Refugee Protection Between State Interests and Human Rights: Where is Europe Heading?

Kjaerum, Morten.

Human Rights Quarterly, Volume 24, Number 2, May 2002, pp. 513-536 (Article) Published by The Johns Hopkins University Press DOI: 10.1353/hrq.2002.0024

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HUMAN RIGHTS QUARTERLY

Refugee Protection Between State Interests and Human Rights: Where is Europe Heading?
Morten Kjrum*
I. INTRODUCTION The different perspectives to be addressed in this article are well illustrated in two quotations from the High Commissioner for Refugees, Ms. Ogata, and the recent Presidency Conclusions from the Santa Maria da Feira European Council, respectively. Ms. Ogata has stated that human rights concerns go to the essence of the cause of refugee movements, as well as to the precepts of refugee protection and the solution of refugee problems.1 In the Da Feira conclusions the European Union expressed
[I]ts shock at the tragic death of 58 foreign nationals arriving in the United Kingdom. It condemned the criminal acts of those who profit from such traffic in human beings and committed the European Union to intensified cooperation to defeat such cross-border crime which has caused so many other deaths across Europe.2

The two quotations illustrate well the dichotomy between a human rights and a state interest perspective on refugee protection. In the last two decades European refugee policies have changed from being primarily

* Morten Kjrum is the Director of the Danish Center for Human Rights in Copenhagen, Denmark. He graduated from the University of Aarhus in 1984 with an LLM. From 1984 until 1991, he was head of the asylum department in the Danish Refugee Council. He is an expert within the field of international human rights law and refugee law and has published extensively on these issues in Danish, Nordic and international journals. In 2002, Mr. Kjrum became a member of the UN Committee on the Elimination of all Forms of Racial Discrimination. 1. Ms. Sadako Ogata, 7 Feb. 1995 (speech at Oxford University). 2. Presidency Conclusions, Santa Maria Da Feira European Council, 1920 June 2000, available at <http://ue.eu.int/Newsroom> (visited 28 Feb. 2002).

Human Rights Quarterly 24 (2002) 513536 2002 by The Johns Hopkins University Press

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rooted in humanitarian considerations to becoming more focused on state interests. One of the consequences of this change is that the human rights machinery today plays a stronger role than hitherto as an instrument to counterbalance state powers. Consequently, we are now witnessing a conflict between new refugee policies and human rights law. The purpose of this article is to examine the impact of this conflict on refugee policies as well as on human rights law in general. The two key human rights standards linked to refugee protection are the right to seek and enjoy asylum as guaranteed in the Universal Declaration on Human Rights and the non-discrimination principle as embodied in Article 26 of the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the 1951 Refugee Convention. Whereas the right to seek asylum grants the possibility to access another territory and thereby, in principle, offers a safe haven from persecutors, the prohibition against discrimination constitutes an important precondition of real protection in the country of refuge. In any protection regime, these two elements will be the core of the analysis.

II. THE RIGHT TO SEEK AND ENJOY ASYLUM A. Universal Declaration of Human Rights In 1948, profoundly influenced by the atrocities of World War II, the right to seek and enjoy asylum from persecution became human right number 14 of the Universal Declaration of Human Rights (UDHR).3 In particular, the nonadmission policy, which had been adopted by many states in relation to German Jews, Roma and others in the 1930s, had catastrophic consequences because Jews and others found nowhere to seek asylum.4 Any individual should be granted the right to enter the territory of another state to apply for protection. Moreover, it followed logically from several of the other principles embodied in the UDHR that the international community should request countries to afford the right to seek asylum to individuals who were subject to violations of the human rights listed in the UDHR. Otherwise people would, in some cases, be less inclined to stand up for

3. 4.

See Morten Kjrum, Article 14, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD OF ACHIEVEMENT 217, 218 (Gudmundur Alfredsson & Asbjrn Eide eds., 1992). At the fifth meeting in the working group on the Declaration of Human Rights, Mr. Easterman, World Jewish Congress, stated that [m]any refugees from Germany had been denied this right which had resulted in the death of thousands. U.N. Doc. E/CN.4/AC.2/ SR/5, 8 Dec. 1947, at 4. This assessment was later supported by Ms. Eleanor Roosevelt, Chair of the Human Rights Commission, U.N. Doc. E/CN.4/SR.56, 4 June 1948, at 9.

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their rights and to further develop the international respect for human rights norms.5 The right to seek asylum was reaffirmed at the 1993 UN World Conference on Human Rights in Vienna,6 and it is part of the draft EU Charter on Fundamental Rights.7

B. Non-Arrival and Non-Admission Policies8

1. Non-Arrival
New trends developed in the international refugee regime as a result of the increase in the number of asylum seekers in the late 1980s and early 1990s. In particular, the United States and countries in Western Europe introduced a non-arrival or non-entry9 policy in order to create barriers for the new influx of asylum seekers. In the first period starting in the late 1980s, these policies developed with a multi-faceted approach: visa requirements combined with carrier sanctions (today used by most OECD countries); the creation of international zones in airports (France); isolation of applicants and processing of applications for asylum at military bases abroad (the United States in the case of the Haitians at the Guantanamo base in Cuba); and safety zones within the home country where individuals received international assistance and protection (Kurdish refugees in Iraq and Bosnian refugees in Bosnia-Herzegovina).10 Often, these policies were combined in various ways to suit the specific situation. In Western Europe, the implementation of non-arrival policies led to a dramatic decrease in the aggregate number of asylum seekers: from 692,685 in 1992 to 350,000 in 1998.11

5. 6. 7. 8. 9. 10.

11.

Official Records of the Third Session of the General Assembly, Part I, Social, Humanitarian and Cultural Questions, Third Committee, Summary Records of Meetings, 21 Sept. 8 Dec. 1948, at 337. Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, 23, U.N. Doc. A/CONF.157/24(1993), reprinted in 32 I.L.M. 1661 (1993) [hereinafter Vienna Declaration]. Draft Charter of Fundamental Rights of the European Union, art. 18, 2000 O.J. (C 364) 1. Gregor Noll & Jens Vedsted-Hansen, Non-Communitarians: Refugee and Asylum Policies, in THE EU AND HUMAN RIGHTS 359, 38283 (Philip Alston ed., 1999) (elaborating on this useful distinction). Terje Einarsen, Mass Flight: The Case for International Asylum, 7 INTL J. REFUGEE L. 551, 555; GUY GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 19194 (2d ed. 1996). Jens Vedsted-Hansen, Non-admission Policies and the Right to Protection: Refugees Choice Versus States Exclusion? in REFUGEE RIGHTS AND REALITIES: EVOLVING INTERNATIONAL CONCEPTS AND REGIMES 269, 270 (Frances Nicholson & Patrick Twomey eds., 1999); Noll & Vedsted-Hansen, supra note 8, at 38284. Note from Intergovernmental Consultations Secretariat, 5 Feb. 1998 (on file with author).

