Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to the Council and the European Parliament on the managed entry in the EU of persons in need of international protection and the enhancement of the protection capacity of the regions of origin — “Improving access to durable solutions”’(COM(2004) 410 final)
Date: 2004-12-15
Institutions: European Economic and Social Committee
Subjects: EU migration policy, admission of aliens, cooperation policy, refugee, right of asylum, rights of aliens

C 157/92

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Official Journal of the European Union

28.6.2005

Opinion of the European Economic and Social Committee on the ‘Communication from the
Commission to the Council and the European Parliament on the managed entry in the EU of
persons in need of international protection and the enhancement of the protection capacity of the
regions of origin — “Improving access to durable solutions”’

(COM(2004) 410 final)

(2005/C 157/16)

On 25 August 2004, the European Commission decided to consult the European Economic and Social
Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned
communication.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 25 November 2004. The rapporteur was Ms Le
Nouail-Marlière.

At its 413th plenary session, held on 15 and 16 December 2004 (meeting of 15 December), the European
Economic and Social Committee adopted the following opinion by 139 votes to one, with nine absten-
tions:

1. Gist of the Commission document

ment, access to a legal procedure, and the possibility of
adequate subsistence.

This Communication is the Commission's response to
1.1
Conclusion 26 of the 19/20 June 2003 Thessaloniki European
Council, in which the Commission was invited ‘to explore all
parameters in order to ensure more orderly and managed entry in the
EU of persons in need of international protection and to examine
ways and means to enhance the protection capacity of regions of
origin’.

1.2
It is set out in four chapters, the first of which explores
‘all parameters in order to ensure more orderly and managed entry in
the EU of persons in need of international protection’.

1.3
Resettlement involving the transfer of refugees from an
initial host country or a transit country to the EU (or to a third
country such as Canada, the United States or Australia) is by
definition a managed and orderly entry into the EU. It could
play an important part in the EU's common asylum policy.
Therefore, the Commission believes that there are good reasons
for taking an EU-wide approach in this area and for setting up
an EU resettlement scheme.

1.4
Chapter II looks at ways and means for regions of
origin to enhance the protection of persons in need of interna-
tional protection, and how the EU could assist them in this
task.

1.5
Action to enhance protection capacity requires a coordi-
nated and systematic approach. In this context it is necessary to
work towards a benchmark of effective protection for host
countries to aim at, with the help of and in partnership with
the EU. To do this the EU should first look at the elements it
uses itself when guaranteeing protection to those who require
it, and which focus on protection from persecution and refoule-

1.6
The following aspects of protection could be regarded as
suitable indicators to assess the protection capacity of a host
country and whether a sustainable protection system has devel-
oped. Furthermore, they could serve as orientations for a capa-
city-building benchmark:

— accession and adherence to refugee instruments, including
regional refugee instruments and other human rights and
including with-
international humanitarian law treaties,
drawal of reservations;

— national legal frameworks: adoption/amendment of refugee

and asylum legislation;

— comprehensive and systematic registration and documenta-

tion of refugees and asylum-seekers;

— admission and reception of asylum-seekers;

— support for self-reliance and local integration.

Chapter III examines how to achieve an integrated,
situation-specific

1.7
comprehensive,
approach to asylum and migration issues.

balanced,

flexible

and

To this

end, EU multi-annual

1.8
regional protection
programmes would be brought forward by the Commission
with an agenda of actions and projects on asylum and migra-
tion, and elaborated in full partnership with third countries in
the region. These programmes would be drawn up in conjunc-
tion with, and following the same cycles as, the Regional and
Country Strategy Papers, providing the overarching framework
of EC relations with developing countries.

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1.9
EU regional protection programmes would provide a
‘tool box’ comprising a range of measures — some already in
existence, some still in the process of development and some
still to be proposed: action to enhance protection capacity, a
registration scheme, an EU-wide resettlement scheme, assis-
tance for improving local infrastructure, assistance with local
integration of persons in need of international protection in the
third country, cooperation in the area of legal migration, action
on migration management, and return.

