UNHCR Position on Conventions Recently Concluded in Europe (Dublin and Schengen Conventions)

3 European Series 2, p. 385

Europe has traditionally enjoyed a liberal refugee and asylum policy through most of the twentieth century. The large influx of refugees and migrants fleeing to Europe since the 1980s has, however, over-burdened governments, prompted some xenophobia within the European populations and caused governments to resort to, inter alia, immigration measures to stem the flow of those requesting asylum. Against this backdrop and in anticipation of the 1992 establishment of Europe without internal borders, two multi-State conventions have been signed which should become effective in 1992.

The Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities, commonly referred to as the "Dublin Convention," addresses which country is responsible for considering an asylum claim. The Convention on the Application of the Schengen Agreement of 14 June 1985 Relating to the Gradual Suppression of Controls at Common Frontiers, commonly referred to as the "Schengen Convention", deals more broadly with border controls in addition to refugee and asylum issues, such as drug trafficking. Both these instruments (together, "Conventions") represent commendable efforts to share and allocate the burden of review of refugee and asylum claims, and to establish effective arrangements by which claims can be heard.

These regional Conventions reflect the parties' recognition that the protection of refugees, the elimination of the problem of "refugees in orbit" and the reduction in multiple or unfounded claims are international concerns which should be addressed among States, particularly those geographically proximate and whose asylum procedures are similar. UNHCR considers such cooperation to be one of the very "measures calculated to improve the situation of refugees and to reduce the number requiring protection." UNHCR Stat., para. 8(a),(b).

Large numbers of unfounded claims, compounded by multiple claims of asylum-seekers in several States, have taxed States' immigration resources and contributed to a backlog in the consideration of claims. This is undesirable from the point of view of refugee protection and UNHCR appreciates that one intent of the Conventions is to guarantee prompt review of claims, in accordance with the applicable international instruments, and assign clear responsibility for protection and return of those claimants deemed not to be refugees.

This effort is consistent with recommendations already articulated by the Executive Committee, for example in its 1979 Conclusion No. 15(Refugees without an Asylum Country). In this Conclusion, the Executive Committee called upon States to consider criteria by which States could agree as to which State would be responsible for examining an asylum request, and agreements providing for the return by States of persons who have entered into their territory from another State. Such provisions, was noted, should ensure review of claims, reduce multiple claims, and minimize the creation of "refugees in orbit."

Executive Committee Conclusion No. 15 also called upon States to facilitate, in the interest of family reunification and for humanitarian reasons, the admission to their territory of family members of persons to whom refugee status or asylum has been granted. UNHCR appreciates the inclusion of provisions in the conventions affording States the flexibility to admit family members and, for humanitarian reasons, such other persons as the States deem appropriate. UNHCR hopes that in their implementation of these provisions States take into account the call of the Executive Committee in its 1981 Conclusion No. 24¯ (Family Reunification) to States "to apply liberal criteria in identifying those family members who can be admitted with a view to promoting a comprehensive reunification of the family." In addition, consistent with the recognition that there will be humanitarian reasons which will cause States to be flexible on entry, UNHCR recommends that these reasons be understood to include considerations of language, education and former association.

UNHCR welcomes the reaffirmation, in both Conventions of the obligations of parties under the, 1951 Convention and the 1967 Protocol, and understands that, these instruments, as expressions of preeminent international law, should provide guidance and direction for the implementation of the regional Conventions. The fundamental protection of the '51 Convention is that of non-refoulement. States are, "jointly and severally" responsible for the application of this principle so as to do everything in their power to avoid asylum-seekers being, returned to their countries of origin without an exhaustive examination of their claims.

UNHCR also welcomes the recognition in the Dublin Convention of the value and indeed necessity of continued cooperation and coordination with UNHCR. In light of its experience and its charge under its mandate to provide protection to refugees and supervise the application of international agreements, UNHCR believes it can play a valuable role in relation to implementation of these Conventions, including through facilitating dialogue among States and working with States towards harmonization of internal asylum procedures UNHCR could also be of assistance in the exchange and dissemination of legal and country of origin information informed decisions in refugee status determination procedures and effective protection of persons in need depend on clear, accurate and current information, regarding the situations of countries of origin. The dissemination of country of origin information already available in the public domain is an urgent need. UNHCR's role as collector and a potential provider of such information is currently under active consideration. UNHCR has already been working on an ad hoc basis with States to expand its own information base and that of States in this regard.

This being said, UNHCR emphasizes that the States parties to the conventions, themselves, remain responsible for daily implementation by their own services of the Conventions. Refugee status determination, removal to third countries, securing necessary guarantees of "Safety", and such other obligations contemplated by Articles 11, 13, and 15 of the Dublin Convention are basic State responsibilities.

Against this background, UNHCR hopes that means will be found to associate it appropriately with the mechanisms or committees envisaged in the respective instruments to monitor their implementation.

In addition to the above general comments, UNHCR would like to make the following related observations.

Re: Harmonization of Refugee Status Procedures and Practices

The Conventions provisions setting out criteria by which States assume or deny responsibility for review of refugee status or asylum claims should reduce the multiplicity of claims, ensure that claims are considered promptly and fairly, and provide for the protection of an individual not permitted to remain in a State which does not accept responsibility for determination of refugee status. However, the significant differences among States' procedures governing asylum and refugee status determinations such as initial hearing procedures, appeals, conditions for stay, deportation, border controls and criteria for granting status may perpetuate some of the very problems both Conventions sought to solve.