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These policies, which were mainly developed at the national level, are increasingly being incorporated into EU law.12 Despite well-founded human rights arguments13 referring to the right to seek asylum and the nonrefoulement principle,14 a general implementation of visa restrictions combined with carrier sanctions was codified in the 1990 Schengen Convention.15 According to the Amsterdam Treaty, the Schengen Convention is becoming part of EU law.16 The next step in implementing these policies has been the posting of immigration officers or Airline Liaison Officers (ALO) in either countries of origin of asylum seekers or important transit countries such as Pakistan and Turkey. According to the 1996 joint position from the EU Council, the immigration officers are supposed to assist the officers who carry out checks on departures locally on behalf of the local authorities or on behalf of the airlines.17 The primary aims are to detect false travel documents and train local staff. These practical strategies for implementation were developed at the national level and are now coordinated by the European Union. This was reaffirmed in the Tampere Conclusions, where it was stated that: A common active policy on visas and false documents should be further developed including closer co-operation between EU consulates in third countries and, where necessary, the establishment of common EU visa issuing offices.18 In the newly published report commissioned by UNHCR on the trafficking and smuggling of refugees, it is stated that:

12.

KONTEKST

13. 14.

15. 16. 17. 18.

See, e.g., KIM ULRIK KJR, DEN RETLIGE REGULERING AF MODTAGELSEN AF ASYLANSGERE I EN EUROPISK 104 (2001); HLNE LAMBERT, SEEKING ASYLUM, COMPARATIVE LAW AND PRACTICE IN SELECTED EUROPEAN COUNTRIES 198202 (1995) (for explanation of carrier sanctions and visa restrictions). Herman Meijers, Possibilities for Guaranteeing Transport to Refugees, in THE ROLE OF AIRLINE COMPANIES IN THE ASYLUM PROCEDURE (Morten Kjrum ed., 1988); Erika Feller, Carrier Sanctions and International Law, 1 INTL J. REFUGEE L. 48 (1989). The non-refoulement principle follows from article 33 of the 1951 Refugee Convention: No Contracting State shall expel or return (refouler) a refugee in any manner whosoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Schengen Convention, 1990 O.J. (L 239) 19. Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, at Protocol No. 2, 1997 O.J. (C 340/ 1), reprinted in 37 I.L.M. 56 (1998). Joint position of 25 Oct. 1996, EFT 1996 C 80/1. Presidency Conclusions of the Tampere European Council, Finland, Oct. 1999, 22, available at <http://ue.edu.int/Newsroom> (visited 28 Feb. 2002). The activities of the immigration officers are specified in the Action Plans of the EU High Level Working group on Asylum and Migration. These plans are established for a number of countries, including Sri Lanka, Pakistan, and Iraq.

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[A]n inspection of the operational manuals used by [Airline Liaison Officers], as well as Government reports of their activities, shows no reference to possible refugee protection issues or other human rights concerns. Rather, the focus is on blanket border control against irregular migration and information-gathering to support strategic anti-trafficking measures.19

Neglecting the protection issue will and has undoubtedly already lead to refoulement. In the report just quoted this is referred to as presumptive refoulement.20 Referring to the quotation in the opening of this article from the De Feira Conclusions, it should be noted that the increased focus on trafficking in refugees has been a relatively new development resulting from European policies. It is not merely a result of the horrible incident in Dover this spring, though that event will most likely increase the efforts already taking place. Nor has the development come as a surprise to people who have closely followed this area. Rather the sharp increase in human trafficking is a direct result of the above-mentioned policies and the lack of alternative measures. When comparing the countries where the activities of the immigration officers are most developed,21 with the main nationalities being smuggled to Europe, and with the list of people being granted asylum in Europe, there is a clear correlation. The same countries figure on all lists: Somalia, Afghanistan, Iraq and Sri Lanka, just to mention a few.22 This comparison clearly indicates that people in need of protection are being prevented from using their right to seek asylum caused by the attempts to fight trafficking. From the Tampere meeting to the meeting in Da Feira there is a change in the wording regarding trafficking. In the Tampere conclusions it is stated that [t]hese common policies must . . . offer guarantees to those who seek protection in or access to the European Union.23 In the Da Feira conclusions, this important modification was absent.

2. Non-Admission
Despite the increasing difficulties in getting access to EU countries to apply for asylum, a number of asylum seekers still arrive in the territory of the member states. In 1999 approximately 325,000 people applied for asylum

19. 20. 21. 22. 23.

John Morrison with the assistance of Beth Crosland, The Trafficking and Smuggling of Refugees: The End Game in European Asylum Policy? [July 2000, pre-publication ed.], at 42, available at <http://www.unhcr.ch/> (visited 1 Feb. 2002). See id. at 6. See Specified in Action Plans of the EU High Level Working Group on Asylum and Migration, Doc. C/98/431. See Morrison, supra note 19, at 2728. Presidency Conclusions of the Tampere European Council, Finland, Oct. 1999, available at <http://ue.eu.int/Newsroom> (visited 28 Feb. 2002).

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in one of the member states of the European Union.24 In order to limit the number of people eventually obtaining refugee status, two features have been common throughout the last decade: the introduction of a more formalized safe third country concept and more restrictive asylum practice. The safe third country practice developed in the 1990s from the first country of asylum concept which stems from the mid-1970s. In legal terms, the concept was developed at the national level in the interface between the right to seek, but not to obtain, asylum and the non-refoulement principle.25 Under Article 3(5) of the Dublin Convention, contracting states are permitted to pursue their domestic policies in relation to third countries and thereby not to apply the convention mechanisms.26 So far, no harmonized safe third country concept has developed in Europe.27 However, an elaborate system of readmission agreements has been put in place. Experiences from the 1980s may indicate that the readmission system is an important precondition for any safe third country policy to be effective. These agreements do not differentiate between different groups of individuals being returned to the specific country, thereby failing to obligate the receiving country to give the persons in question access to an asylum procedure. The absence of a protection or human rights perspective in this regard is well illustrated when looking at the amount of resources and attention paid by the EU countries to assist East and Central European countries in building up border controls and capacity to fight trafficking in human beings rather than securing fair and efficient asylum procedures.28 This is an integral part of the EU aquis29 for candidate countries. Consequently, the legal safeguards generally applying to the safe third country concept do not offer the level of protection which is presupposed in the right to seek asylum and the non-refoulement principle. Those who are not returned to a safe third country will have their case tried in a regular asylum procedure. Throughout the years still more restrictive criteria have been applied at the national level. This has materialized in a fairly rigid assessment applied by immigration authorities when contradictions and inconsistencies occur in the story told by the asylum seeker. Furthermore, states have interpreted the 1951 Refugee

24. 25. 26. 27. 28. 29.

