Address to international seminar "Towards a more orderly and managed entry in the EU of persons in need of international protection" by Ms. Erika Feller, Director, Department of International Protection, UNHCR (Rome, 13-14 October 2003)

The Link Between the Agenda for Protection and the European Asylum Agenda - A Global Perspective

Over recent times, UNHCR has been encouraged - and we were not unwilling - to revisit how protection for refugees can best be realised. We have been asked to challenge some basic, traditional assumptions, to explore effective alternatives for how States can "do" protection, even to view the notion of protection differently in a way which gives greater weight to earlier solutions, as the substitute for long periods of dependency in exile. We are being asked to see the opportunities, not only the dangers, of pursuing protection more imaginatively in regions of origin.

UNHCR has been approached on all these scores for good, for realistic and for bad reasons. The good include a genuine concern about the detrimental effects of protracted stay in unsatisfactory and dangerous circumstances of asylum in many countries. They also include the determination to deal more resolutely with the profiteers on human misery. And they reflect commitment to give more meaningful content to the notion of burden sharing. As for the realism, clearly the costs of hosting many thousands of refugees, just as the costs of running lengthy and increasingly overburdened asylum systems, can become very high. The difficulties associated with managing mixed arrivals of refugees and would be immigrants also call for responses tempered by realism. Amongst the bad reasons, I would include extremist and alarmist politics, xenophobic sentiments, irresponsible journalism and plain ignorance. I would also have to add a blinkered view of the international dimension of refugee problems and a disinclination on the part of some governments to give international law and human rights imperatives their proper place in the process of weighing a country's national interests.

UNHCR is understanding of the positive reasons and aware of the realities at stake, but it is also determined to counter the negative trends. We have been prepared to revisit how protection responsibilities can be approached, by ourselves and by States. The Global Consultations were in part about this. The Agenda for Protection has important new directions in this regard. One such direction has now been elaborated by the High Commissioner into his "Convention Plus" initiative. This is about exploring more strategic use of the resettlement solution, targeted use of development aid to underpin asylum and return, and methodologies to manage the unwarranted secondary movement of refugees. Comprehensive Plans of Action to resolve specific, protracted situations are one anticipated outcome. UNHCR's three-pronged proposal, in response not least but not only to ideas put recently on the table by the UK government, should also be understood in this light.

All this is to say that UNHCR appreciates the need for new thinking, and indeed new actions. This is not to say, however, that the basics should in any way be tampered with, much less abandoned. Our mandate is to ensure refugees have access to effective protection in the countries to which they flee, as well as to one of the three solutions of voluntary repatriation, resettlement or local integration. Effective protection depends quite significantly on the 1951 Convention and its 1967 Protocol continuing to serve as the fundamental basis for protection systems, old and new, and being implemented ever more resolutely.

This, Mr Chairman, is by way of introduction, to set into their proper context our views and concerns in Europe. The context is one of eagerness to explore new ways of thinking and doing protection, but determination also not to obscure the clarity of the protection objectives to be pursued, nor make them that much more difficult to realise by damaging or sidelining the basic principles at stake.

The interface between the global and European dimensions - Agenda for Protection linkages

European countries are key players at the global level from our perspective. Refugee protection is human rights protection, albeit for a particular group. Europe has an important human rights tradition and active commitment to rights promotion and protection, which makes countries in this regard both our strong allies and our partners.

Hence, UNHCR not only sees itself as a partner in the search for solutions to the many refugee challenges in the world at large, but also in the development of an effective comprehensive EU asylum and migration strategy. There is now, in our view, a very constructive ongoing dialogue between EU Member States and UNHCR not least within the framework of EU harmonisation.

Current developments with EU harmonisation and its asylum and migration agenda are of direct relevance to the implementation of the Agenda for Protection. As you know, the Agenda for Protection derives from the two-year Global Consultations on International Protection, in which the EU Presidency, Member States and the Commission played an active and constructive role. The Agenda is not directed at UNHCR alone. Its implementation depends on close co-operation among States, UNHCR, the NGO community and other players with a stake in refugee protection. Among the Agenda's key goals are to strengthen implementation of the international legal framework for the protection of refugees as well as to reduce misuse of asylum channels.

Given the substantial contribution of the EU to the Global Consultations process, it is no surprise that the EU's asylum harmonisation process broadly coloured the goals and objectives of the Agenda for Protection. Your regional agenda has therefore contributed to the formulation of a global agenda on refugees. Decisions taken in Brussels have considerable "export value" beyond Europe's borders.

Many of the activities contained both in the Agenda for Protection, just as for the EU's programme in the field of asylum and migration, require the building of cross-regional consensus and co-operation. For this reason, pursuant to the Agenda for Protection, the High Commissioner launched a new Forum for his Convention Plus initiative to enable the development of tools, inter alia, in the form of multilateral special agreements, which both build on the 1951 Convention and complement it.