Finally, Chapter IV sets out

1.10
the Communication's
conclusions and outlines the best way forward, which it
requests the European Parliament, the Council and the Euro-
pean Council to endorse.

2. General comments

2.1
The Committee supports the Commission's intention,
based on UNHCR recommendations, but does not believe the
Commission Communication contains sufficient guarantees of
the level of international protection granted since 1951. Sadly,
there remains a need to guarantee this level of protection, and
to increase it, in an international context still hallmarked by
hate-based discrimination that can lead to armed conflict,
discrimination affecting social groups in civilian populations or
individuals belonging to these social groups, and persecution of
individuals or groups by States or non-State agents (groups or
individuals). From this perspective, the Committee supports the
work being carried out in UNHCR's Convention Plus aimed at
improving and adapting refugee status and the Geneva Conven-
tion.

The resettlement programme proposal should more
2.2
clearly emphasise that the primary objective of resettlement as
a durable solution is to re-establish beneficiaries of refugee
status or international protection under the terms of the Quali-
fication Directive (1) as quickly as possible in normal and digni-
fied living conditions as recognised by the Geneva Convention
and UNHCR's Guide to Procedures.

The Committee underlines the need for Member States
2.3
to agree a legal status for recognising and supporting the reset-
tlement schemes already in existence in certain Member States,
and to work towards
for
extending these programmes to other EU Member States and
signatories to the Geneva Convention.

adopting common standards

These programmes would respond to the needs of
2.4
persons genuinely in need of international protection within
the meaning of the 1951 Convention, and prevent abuse of the
asylum system diminishing refugee status and the level of
protection it
the
Committee notes that:

affords. While

concern,

sharing

this

(1) See Directive No. 2004/83/EC, adopted by the Council on

29.4.2004.

— those EU Member States that are signatories to the 1951
Convention remain bound by their international obliga-
tions, though some States no longer even take the trouble
to accept or examine applications, proceeding instead
directly to refusal of entry without examining whether, on
return, the individual's life may be in danger;

— in some Member States reception conditions for asylum-
seekers whose applications have been received but not yet
examined are turning into detention conditions, according
to reports issued by social services, which reveal trauma-
tising circumstances not only for the asylum-seekers them-
selves but also for civil society which, as a consequence, is
forming a very negative opinion of the asylum issue in
general;

— considerable improvements in such areas as the freedom of
movement,
assistance provided by
support,
refugee support groups and integration programmes should
be among the objectives put forward in the Communica-
tion;

financial

— the conditions under which NGOs and refugee associations
can work in reception centres should be improved through
partnership agreements with the authorities in the host
countries, or at least by clarifying their rights.

The blurring of the issue of

2.5
international protection
with the fight against illegal immigration, implying that every
the asylum system and
asylum application is an abuse of
unfounded, and that the protection of refugee status hinges on
global coercive measures, neither improves nor clarifies public
perception of the obligations involved.

European Parliament reports (2), EESC opinions (3) and
2.6
recommendations by international organisations (4) all maintain
implement protection
should not
that Member
programmes as a substitute for processing and examining indi-
vidual applications.

States

(2) See European Parliament report A5-0304/2001 (rapporteur: Mr
Evans) on the Communication from the Commission Towards a
common asylum procedure and a uniform status, valid throughout
the Union, for persons granted asylum (COM(2000) 755 final) and
report A5-0291/2001 (rapporteur: Mr Watson) on the Directive on
minimum standards on procedures in Member States for granting
and withdrawing refugee status. Report of the European Parliament
A5-0144/2004 (Rapporteur: Luis Marinho) on the Communication
from the Commission to the Council and the European Parliament:
Towards more accessible, equitable and managed asylum systems
(COM(2003) 315 final).

(3) See EESC Opinion on the Communication from the Commission
‘Towards a common asylum procedure and a uniform status, valid
throughout the Union, for persons granted asylum’ (COM(2000)
755 final) in OJ C 260, 17.9.2001 (rapporteurs: Mr Mengozzi and
Mr Pariza Castaños), and EESC Opinion on the Directive on
minimum standards on procedures in Member States for granting
and withdrawing refugee status in OJ C 193, 10.7.2001 (rapporteur:
Mr Melicías).