UNHCR, THE STATE OF THE WORLDS REFUGEES, FIFTY YEARS OF HUMANITARIAN ACTION 32125 (2000). See Morten Kjrum, The Concept of Country of First Asylum, 4 INTL J. REFUGEE L. 514 (1992). Convention determining the state responsible for examining applications for asylum lodged in one of the Member States of the European CommunitiesDublin Convention, article 3(5), 1997 O.J. (C 254) 1. See SANDRA LAVENEX, SAFE THIRD COUNTRIES 7678 (1999). See id. at 11617. The EU-Acquis contain the conditions to be met in order to become a member of the EU.

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Convention in a still more restrictive manner. The restrictive application of the 1951 Convention was one of the tools used for sending a signal to asylum seekers that they should apply for asylum in other neighboring countries. This approach seems to have been carried over to the EU level. The most remarkable example is the 1996 joint position on the harmonized application of the definition of the term refugee in the 1951 Convention.30 Despite the fact that many states recognized victims of persecution by non-state agents as refugees in the sense of Article 1(A) of the Convention, and despite the fact that this is a recognized principle in human rights law, the joint position in vague terms suggests a more restrictive interpretation. Furthermore, the joint position is silent in relation to whether particular persecution of women can be recognized under the social group definition.31 Incorporating carrier sanctions into EU law, strengthening the collaboration between immigration officers in third countries and focusing on trafficking without making a distinction between migration and people seeking protection will all challenge the right to seek asylum and the nonrefoulement principle. Barriers surrounding the EU countries will be so difficult to bypass that those people who cannot find protection elsewhere will be in dire need as long as no alternative solutions are established. For those who nonetheless find their way to one of the EU countries the safe third country concept and restrictive procedures and interpretations jointly create a non-admission policy. The non-admission policy adds another element to a coherent European policy the main objective of which is to allow only an absolute minimum of third country citizens to remain in the particular states territory. The state interest policy is dominant in comparison with human rights protection.

III. THE PRINCIPLE OF NON-DISCRIMINATION A. International Standards The prohibition against discrimination, or the right to equal treatment, is explicitly stated in all human rights conventions, and several conventions have been established with the sole purpose of combating one form of

30.

31.

Joint Position Defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term Refugee in Convention Relating to the Status of Refugees, art 1, adopted 28 July 1951, U.N. Doc. A/CONF.2/108 (1951), 189 U.N.T.S. 150 (entered into force 22 April 1954), reprinted in 3 WESTON III.G.4 [hereinafter Refugee Convention]. See Noll & Vedsted-Hansen, supra note 8, at 381.

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discrimination, such as race or gender. It is an important feature of the common human experience that discrimination based on ethnicity or national origin constitutes a destabilizing factor in any society. In relation to refugees and the protection against discrimination in the country of refuge, the key legal instruments are the UN Convention on the Elimination of All Forms of Racial Discrimination, the European Human Rights Convention and the 1951 Refugee Convention. In the years to come, the new Article 13 in the Amsterdam Treaty will most likely come to play an important role as well. The protection against discrimination provided by the 1951 Refugee Convention is not exhaustive. The preamble merely affirms the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.32 Furthermore, in Article 3 it is said that the provisions in the Convention shall be applied without discrimination. Finally, in relation to each of the articles addressing entitlements, it is indicated that the level of benefits should be the most favourable treatment accorded to nationals of a foreign country or equal to nationals.33 Discrimination is a cause of flight, and non-discrimination is an integral part of protection. Nonetheless, whereas the former has been well researched and described in the last couple of decades, less attention has been paid to the latter.34 This may be explained by the fact that it is only recently that European policies have changed in this regard in a manner which highlights some of the issues at stake. As an indication of the introduction of new policies in Europe the policy paper circulated during the Austrian EU presidency illustrates well the trend that will be described further below. In the said document the question is raised to what extent nationals of third countries who have not settled permanently may also be entitled to the substantial social welfare benefits available in Western European States to their own nationals.35 In the following sections, the focus will be on the principle of non-discrimination as an integral part of protection.

B. New Trends in Europe It is worth noting that despite the attempt made in the Austrian policy paper referred to above, these policies are not yet harmonized to the same degree at the EU level as the non-arrival and non-admission policies. This means that they still have some of the same characteristics as the national laws

32. 33. 34. 35.

Refugee Convention, supra note 30, at preamble. Id. at art. 3. See Danile Joly, A New Asylum Regime in Europe, in REFUGEE RIGHTS note 10, at 347. European Union, The Council, CK4 27, ASIM 170, 9809/98, 83.

AND

REALITIES, supra

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regarding admittance to the country had in the mid 1980s: each country is downgrading the entitlements of refugees in order to avoid becoming more attractive to asylum seekers. Furthermore, the area is more complicated to harmonize because it is deeply intertwined with general welfare and housing policies in relation to nationals of the state.

1. Non-Inclusion
Although states have a broad discretion in regard to the reception standards for asylum seekers, it is important that they at a minimum ensure the basic dignity and human rights of the asylum seeker.36 The standard of living for the asylum seeker should relate to the general cost of living and to the welfare system in the specific country. Furthermore the asylum seeker s situation should in all circumstances be adequate for the specific country. This is increasingly not the case. In April 2001, Great Britain introduced new legislation which will change the welfare system for asylum seekers drastically. In the future, asylum seekers will be assigned to specific places to live with no possibility of claiming housing benefits or local authority housing. Additionally, financial assistance will be limited to GBP 10 per person per week in cash. Vouchers, which can be used in local supermarkets and shops, will be handed out to cover expenses for food and clothing. The number of vouchers given depends on whether the person is entitled to meals in the housing facility to which he or she has been assigned. Similar or other restrictions are being introduced in other EU countries.37 During the crisis with the Bosnian refugees, temporary protection schemes were introduced in many countries.38 This legislation was followed up with comparable legislation dealing with refugees from Kosovo in 1999.39 Initially the governmental interest in introducing a temporary protection regime was fueled by a desire to effectuate rapid repatriation, as soon as this option became available. However, the subsequent debates at the national level in different European states regarding the introduction of general temporary protection schemes focused, to a large extent, on entitlements rather than on the temporary nature of the stay itself. Denmark offers a particularly clear case of non-inclusion in its legislation regarding Bosnian

36. 37. 38. 39.