In this spirit, I suggest that there is considerable potential for constructive synergy between the global and European asylum policy initiatives. The interlinkages are clearly evident, and have been recognised by the European Commission in its welcome communication on the matter issued in March 2003. This document rightly identifies the Agenda implementation and EU harmonisation as "mutually boosting" and views the success of the Agenda as depending "heavily on Europe's ambition as regards its common asylum policy and the results it generates". I would add the converse, that the extent to which the EU successfully engages with and implements the Agenda will directly enhance the development of the common European asylum system.

This interface was clearly evident at the Thessaloniki summit in June. It certainly contributed to the summit conclusion that further discussions on more orderly and managed entry to the EU of those in need of international protection and on enhancing protection capacity of regions of origin should be carried out in full partnership with UNHCR and the countries concerned.

The harmonization process

UNHCR readily embraced, the EU asylum harmonisation process from the outset, as the most promising effort for strengthening refugee protection not only in Europe, but globally. Over the last years, we have worked assiduously with Member States and the European Commission to contribute to the successful development of harmonised European asylum policies which could result in a clear distinction between refugee protection imperatives and migration control priorities; ensure fair treatment of all in need of international protection; and establish workable mechanisms for equitable sharing of asylum responsibilities, both within the European Union and between the Union and other regions.

Efforts to harmonise asylum policies and address migration problems more generally are already having wide-ranging consequences. These are not only in existing Member States but also in the ten countries set to join the EU in a few months time, and indeed more broadly. Decisions taken in Brussels on asylum and migration policy and standards have considerable "export value", as other States look increasingly to Europe in their own efforts to develop their asylum systems. A recent example is the comparative study currently being undertaken by UNHCR with EU funding. This examines asylum procedures in nine European States to assist Turkey, as an aspiring EU Member State, with the strengthening of its own asylum regime. The study draws on examples of best practice in Europe to assist this process.

We have also been supportive of harmonised approaches to tackling irregular migration, human smuggling and trafficking. UNHCR's prime objective in engaging in broader migration issues has been, and remains, the need to ensure that legitimate immigration control measures provide for the required exception in respect of refugees to gain access to territory and to asylum procedures. In this respect, we remain particularly concerned that asylum issues have become an increasingly negative element in political and public debate around the highly contentious issue of migration. This, we believe, has made it all the more difficult to move the procedural and substantive harmonisation of asylum policies towards higher standards of refugee protection.

A brief word perhaps on specific aspects of the harmonisation process itself. Agreement on the building blocks of the common European asylum system is now nearing completion. UNHCR welcomed the Tampere summit's commitment to the full and inclusive application of the 1951 Convention and human rights principles as a frame for developing common standards. Indeed, the process represents an important factor contributing to the realisation of the Agenda's objective of a more harmonised interpretation of the 1951 Convention (goal 1, objective 6). Among the issues on which agreement has been reached are those on the Refugee Fund, temporary protection, reception conditions, family reunification, and "Dublin II". The results so far have broadly been positive. Certain key instruments remain to be agreed before the target date for approval of outstanding measures in May 2004.

As a unique and precedent-setting effort, the standards set are crucial. There is now a growing preoccupation, as the deadline approaches and political pressure increases, that final negotiations are tending to reinforce restrictive measures and result in the inclusion of too many exceptions, which permit national variations of practice to continue. Two Directives are key building blocks of the common European asylum system and are still in the pipeline. They concern matters at the heart of the Agenda for Protection. I would like to mention them briefly, in a constructive spirit, in the hope of better informing policy development in a protection-focused manner.

The first of these two draft Directives is that on asylum procedures. It is a central component of the emerging legal framework and is potentially key to realising the Agenda's objective of improving individual asylum procedures - both in Europe and, because of its model role, further afield (goal 1, objective 2). As it currently stands, however, the draft largely contains optional provisions, exceptions and even derogations, including to long-standing principles of law. In particular, the safe third country provisions are a worrying departure from hitherto agreed standards. They do not provide for any possibility of individual review before return to such a country and they extend the application of the concept to countries with which the applicant does not necessarily have any links and which he or she may not even have transited. Should such issues not be addressed, there is indeed concern that this Directive may not fully respect international refugee protection standards.

The second major outstanding draft is the qualification Directive. UNHCR welcomes efforts being made towards an inclusive interpretation of the refugee definition. The Office continues, however, to have concerns, which have been outlined on various occasions in the past.

