they contribute to a
better management of asylum systems, and preserving asylum for those who are entitled to it.
Any new approach to the international protection regime should first and foremost not result
in shifting, but in genuinely sharing the asylum burden. The Commission therefore suggests
that further reflection is given to substantially assisting the regions of origin through various
means in order to enhance their protection capacity, and to enable them to better cope with the
great  burden  placed  on  them  currently.  Finally,  the  Commission  recommends  that  the
experience gained and the lessons learnt from past projects and current initiatives such as the
Afghan Return Plan are used in informing and devising follow-up strategies.

In  conclusion,  the  Commission  asks  the  Council  and  European  Council  to  endorse  this
Communication  as  the  basis  for  contributing  to  more  accessible,  equitable  and  managed
asylum systems, in view of the preparation of the Tampere-II agenda, the enlarged EU and the
future Constitutional Treaty.

More  specifically,  the  Commission  requests  the  European  Parliament,  Council  and  the
European Council to endorse the following elements, needed in the short to mid long term for
achieving the policy objectives of: 1) managed arrival in the EU, 2) burden-and responsibility
sharing  within  the  EU  as  well  as  with  regions  of  origin  and  3)  efficient  and  enforceable
asylum decision- making and return procedures, as identified in this Communication:

(1) 

a legislative instrument on an EU resettlement scheme, including on the financial
underpinning of such a scheme;

(2) 

a legislative instrument on Protected Entry Procedures;

(3) 

a  legal  basis  building  upon  the  preparatory  actions  financed  out  of  Budget  line
(B7-667)  ‘Co-operation  with  Third  Countries  in  the  area  of  migration’,  which
would  specifically,  and  complementary  to  other  existing  programmes,  support
new approaches to asylum systems in third countries.

The  Commission  will  work 
the
Communication,  in  close  co-operation  with  Member  States,  Acceding  States  and  the
European Parliament, in full partnership with countries of origin, transit and first asylum, and
in close co-operation with UNHCR, and, other relevant stakeholders.

towards  achieving 

the  objectives 

identified 

in 

22