See Reception Standards for Asylum Seekers in the European Union, UNHCR, July 2000 at 220. See FABRICE LIEBAUT, LEGAL AND SOCIAL CONDITIONS FOR ASYLUM SEEKERS AND REFUGEES IN WESTERN EUROPEAN COUNTRIES 31516 (2000). The temporary protection schemes in Denmark, Norway and Sweden are analyzed in the comparative study: Jens Vedsted-Hansen et al., Midlertidigt asyl i Norden, Nord 1999:3. The Danish Immigration law was amended by law no. 251, 28 April 1999, to offer temporary protection to people fleeing the war in Kosovo.

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refugees. They were assigned to housing facilities in camps in remote places, the children were not taught Danish but Bosnian, and they received no working permits in the first period of their stay. In relation to the refugees from Kosovo the legislation in Denmark seemed clearly to have been designed for getting around the non-discrimination clauses on social and economic rights in the 1951 Refugee Convention.40 Changing social welfare legislation in relation to asylum seekers as done in Great Britain is less complicated than in relation to refugees recognized according to the 1951 Refugee Convention. As established in Article 23 of the Convention, refugees have the right to receive the same treatment with respect to public relief and assistance as accorded to nationals. However, as one of the first countries in Europe, Denmark introduced an integration act in 1998.41 The Act establishes the legal framework for housing and social relief during the refugees first three years in Denmark. Thereby, the government gets the advantage of segregating refugees from the normal social welfare legislation. Apart from a few positive elements in relation to housing, the Act downscales the social rights for newly arrived refugees. Two elements should in particular be noticed: firstly, according to the Act, refugees would receive a 20 percent reduction in their social welfare benefits during the first three years of their stay in the country. In many cases the reduction was even greater. This part of the Act was eventually repealed after one year. Secondly, the Act establishes structures which make it almost impossible for refugees to move to another municipality than the one he or she has been assigned to. Thus, the refugees freedom of movement is severely restricted.42

2. Exclusion
In relation to housing there is an ongoing tension in many European countries in relation to the formal policy of referring refugees to all parts of a given society. The aim is to avoid ghettos and to ensure that all parts of society help shoulder what is perceived as a burden. However, a large proportion of the housing market is, in reality, not accessible to refugees.

40.

41. 42.

See Brief from the Danish Center for Human Rights to the Danish Ministry of Interior on the draft legislation regarding temporary protection for persons from Kosovo (Apr. 1999) (on file with author). For further details of the legal analysis, see Morten Kjrum, Temporary Protection in the 1990s, 6 INTL J. REFUGEE L. 444 (1994); Joly, supra note 34, at 346. Law no. 474, 1 July 1998 (Integration Act). Brief from the Danish Center for Human Rights to the Danish Ministry of Interior on the draft Integration Act, Jan. 1998 (Brief no. 69, available at Danish Center for Human Rights Library Database <www.humanrights.dk> (visited 28 Feb. 2002); LIEBAUT, supra note 37, at 58.

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Policies have not aimed at opening the restricted housing areas but rather at limiting access to the open part of the market. In Denmark, despite the fact that the Eastern High Court in 1991 stated that it is illegal to establish quotas in these housing areas due to their discriminatory effects,43 the legislation has been made even more flexible and open to a quota system. The right to housing is increasingly being obstructed by these official Danish policies. The discrimination within the housing area has even stronger implications when the law demands a certain quality of housing in order to grant family reunification.44 The most dramatic and direct form of exclusion is the expulsion from a country. Extradition cases regarding refugees and immigrants who have committed a crime are today common in European court rooms due to more restrictive legislation. Politically, this is an important area since it combines the law and order agenda prevailing in all European countries with xenophobic tendencies. Criminals in general, and criminals from ethnic minorities in particular, are creating fear and angst. This even applies to countries where the crime rate is declining. There is a call for control, or, in the words of Bauman:
Governments cannot seriously promise anything but more flexibility of labourthat is, in the ultimate account, more insecurity and even more painful and incapacitating insecurity . . . . Doing something, or being seen to be doing something, about fighting crime threatening personal safety is, however, a realistic optionand one containing a lot of electoral potential. Sicherheit will gain little as a result, but the ranks of voters swell.45

Finally, public discourse has to be mentioned as one of the most important factors in todays Europe in excluding refugees and immigrants from society. Terms and expressions are being used by the media and in the official discourse which are designed to create a general atmosphere of suspicion, confusion and bad will among the public. Governments and mainstream political parties are increasingly becoming part of this common language. It is rapidly named political correctness if a person asks for a more sober and precise debate. In several countries, the inherent conflict between upholding the freedom of speech and combating hate speech is most often weighed to the benefit of the person relying on his or her right of expression rather than to protect the refugees or immigrants who are subjected to racist comments. The negative language which dominate the public discourse contributes to the current political climate which is the

43. 44. 45.

1991 Danish Weekly Law Review 358, Easter High Court. Migrant Workers and their Families, Protection within the European Social Charter, Council of Europe 40 (1996). ZYGMUNT BAUMAN, GLOBALIZATION: THE HUMAN CONSEQUENCES 118 (1998).

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precondition for the restrictive admission policies, thereby further marginalizing refugees when offered protection in European communities. The new trends in Europe are, in general terms, characterized by noninclusion or exclusion. For decades racism and discrimination have been part of everyday life for foreigners and refugees in different countries or regions of Europe. However, in recent years these tendencies seem to have manifested themselves in all parts of Europe. Moreover, they are increasingly being formalized in official policy and legislation. What would have been considered part of far right wing policy a few years ago is now, in many cases, labeled as mainstream politics. Consequently, current noninclusion and exclusion policies are further marginalizing refugees and in several cases threatening their protection.