We understand that the intent in drafting the Directive is to keep in a proper and manageable balance the numbers of persons making a valid claim to international protection. In UNHCR's view the proper apportionment of responsibility is a fair and understandable aim. Where we perhaps differ is on the approach most likely to achieve this objective. Trying to restrict the scope of application of the refugee definition or to define away certain deserving cases is no solution to the problems of asylum abuse. Those problems have their origin in i.a the composite ("mixed") nature of contemporary migratory movements, lengthy and complicated asylum procedures, and various obstacles to implementing an effective return policy. Such problems need to be addressed by improving the management of both migration and asylum systems, each with their own tools and mechanisms, rather than by restricting the application of agreed refugee law principles. As with the procedures Directive, it remains essential that political considerations in the final negotiations do not undermine hard-won harmonisation on key issues such as that of non-State agents.

Potential for further interlinkage between the European and global processes

Let me now turn more specifically to subjects for analysis at this seminar: effective protection and capacity building in regions of origin. Again, my starting point is that there is real potential for further interlinkages between the global and EU processes.

Effective protection

Ensuring refugees are able to enjoy effective protection in their country of asylum lies at the centre of multilateral cooperative efforts to address asylum challenges. There are three dimensions here: the policy, the legal and the practical one. With regard to the first dimension, the Global Consultations have served to identify the policy challenges confronting realisation of genuine protection possibilities. These are now well articulated in the Agenda for Protection.

As to the legal dimension, expert participants at a roundtable on effective protection, which UNHCR organised in Lisbon in December 2002, found some common ground on the benchmarks to determine when refugees and asylum-seekers can be deemed to have found protection and should therefore not move on in an irregular manner. Granted they are not minimalistic standards; they are nevertheless also not the maximum one could go for. They can, in our view, usefully inform the discussions at this meeting. They are available to participants.

In terms of the practical dimension, we are now finalising the contours of a project, built around a "protection gaps" analysis in selected States, to test how accurate a picture these Lisbon benchmarks offer, at any one time, of the protection realities on the ground. This project will be part of the High Commissioner's Convention Plus initiative. We believe that the objectives of the project, which include allowing clearer mapping of capacity building for protection in regions of origin, link directly with ambitions being pursued by EU countries striving for more orderly management of asylum problems. We are hopeful of a close working relationship with EU countries on that project.

Capacity building in regions of origin

The EU's recent focus on capacity building in regions of origin is a welcome one. EU countries have particular expertise here, acquired not least in the context of assisting the building up of asylum systems in central and eastern Europe. This latter represents a good model for global capacity building efforts. It is important that capacity building in host countries be driven by a desire to secure effective protection. Benefits in terms of reducing onward movement are auxiliary. Put another way, in our experience, burden and responsibility sharing is key, while attempts to shift burdens and responsibilities are neither appropriate nor ultimately successful.

It was in this spirit that we entered into a dialogue on the by now very well known "British proposal." You may be aware of UNHCR's 3-pronged counter proposal. It in no way embraced many of the details of the UK suggestions. We did accept that building the capacity of host countries in regions of origin was - as we have always said, and as the Agenda for Protection recognises - fundamental for improving available protection possibilities. We rejected, though, any notions of offering protection in zones, as had been proposed. We also said capacity building was a burden-sharing mechanism, and a complement, NOT a substitute for domestic asylum systems in EU countries and elsewhere, which had to be improved in tandem. We also did support some common processing of part of the arrivals caseload, but inside Europe, not outside, as a test case, if you like, for the eventual common asylum system. I could say a lot more on this but time eludes me. Suffice to say there were, and remain, very significant differences between the two sets of proposals.

I come now to the twin issues of protected entry procedures and resettlement. Both have been the subject of detailed research, as is evidenced by the studies we have in front of us today. I would like to commend the authors on their thorough and valuable work. Our debate should help kick start examination of the many practical details that need to be addressed.

Protected entry procedures

Various schemes exist in Europe and elsewhere, or are being proposed, to process claims for asylum beyond national borders. These provide for the claim being assessed either on a preliminary or a final basis. In principle, we see potential in such processes even if, as with all things, there are also pitfalls. Where the schemes improve access to protection, which is a main objective of the Agenda for Protection (goal 2, objective 1), or where they help balance migration control measures through alternative protection possibilities and reinforced resettlement, they may indeed become useful tools. We would see them as complementing more traditional mechanisms for accessing, asylum, not substituting for these.

In order to balance the imposition of visa requirements in relation to refugee-producing countries, for instance, one could imagine a situation where humanitarian entry visas are introduced, for issue abroad, to enable certain vulnerable individuals or groups from within a visa-targeted population to enter for protection reasons. These could be complemented by financial or in kind assistance to neighbouring countries in the region of origin, to help them with the process of assessing asylum claims. Enlarged resettlement opportunities for individuals or groups of refugees unable, because of their particular situation, to secure durable solutions in the region of origin should also be built in plans of action which include protected entry arrangements, such as sponsorship schemes, or regional nodes.