(4) In particular, the Office of the United Nations High Commissioner
for Refugees, the European Council on Refugees and Exiles (ECRE)
and Caritas Europe.

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2.7
The Committee notes that those persons who manage to
cross the EU's borders in the hope of applying for asylum
make up just a small proportion (approximately 1 %) of all
those entitled to apply. UNHCR's 2003 report detailing the
number of people and the populations of concern to it shows
the full scale of the EU's commitments and obligations.

tries in the regions of origin led to EU Member States pulling
back from their obligation to recognise legal refugee status or
subsidiary protection status.

3. Specific comments

including the European Parliament,

In light of the assessments by European NGOs and insti-
3.1
tutions,
the Committee
fears that the Member States' leeway to determine the criteria
for access to resettlement schemes may lead to a gradual
diminution of the protection guaranteed by the standards laid
down in the 1951 Geneva Convention and the 1967 New York
Protocol.

3.2
Prima facie UNHCR recognition of refugees requesting
international protection in the initial country of reception in
the region of origin does not imply recognition of refugee
status in terms of the Geneva Convention but enables UNHCR
to draw up a list of individuals eligible for resettlement. It will
then be up to the authorities in the initial country of reception,
transit or resettlement to grant them either refugee status under
the Convention or subsidiary protection status. The benefici-
aries of a resettlement scheme will have to have been granted
one of the forms of international protection status.

The Committee emphasises the need to examine applica-
3.3
tions on an individual basis irrespective of eligibility for reset-
tlement schemes (with a right to legal redress suspending refou-
lement measures), and fears that
if responsibilities are not
clearly shared and clearly assumed it may lead to the creation
of zones in which responsibility is passed back and forth indefi-
nitely, regardless of the provisions of the Dublin II Convention,
which in any case are not binding on host countries or transit
countries in the regions of origin. Furthermore, making recog-
nition of international protection status conditional on elig-
ibility for a resettlement scheme could lead to Member States
involved in resettlement schemes curbing the number of refu-
gees granted recognition or subsidiary protection status.

for asylum-seekers'

3.4
The Committee supports the Commission's proposal
and views it as an EU contribution to effective protection of
persons with refugee status, provided the legal guarantees for
procedures and respect
individual rights
under international conventions, in particular the Geneva and
New York Conventions, are applied and provided there is no
diminution of the rights of those refugees not meeting resettle-
ment scheme eligibility criteria to have their applications exam-
ined and their status recognised. However,
the Committee
would not view favourably a situation where reinforcement of
capacities in the initial countries of reception or transit coun-

The Committee recommends that the harmonised proce-
3.5
dures adopted by the Council on 29 April 2004 be imple-
mented and revised, and that
the present Communication
avoids a drift towards the examination of applications in the
regions of origin. The Committee believes that the minimum
standards adopted will encourage Member States to offer guar-
antees going further than the standards proposed.

3.6 Many regions have the potential to become sources of
refugees, for a number of reasons: discrimination, human rights
abuse, persecution of human rights activists, natural and related
disasters, famine, financial speculation or climate change, or an
accumulation of causes. The Committee therefore wonders
whether countries bordering asylum-seekers' countries of origin
are always the best placed to receive, recognise and select all
the refugees eligible for resettlement schemes. It also seriously
questions the capacity of EU representations in third countries
to do so without the assistance and intervention of civil society
organisations. The Committee recommends that the harmo-
nised procedures adopted by the Council on 24 April 2004
should be implemented and revised before moving on to the
next step of decentralising the examination of applications in
the regions of origin.

3.7
The Committee fears that assistance from European,
international or local NGOs and associations, already difficult,
will become impossible because of the distance, the extra cost,
the multiplicity of partners representing the public authorities,
strained relations or a lack of resources in certain countries for
local associations.

3.8
Although there is a need to alleviate the burden on the
initial countries of reception or transit in the regions of origin
and to enhance the contribution to restoring normal and digni-
fied living conditions for refugees, cooperation with the initial
countries of reception or
transit on resettlement schemes
should in no case replace the right to apply for asylum on EU
territory nor the obligations of the signatory States to the
Geneva Convention when an individual request for asylum is
made to them.