IV. THE TREATMENT OF REFUGEES BECOMING A HUMAN RIGHTS ISSUE A. Human Rights as Part of Official Policy At the European level, a new refugee regime has been taking shape. When looking at the last three decades, the changes can be characterized as follows: phase one, from 1973 to the mid-1980sthe asylum procedures were being shaped as a consequence of the immigration stop in most European countries; phase two, from the mid-1980s to the end of the 1990snew, more restrictive regimes were being implemented in most countries and the European harmonization was taking its first important steps; phase threewhich is the current phasewill most likely see a consolidation of the restrictive policies, a shift from third to first pillar46 will consolidate a European approach, and finally an increased human rights impact. It is this final aspect that will be discussed in the following section. When studying documents concerning refugee protection from intergovernmental organizations, i.e., the UNHCR and the European Union, there is an astonishing absence of human rights language until the early 1990s. Reference is most commonly made to humanitarian concerns,47 humanitarian law,48 or broader categories. In the early EU documents such as the Dublin Convention and the London resolutions, there is little or no reference to the European Human Rights Convention or other human rights instruments. Protection of refugees was not perceived as being part of the
46. 47. 48.

See LAVENEX, supra note 28, at 1415. Cf. Ex. Comm. Conclusion No. 44, 1986 (Detention of Refugees and Asylum Seekers). Cf. Ex. Comm. Conclusion No. 48, 1987 (Military and armed attacks on refugee camps and settlements).

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human rights obligations of the state. It was rather seen as a humanitarian offer based on the political will of the state. More recent documents such as the draft directive on temporary protection, the Tampere presidency conclusions, not to mention the Amsterdam Treaty, refer in a fairly comprehensive manner to international and regional human rights standards. Most profound is the new EU Charter on Fundamental Rights. The same evolution can be seen at the national level where politicians and civil servants are much more aware of the necessity to include human rights aspects in the law-making process. The Da Feira Conclusion illustrates well that this is not an unambiguous development.49

B. Developments in the European Court on Human Rights and UN Treaty Bodies Parallel to the development of more restrictive state regimes, there has been an increase in cases regarding refugees and asylum seekers being brought to either the European Court on Human Rights or the UN treaty bodies. Apart from a general growing human rights awareness in the postcold war period, this evolution can be ascribed to the introduction of still more restrictive refugee practices in Europe. The human rights conventions havecontrary to the Refugee Conventionestablished courts or expert committees with the competence to interpret the particular convention.50 Asylum seekers and refugees have used these options for petition when restrictive policies have led to violations of particular rights. If a similar treaty body had been established by the 1951 Refugee Convention, the human rights instruments would most likely have played a more marginal role.51 When looking at the cases brought to the human rights bodies the issues raised generally concern the above mentioned areas of the right to seek asylum and discrimination.

1. Non-Arrival
For obvious reasons there are very few cases which could in fact challenge the policies constituting the non-arrival regime because the concerned individuals rarely get the chance to get in close contact with a lawyer who
49. 50. 51.

See Da Feira Conclusion, supra note 2. Tom Clark & Francois Crpeau, Mainstreaming Refugee Rights: The 1951 Refugee Convention and International Human Rights Law, 17 NETHERLANDS Q. HUM. RTS. 389 (1999). Convention Relating to the Status of Refugees, adopted 28 July 1951, U.N. Doc. A/ CONF.2/108 (1951), 189 U.N.T.S. 150 (entered into force 22 Apr. 1954).

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could bring their cases to court. However, in the case Amuur v. France,52 the European Court on Human Rights found that the French state could not define the airport as an international zone with extraterritorial status. Thus asylum seekers held in the airport detention center should be granted the same rights according to the European Human Rights Convention and the 1951 Refugee Convention as asylum seekers in other detention facilities. Consequently, France should provide for legal, humanitarian and social assistance as well as they should lay down procedures and time limits for access to such assistance. The court ruled that the French legislation did not sufficiently guarantee the right to liberty.53 Furthermore, both the UN Human Rights Committee54 and the Committee on the Elimination of Racial Discrimination (CERD)55 have expressed concern about the French practice of carrier sanctions. The CERD found that the question of delegation of responsibilities . . . should be exercised by State officials.56 Finally, the Human Rights Committee has in its General Comment on Freedom of Movement (Article 12) included a paragraph on the legal and practical restrictions on the right to leave. The Committee urges in that regard states to include information in their reports on measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country.57

2. Non-Admission
In a number of cases the European Human Rights Commission and Court have established a practice in relation to what could be called inhuman return of an individual.58 This practice derives from the prohibition against torture and inhuman treatment in Article 3 of the European Human Rights Convention.59 In the case of Chahal from 1996, the Court phrased its interpretation in the following way:
52. 53. 54. 55. 56. 57. 58.

59.

Amuur v. France, 1996-III Eur. Ct. H.R. 826. See id. at 852. Concluding Observations of the Human Rights Committee: France, 4 Aug. 1997, U.N. Doc. CCPR/C/79/Add.80 (1997). CERD/C/56/misc.20/Rev.4, 23 Mar. 2000; CERD/C/SR.1373 42, 9 Mar. 2000. See id. Freedom of Movement Art. 12, General Comment No. 27, U.N. ICCPR, Hum. Rts. Comm., U.N. Doc. CCPR/C/21/rev.1/Add.9 (2 Nov. 1999). Cf. Jens Vedsted-Hansen, Torturforbud som udsendelsesbegrnsning: Non-refoulementvirkningen af EMRK artikel 3 (The prohibition against torture setting limits to expulsion: The non-refoulement effect of Article 3 of the European Convention on Human Rights), EU OG MENNESKERET, no. 2, at 4957 (May 1998). European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3, opened for signature 4 Nov. 1950, 213 U.N.T.S. 221, 224 Europ. T.S. No. 5 (entered into force 3 Sept. 1953).