It would be interesting to hear from those European countries actually practising special entry arrangements about why they are scaling them down. Perhaps rather than going too far down this track, and then having to reinvent such procedures, it would be more beneficial to explore how to link them with the renewed global interest in resettlement. It could be productive to examine the potential for harmonised entry procedures, integrated into the effort to enhance resettlement programmes in Europe. Maybe they could serve one resettlement entry objective, amongst the others foreseen for them.

As these possibilities are examined, care of course needs to be taken that any such initiative should complement and not substitute for access to domestic asylum procedures. There are also practical issues to address: how, for example, to ensure that those in need of international protection can physically access embassies and consulates in regions of origin, and how also to ensure that their staff have the requisite expertise and authority to take the proper decisions. One has to reflect also on how such procedures might affect developing asylum systems in regions of origin. It would be unfortunate if such procedures served to undermine developing protection strategies there.

In short, UNHCR welcomes proposals which seek to improve access to protection within the EU without adversely affecting existing asylum systems. UNHCR is interested in further discussions on how to ensure complementarity between the laudable objectives of improving protection in regions of origin, of enlarging resettlement possibilities, and setting up a scheme of humanitarian visas. We believe that progress on all these three fronts would go a good way to improving the effectiveness of protection closer to the source of the need.

Resettlement

This brings me to the question of resettlement. UNHCR is appreciative of the valuable resettlement programmes maintained in Europe by Denmark, Finland, Iceland, Ireland, the Netherlands, Norway and Sweden. We also welcome the recent UK commitment to offer resettlement places which has begun with a pilot scheme to resettle West African refugees. There is still scope for further development of this solutions option in Europe, both in terms of the number of States involved, as well as cooperation at EU level to establish a more coherent and consistent approach.

A coordinated EU initiative on resettlement could give added impetus to global efforts to make more strategic use of resettlement. It has for some time been approached mainly as a response in individual cases to address a protection problem in a country of asylum. Consistent with calls in the Agenda for Protection, we want to see it used more imaginatively as a solution for larger groups in protracted refugee situations, as well as a positive manifestation of burden sharing, to promote more generous and just asylum policies. How to realise this potential of resettlement - given resource constraints not least - is one of our more important challenges.

With these goals in mind, we would encourage your examination of:

• how an EU-wide resettlement system might work;

• the individuals and/or groups such a system should benefit, including prima facie and Mandate refugees, bearing in mind the narrow Convention-tied criteria which currently govern this solution;

• the resources needed to enhance referral capacity in a manner which does not lead to groups without the necessary expertise, or protection orientation, taking on too pivotal a role here;

• the role of Convention Plus in enhancing cooperation of EU States with other resettlement countries and regions of origin given that the matter is already the subject of an ongoing Convention Plus initiative;

• coordination, communication and reporting structures to ensure integrity and transparency of this, the most fraud-prone solution;

• frameworks and systematised procedures - what I have called "resettlement entry procedures" - to process groups as well as individuals for resettlement, which address the question of integration potential; and

• emergency resettlement procedures and mechanisms.

Conclusion

In conclusion, Mr Chairman, it is a cliché that we live in a troubled and turbulent world, with war, conflict or persecution of peoples for reasons of ethnicity or politics in countries on all continents. We also live in a world of mobile populations where the impetus to migrate has its roots in a myriad of social, economic, political and human rights push and pull factors. Mobility cannot be obstructed. The odds are against this, including the prevalence of smuggling and trafficking. As far as refugees are concerned, obstruction, which denies refugees their basic security and safety, is not only not possible but also not permitted under international law. The challenge is not to prevent movement but to better manage the many sensitive issues at stake, including national security and identity, social harmony, and economic progress in a manner which protects State interests and individual rights, promotes a proper sharing of responsibilities, and maximizes the benefits migration of all sorts can bring to host societies.

Against this backdrop, we would recommend European governments seek to integrate the policy making discussions in which they participated in the Global Consultations even more closely into the regional harmonisation process. Certainly there are diverse and complex challenges on this continent, but numbers of asylum applications are falling in Europe and durable solutions are being implemented in a number of longstanding refugee situations from Afghanistan to Angola. It is important that politicians are not driven by old or exaggerated fears and that policy making does not react in a delayed fashion but capitalises on the positive trends and builds on multilateral initiatives under way.

In a recent presentation, the UN Secretary-General characterised our age as an "age of problems without passports". He termed a false choice that between multilateralism and unilateralism. Rather, he suggested, the choice is better characterised as between cooperation and catastrophe. The Agenda for Protection and Convention Plus provide a valuable framework for collective international cooperation, in a manner which brings together actors on both sides of the burden-sharing equation. In our view, it is through multilateral collaboration not only regionally but globally that we stand the best chance of managing those common problems - and here I count refugee and migration problems as among the chief ones - which do not respect national boundaries or entry requirements.