3.9
The Committee stresses that a ‘political’ approach needs
to be pursued with the countries of origin, in particular calls
and support for respect of human rights. Depending on the
person's individual circumstances, a country can either be his/her
country of origin, the host country or the transit country. This
approach should also involve sharing of responsibility between
states in all regions.

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3.10 Mass
influxes are still possible. The Directive on
temporary protection in the event of a mass influx (1) applies
only to a mass influx into the EU. The Committee regrets that
the Communication gives no indication of the type of assis-
tance it would favour or of the possibility of using resettlement
programmes in such circumstances.

4. Conclusions

4.1
The opening of legal migration channels must be in
response to emigration and immigration needs, whereas asylum
channels must be kept solely for asylum purposes and take full
account of protection needs and the need to re-establish a life
of normality and dignity for refugees,
the
durable economic, social or environmental cooperation and
assistance measures for third countries put in place by the
European Union to complement but not replace individual
international protection. The two issues must not be confused.
Even if certain effects may have related causes, there is no
systematic causal link between regions poorly integrated into
the global economy and human rights violations.

independent of

Efforts to develop a common asylum policy are severely
4.2
criticised from all angles: NGOs and unions at national and
international
level are becoming increasingly alarmed at the
EU's failure to keep its promises. This is the context in which
the Commission's Communication on framing and imple-
menting durable solutions is set.

4.3
The Committee believes that the Commission and the
Council must not ignore the disquiet caused by a situation in
which the Tampere commitments have led to directives or
regulatory measures favouring one approach over another. The
Committee points out that European public opinion is made
up of many different strands, that it is not uniform or mono-
lithic, and that this is characteristic of an open and democratic
society based on the rule of law. The Commission's approach
the
and the Council's decisions should therefore interpret
Tampere commitment to create an area of freedom and justice
with an emphasis on the rights of citizens and individuals as
set out in the Charter of Fundamental Rights and with all the
obligations on States that such an approach entails.

4.4
The results of various national and European elections
(marked by a steadily declining turnout), armed conflicts that
have descended into chronic civil wars, and violations of

Brussels, 15 December 2004.

universal human rights reveal all too clearly the limits to the
security interpretation of the attacks of 11 September 2001.

For

ten years the various EU Member States have
4.5
received and recognised different numbers of refugees, but
whatever the EU's share of refugees world-wide, real needs are
such that support programmes in the regions of origin (Africa,
Caswaname, for example) or resettlement schemes in the EU
itself could help to improve the situation for refugees and
asylum-seekers who are entitled to receive international protec-
tion.

The Committee supports the proposed Communication

4.6
subject to the following clarifications:

— improved processing of asylum claims throughout the terri-
tory of the Member States and an end to the practices of
refusal of entry without an examination of the individual
application in violation of the principle of non-refoulement,
by means of the transposition and rapid implementation by
the Member States of directives, procedures and qualifica-
tions, with the option of applying standards which are
higher than the minimum required;

— improvements in the working conditions for NGOs and
refugee support groups operating in reception centres
through partnership agreements with the authorities of host
countries or, at the very least, clarification of the rights of
such groups;

— re-examination of

the principle of categorising certain
States of origin or transit as ‘safe third countries’, thereby
depriving asylum-seekers of the possibility of an examina-
tion of their individual circumstances and rights;

— clarification of

the primacy of

procedurally and in law, over
status (2);

the Geneva Convention,
subsidiary protection

— clarification that beneficiaries of resettlement schemes will
be granted refugee status under the Geneva Convention and
refugee, or subsidiary protection status as defined in the
Qualification Directive, guaranteeing respect
their
fundamental rights under all circumstances and clarification
that a population of
‘undecided case’s without specific
rights in the EU or third countries where they are resettled
will not be established de facto.

for

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(1) Directive 2001/55/EC.

(2) See Communication from the Commission COM(2004) 503 final

and the corresponding Committee Opinion (SOC/185).