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[I]t is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country.60

The UN Committee Against Torture (CAT) has established an interesting practice which on several points supplements the practice of the European Court on Human Rights.61 The Committee received its first case in 1994 regarding Article 3, which prohibits the expulsion of a person to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture.62 The CAT has addressed some of the problems raised due to still more restrictive asylum procedures, such as the rigid assessment applied by immigration authorities when contradictions and inconsistencies occur in the story told by the asylum seeker. In particular, this is a problem when dealing with victims of torture. By using modern psychological knowledge, CAT states that complete accuracy is seldom to be expected by victims of torture and that such inconsistencies should not raise doubts about the veracity of the application for asylum.63 The Committee puts emphasis on the so-called Post Traumatic Stress Disorder Syndrome. This has led to several decisions where the Committee would consider it a violation of Article 3 to return the asylum seeker. Furthermore, in relation to administrative procedures, the Committee has stated that procedural regulations excluding the possibility to include political actions carried out by the applicant in the asylum country would not be compatible with Article 3.64 In this manner, the Committee has upheld the old refugee sur place concept which several European countries have tried to rule out in their practice.65 The issue of whether persecution by non-state actors can qualify as a reason for obtaining protection has been raised by the European Court of

60. 61.

62. 63. 64. 65.

Chahal v. United Kingdom, 1996-V Eur. Ct. H.R. 1831 74. (1996). See Morten Kjrum, FlygtningeretMenneskeret, Non-refoulement bestemmelsen i FNs Konvention mod Tortur (The non-refoulements prohibition in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), EU-RET OG MENNESKERET, JF, 817 (2 May 1999). Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3. Aemei v. Switzerland, Communication 34/1995, Observations by the United Nations Committee Against Torture, 9 May 1997. See id. Cf. TERJE EINARSEN, RETTEN TIL VERN SOM FLYKTNING (THE RIGHT TO BE PROTECTED AS A REFUGEE), BERGEN 60611 (2000).

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Human Rights (ECHR). Several cases on this issue have been brought to the ECHR, such as the Ahmed case66 from 1996 where the court stated that it follows that the applicants deportation to Somalia would breach Article 3 of the Convention for as long as he faces a serious risk of being subjected there to torture or inhuman or degrading treatment.67 The fact that there was no indication that any public authority would be able to protect him in Somalia was regarded as one of the decisive factors. In two cases from 1997, this interpretation by the court was challenged by the German Federal Administrative Court which concluded that the ECHR had overextended its application of the European Human Rights Convention and infringed upon the sovereignty of state parties to the Convention.68 The argument was that Article 3 is limited to acts carried out by or with the acquiescence of agents of states. This raises an interesting question in relation to the Dublin and Schengen Conventions and the safe third country concept. Can Germany be considered a safe third country in these particular cases? The issue was tried in the case T.I. v. The United Kingdom.69 The court found that
[T]he indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention. Nor can the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims.70

The case was, nonetheless, declared inadmissible because Germany gave assurance that it would permit a second hearing of the case.

C. Discrimination Several of the aspects connected with non-inclusion and exclusion relate to economic, social and cultural rights which in legal terms are not as justiciable as civil and political rights. At the regional level the ECHR does not comprise economic and social rights and violations of the European Social Charter cannot be tried by the Court. In relation to the International

66. 67. 68. 69. 70.

Ahmed v. Austria, 1996-VI Eur. Ct. H.R. 2195. Id. at 2208. Judgement of 15 Apr. 1997 and Sept. 1997. T.I. v. United Kingdom, Appl. no. 43844/98, Admissibility Decision, 7 Mar. 2000 available at <http://hudoc.echr.coe.int/hudoc/> (visited 1 Feb. 2002); see generally NUALA MOLE, ASYLUM AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS (2000). T.I. v. United Kingdom, supra note 69.

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Covenant on Economic, Social and Cultural Rights there is no individual complaint mechanism. One of the recommendations in the Vienna Programme of Action from the UN World Conference on Human Rights in 1993 was to make an optional protocol to the Convention, that is, introducing the right to petition.71 This work has not yet been finalized. Consequently, the possibilities of challenging the restrictions individually are very limited. There are, however, options whereby the European Social Charter instruments or the CERD Committee can be used. Furthermore, issues can be raised in general terms in alternative reports under the reporting mechanisms of the different conventions. Finally, domestic courts are increasingly open to address economic and social rights issues.

1. Non-Inclusion
A key issue for refugees and asylum seekers is the access to proper primary school education for their children. In many states, including Denmark, children of asylum seekers only receive a rudimentary school education as was the case with refugees on temporary protection. The right to education, as established in Article 14 of the International Covenant on Economic, Social and Cultural Rights, and Article 28 of the Convention on the Rights of the Child, must be adequate in quality, relevant to the child and must promote the realization of the childs other rights.72 The issue was raised by the Committee on the Rights of the Child in its concluding observations on Denmark in 1995.73 Shortly after having received the critical remarks the Danish government developed further the primary school education for children of asylum seekers. In regard to the particular integration allowance mentioned above, Denmark was criticized by the UNHCR for not being in conformity with Article 23 of the 1951 Convention which includes a non-discrimination principle in relation to public relief and assistance. Furthermore, in its concluding observations the Committee on Economic, Social and Cultural Rights expressed concern that the integration allowance could have a discriminatory impact on refugees.74 Consequently, this part of the Integration Act was repealed.

71. 72. 73. 74.

Vienna Declaration, supra note 6, at pt. II, 75. General Comment No. 11, On Plans of Action for Primary Education (article 14), Committee on Economic, Social and Cultural Rights, U.N. Doc. HRI/GEN/1/Rev.5 (26 Apr. 2001). See Concluding Observations of the Committee on the Rights of the Child: Denmark, Report of the Eighth Session, 29, U.N. Doc. CRC/C/15 Add.33 (15 Feb. 1995). See Concluding Observations of the Committee on Economic, Social, and Cultural Rights: Denmark, U.N. Doc. E/C.12/1/Add.34 (14 May 1999).

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Finally, in relation to temporary protection it should be mentioned that the EU Commission in June of 1998 proposed a joint action dealing specifically with temporary protection, which was transformed into a proposal for a Council Directive in May of 2000.75 In general, the level of entitlements in the draft directive is in accordance with the standards established in the 1951 Refugee Convention and human rights conventions. Article 3 of the directive is inserted expressly . . . to make it clear from the outset that the aim is not to derogate from or circumvent the Member States international obligations.76 However, it is still uncertain whether these proposals will eventually turn into binding community law when shifting from the third to the first pillar.77

2. Exclusion
Excluding refugees from ordinary housing constitutes a strong measure of marginalization. The general trend in Europe is that governments fail to address this kind of discrimination in a coherent manner. Their preoccupation is rather directed towards avoiding ghettos, however, not opening new housing markets. For this reason, the Committee on Economic, Social and Cultural Rights in particular noted when the Italian government took initiatives which gave foreigners equal standing with Italian citizens regarding access to residential and public housing and credit on favourable terms.78 Apart from this, France,79 Finland,80 and Denmark, among others, have been criticized for not addressing discrimination in the housing market. With regard to Denmark, the Committee on the Elimination of Racial Discrimination expressed its concern that decisions regarding quotas for newly arrived refugees and/or asylum seekers can be arbitrary in their effects.81

75.