In the absence of harmonization of procedures, differences both in procedures and in standards for admission may permit exploitation of the current imbalance in the refugee and asylum burden of States. Furthermore, strict assignment of responsibilities on the basis of which State authorized entry could lead to rejection of individual claims which, in another State party, might have been recognized. Presumably, pursuant to Article 3, paragraph 4, each State party is free to examine any, claim, even a claim previously rejected by another State.

UNHCR can assist States in developing and promoting harmonized standards of application (e.g., to whom the standards apply, which are countries of reception or responsibility), standards of treatment (e.g., how the standards apply and when), standards of implementation and supervision (e.g. , definitions, treatment of asylum-seekers, cooperation in the processes of identification, return, country of origin determination, readmission, determination of claims, solutions and repatriation). Through its branch and regional offices, and especially with financial underwriting from recipient States, UNHCR can be an active presence in assisting countries of origin to prepare conditions to permit repatriation, or return of non-refugees.

Harmonization of the interpretation of the Dublin and Schengen Conventions with each other and other international instruments is also an interest of UNHCR. Since the Conventions provisions for informal consultation between States should not be a substitute for adherence to international obligations (non-refoulement, etc.) UNHCR has a role to play in assisting States to achieve consistency and complementarity between the requirements of regional and of international refugee instruments.

Re: Visas and Carrier Sanctions

Both Conventions take as their starting point for assigning responsibilities the fact of authorization of entry. The State which provided the entry authorization a fact determinable in accordance with a hierarchy of explicit rules is normally the State which must accept responsibility for considering the application. There is clearly a logic in this approach, but UNHCR is concerned where the emphasis on this "authorization principle" has the effect of causing States to strengthen even further both their entry requirements (visa arrangements), and their mechanisms to enforce these requirements (airline sanctions).

Asylum-seekers who are refugees are by definition persons whose flight from their country of origin is typically marked by the unwillingness or inability of their governments to provide them with protection from persecution. Often the persecutor feared is the national authorities from whom a refugee may not safely be able to obtain a valid passport, necessary to obtain a visa to enter another country. Visa prerequisites such as the possession of an address in the country of refuge, monetary sums, a return air ticket or family ties are prerequisites a refugee will very often have, difficulty meeting. For some refugees, the very real dangers attendant in even approaching governmental authorities for visas hinder considerably their search for protection

States are increasingly enacting and enforcing visa requirements through airline personnel. Although carrier sanctions are not necessarily contrary to international law, UNHCR is particularly concerned about the imposition of carrier sanctions and strict visa requirements which do not distinguish asylum seekers from other aliens.

In symbiotic relation to visa requirements are the documentation review obligations States in effect impose upon carriers. Forcing carriers to verify visas and other travel documentation helps to shift the burden of determining the need for protection to those whose motivation is to avoid monetary penalties on their corporate employer, rather than to provide protection to individuals. In so doing, it contributes to placing this very important responsibility in the hands of those (a) unauthorized to make asylum determinations on behalf of States (b) thoroughly untrained in the nuances and procedures of refugee and asylum principles, and (c) motivated by economic rather than humanitarian considerations. Inquiry into whether the absence of valid documentation may evidence the need for immediate protection of the traveller is never reached.

UNHCR believes that the concerns which States attempt to address through carrier sanctions and visas can be better addressed through the careful harmonization of standards of application, treatment and implementation. Timely consideration of claims by trained and authorized personnel who have the authority to exercise humanitarian discretion urged in the Conventions, along with coordinated standards of return and deportation, serve the same ends of preventing unfounded claims, but do not foreclose the chance to request protection t to those in true need of it. As recognized by the Executive Committee in its 1983 Conclusion No. 30¯ (The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum), the problem of large numbers of applications for refugee status can be mitigated by the allocation of sufficient resources to the determination of refugee status processes to shorten the appeal time.

Recognizing nonetheless that carrier sanctions are unlikely to be revoked in the immediate future, UNHCR urges States to enforce such sanctions only in the event that carriers demonstrate negligence in checking documents and knowingly and willingly bring into the States aliens who do not possess valid entry documents and who do not leave their countries of origin due to a well-founded the burden of proof falls more fear of persecution. In this posture, the burden of proof falls more appropriately upon the shoulders of the States in recognition of the fact that States, not carrier personnel, have the training and appropriate motivation to identify those with well-founded claims for refuge and asylum.

This standard is consistent with and underscores the flexibility in the Conventions expressly given to States to admit persons, even in the absence of proper documentation, for humanitarian reasons. Here it should be noted that carrier personnel are neither qualified, nor so inclined in light of penalties, to permit transport of those to whom the State might otherwise extend protection for humanitarian reasons.

Re: Sharing of Information

UNHCR welcomes the willingness of States to share with each other and with UNHCR statistical information and data concerning refugee trends, and is appreciative of States' recognition that information concerning specific refugee, and asylum claimants requires confidential treatment. The sharing of such general information may aid protection in enhancing the capability to foresee refugee trends and issues, as well as assist countries in achieving their burden-sharing goals.

However, because of the possibility of misuse of confidential information, for example by countries of origin to engage in retaliatory measures or punitive treatment of refugees, asylum-seekers or their family members, UNHCR hopes that States adopt effective measures by which such information is afforded every safeguard. Current Convention provisions refer to procedures by which an applicant for asylum may be able to have the receiving country correct or erase information he or she believes should not have been forwarded to that country. UNHCR urges the adoption of measures by which potentially damaging transfers of information can also be preempted, not only remedied after the event. In light of the ability by computer to copy or transfer with ease large quantities of information, States should further ensure that access to such information is strictly controlled and that the approval of the transfer of information potentially identifying a claimant or refugee is made by qualified personnel, sensitive to the inherent dangers of information-sharing. UNHCR welcomes the Conventions' requirement that the exchange of information by computer take place only among countries that are party to the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.