76. 77. 78. 79. 80. 81.

Proposal for a Council Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, COM(00)303 final, Brussels, Bel. (24 May 2000). Id. at Explanatory memorandum 5.3. See Hlne Lambert, Building a European Asylum Policy under the First Pillar of the Consolidated Treaty Establishing the European Community, 11 INTL J. REFUGEE L. 32937 (1999). Concluding Observations of the Committee on Economic, Social and Cultural Rights: Italy, U.N. ESCOR, U.N. Doc. E/C.12/1/Add.43 (23 May 2000). See Concluding Observations by the Committee for the Elimination of Racial Discrimination, U.N. Doc. CERD/C/56/misc.20/Rev.4 (23 Mar. 2000). See Concluding Observations of the Committee on Economic, Social and Cultural Rights: Finland, U.N. ESCOR, U.N. Doc. E/C.12/1/Add.8 (5 Dec. 1996). See Concluding Observations of the Committee on the Elimination of Racial Discrimination: Denmark, 23 Mar. 2000, 9, U.N. Doc CERD/C/56/misc.30/Rev.3 (23 Mar. 2000); see also BOUCAUD, supra note 48, at 41.

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Regarding expulsion, European countries are introducing still more restrictive legislation and practice in relation to extraditing non-citizens who have committed a crime. In the case of refugees this area is regulated by Articles 1F and 33(2) of the Refugee Convention, which allows countries to exclude people from protection if they have committed serious crimes. However, in several cases both at the ECHR and the CAT, decisions have been made which stipulate that extradition in these cases would constitute a violation of the prohibition against torture if the individuals would run a risk of being tortured upon their return to the home country. The prohibition against torture is absolute and does not allow any exceptions. Consequently, immigration authorities will have to interpret the exclusion clauses in Articles 1F and 33(2) in the light of the practice of the ECHR and the CAT. Furthermore, Article 8 of the European Convention on Human Rights on the right to private life has, according to the court, offered some protection against expulsion. Dissenting judges have ruled that the extradition cases are a question of discrimination rather than a violation of Article 8.82 This argument is particularly weighty when the person in question has been born and raised in that particular country. Finally, the human rights machinery has also addressed the conflict between the freedom of expression and hate speech. In particular, this conflict has been raised in connection with Norway, Sweden, and Denmark which for historical reasons have a high level of protection of freedom of expression.83 On several occasions, all three countries have been criticized by the CERD for allowing neo-Nazi radios and production of neo-Nazi material. The committee recommended to declare illegal and prohibit any organizations which promotes and incites racial discrimination.84 Furthermore, the committee has criticized Belgium85 and Denmark for not implementing its legislation in this regard. In a specific Danish case the committee stated that due to the failure of the police to continue its investigations, and the final decisions of the prosecutor against which there was no right to appeal, the author was denied any opportunity to establish

82. 83.

84. 85.

See Beldjoudi v. France (1992), available at <http://hudoc.echr.coe.int/Hudoc1doc/ HEJUD/sift/352.txt> (visited 28 Feb. 2002). See Concluding Observations of the Committee on the Elimination of Racial Discrimination: Denmark, U.N. Doc. CERD/C/56/misc.30/rev.3 (23 Mar. 2000); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Norway, U.N. Doc. CERD/C/304/Add. 40 (21 Aug. 1997); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Sweden, U.N. Doc. CERD/C/ 304/Add. 37 (18 Dec. 1997). Concluding Observations of the Committee on the Elimination of Racial Discrimination: Denmark, supra note 83. See Concluding Observations of the Committee on the Elimination of Racial Discrimination: Belgium, U.N. Doc. CERD/C/304/Add. 26, 18 (23 Apr. 1997).

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whether his rights under the Convention has been violated.86 The headmaster of a school had publicly called the author a monkey. This opinion is perceived to be somewhat in contradiction with the Jersild case.87 In that case, Denmark was found to have violated Article 10 of the European Human Rights Convention, which covers the right to freedom of expression. A journalist was sentenced for having interviewed a group of Danish racists, the so-called green-jackets. However, this case was rather an issue of the right of the journalist to edit his material in a balanced manner. No one questioned the fact that the green-jackets had been sentenced for their racist statements. Consequently, the judgment can hardly be used, as has been the case, for not prosecuting on the basis of racist statements.

D. Conclusion In relation to the non-admission policies, the human rights machinery has modified the consequences through the development of substantial case law. Through the application of Article 3 of the European Convention on Human Rights and Article 3 of the UN Convention Against Torture, substantial human rights protection against expulsion to a country where there is a real risk of persecution has been established as a supplement to Article 1A of the 1951 Refugee Convention. In particular, the CAT has contributed to modifying restrictive administrative procedures. Furthermore, the principle established by the case T.I. v. UK, that a country is responsible for a chain reaction when expelling a person,88 may raise serious doubts in relation to many of the readmission agreements established by the EU countries in recent years without providing any guarantees of access to a fair and efficient asylum procedure. This may complicate the implementation of the Schengen and Dublin Convention. Human rights machinery is also playing an increasingly important role with regard to discrimination of asylum seekers and refugees. In particular, the committees established under the UN conventions now more than ever address issues relevant for the protection of refugees. Likewise, the practice developing in the European Court of Human Rights and the treaty bodies has a strong impact on domestic courts. Thus, in the years to come there will be more interaction between domestic courts and treaty bodies interpreting the conventions. The German Federal

86. 87. 88.

See CERD Communication No. 16/1999. Jersild v. Denmark (1994), available at <http://hudoc.echr.coe.int/Hudoc1doc/HEJUD/ sift/476.txt> (visited 28 Feb. 2002); LENE JOHANNESEN, NEW LIMITS, A LEGAL COMMENT ON A CASE ABOUT FREEDOM OF EXPRESSION AND HATE SPEECH (1996). See T.I. v. United Kingdom, supra note 69.

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Constitutional Court has challenged the European Court of Human Rights in a restrictive manner as mentioned above. In a number of cases dealing with expulsion of foreigners who have committed a crime, the Danish Supreme Court has made a liberal interpretation of Article 8. In the years to come it will be interesting to see how these developments will challenge restrictive policies.

V. CONSEQUENCES OF THE LINKAGE BETWEEN REFUGEE PROTECTION AND HUMAN RIGHTS The restrictive European policies in relation to the right to seek asylum and non-discrimination have established a profound human rights jurisprudence linked to the different aspects of refugee protection. It could be said that in a strange way the restrictive policies have helped to anchor or root refugee law as an integral part of human rights law. Whereas in the beginning of the decade, these two legal bodies were seen as two different branches of international law, they are now increasingly merging. The aim of the restrictions introduced in the last decade was to limit the number of asylum seekers and combat illegal immigration. It was realized that this goal could not be attained by individual states, thereby necessitating closer coordination. Instead of establishing an entire new legal regime which would abolish the 1951 Convention, the chosen strategy was to clip its wings and reduce its scope as much as possible through inter-governmental agreements and a battery of EU Resolutions, Recommendations and Conclusions.89 Will human rights be next? Human rights have moved from being highly political instruments during the cold war period to becoming an integral part of the legal instruments applied by domestic and international legal bodies as well as different parts of the state administration. This is particularly true in relation to issues related to refugees and immigrants. Thus, human rights law, as illustrated above, has challenged restrictive legislation and practices. Will there be a similar reaction to this as has been demonstrated in relation to the 1951 Refugee Convention? There are current trends which could be interpreted in a way which indicates a move towards clipping the wings of human rights law. However, it should be underlined that these trends could also be perceived differently in a more positive light. An obvious target would be the international and regional control mechanisms. With regard to the UN treaty bodies in general terms it is

89.

Joly, supra note 36, at 355.

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noteworthy that during a period such as the last decade with a lot of focus on human rights implementation, the most prominent international monitoring mechanisms are still dramatically underfunded. The underfunding is so severe that meetings are canceled due to the inability to fund travel costs for members of the committees. Furthermore, the support staff is very limited in number. There seems to be a general reluctance among EU member states to follow up on the World Conference recommendation with regard to establishing an additional protocol to the Covenant on Economic, Social and Cultural Rights, instituting the right of petition, which would constitute an important protection mechanism for refugees as well as for others. The European Court on Human Rights has been instrumental in creating the human rights refugee protection jurisprudence. The court was restructured in 1998 and some observers have expressed a fear that judges with the new structure will be less independent than under the previous structure. What is of concern is in particular the high salaries combined with the reappointment procedures which do not adequately secure independence from member states. This could in the time to come influence the judgments of the Court. Furthermore, linked to the issue of the court is the creation of an EU Charter for Human Rights. If a new charter vests powers in the European Court of Justice in Luxembourg, there will be competing authorities in Europe in the human rights area. Such a competition could lower the profile of the ECHR to a secondary court after the Luxembourg court, thereby running the risk of causing so much legal uncertainty that the result would be a downgrading of the human rights protection because domestic courts, civil servants and politicians would hesitate to take it seriously. Finally, at the domestic level there is a growing resistence against compliance with international human rights law as interpreted by treaty bodies. In Germany, as mentioned above, the Federal Administrative Court has challenged the ECHR in relation to the issue of non-state actors. The argument is not substantiated very well, and maybe for good reason, because there is nothing in the wording, nothing in the preparatory works to the convention, nor in the early case law that indicates a narrow interpretation. It is actually quite the opposite.90 Furthermore, mainstream politicians and commentators in many European countries are questioning whether national parliaments can decide their own policies or whether they should be subjugated to what they call the human rights tyranny.

90.

See Walter Kealin, Human Rights and Refugees 11 (Nov. 1998) (unpublished paper).

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VI. WHERE TO GO? A conflict is developing between attempting to create a higher human rights profile within the European Union and other intergovernmental fora and at the same time moving towards clipping the wings of human rights as has been done with refugee law. A way forward from avoiding yet another clipping is to consider more clearly the different groups of people arriving in Europe and the different set of legal regulations. The fiction of Europe being a non-immigration area leads to a situation whereby any foreigner seeking to enter the territory violates the nonimmigration policy and thereby, in principle, challenges the overall political strategy in this area. This is illustrated in the policy of fighting trafficking in refugees and immigrants. There is and will continue to be an immigration to Europeand there is even a demand for a certain influx. A European migration policy, based on two pillars, is therefore needed: (1) a humanitarian pillar addressing the needs of refugees, displaced persons and people with a human right to arrive or remain in the specific country (family reunification with refugees and Article 3 persons); and (2) a regular economic immigration and other forms of non-rights based immigration (family reunification, visits, etc.). Such a policy ought to be developed within the EU context. Furthermore, it is important that human rights law and refugee law become more integrated so that refugee protection is perceived as being part of human rights protection. However, the two branches of law should not merge completely, but continue to be separate bodies. The important contribution of the ECHR and the CAT in relation to establishing a jurisprudence in relation to the risk of torture may create an understanding that running a risk of torture is a condition under Article 1A of the 1951 Refugee Convention.91 This could lead to a situation whereby the likelihood of being granted asylum would be smaller than before if the applicant has not been tortured or if (s)he cannot substantiate that there are grounds to believe that (s)he will risk being tortured upon his or her arrival in the home country. Consequently, the human rights approach may end up narrowing the interpretation of the 1951 Convention. The two branches of law should develop their own jurisprudence, however, using each areas interpretations to apply to the other. A European refugee regime could be constructed along these two pairs

91.

See Kjrum, supra note 66, at 1516; see also Guy Goodwin-Gill, Judicial Reasoning and Social Group after Islam and Shah, 11 INTL J. REFUGEE L. 537, 539 (1999) (making the same point regarding the application of the non-discrimination principle in relation to Article 1A of the 1951 Refugee Convention).

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of principles: a policy based on a more open attitude to immigration and a humanitarian leg giving access to persons in need of protection. The other pair would be human rights law and refugee law supplementing each other. This could constitute an important platform for a comprehensive refugee policy offering in the words of Article 28 of UDHR a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized, including the right to seek asylum and the right to be protected against discrimination.92 This would be a different approach than the one indicated by the heads of state in the Da Feira Conclusions. It would be an approach focusing on human needs balanced with state interests as already established decades ago within the framework of human rights and refugee law.

92.

Noll & Vedsted-Hansen, supra note 8, at 363; Asbjrn Eide, Article 28, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD OF ACHIEVEMENT, supra note 3, at 433.