Keynote address by Ms. Erika Feller, Director, Department of International Protection, UNHCR, to the Regional Conference on Current Issues of Border Co-Operation, Asylum Management and Responsibility Sharing (Prague, 7-8 April 2003)

INTRODUCTION

Mr. Chairman,

Let me join you in extending my thanks to the Government of the Czech Republic for having agreed to organise with us this Conference to review how we are progressing with implementing the conclusions adopted at the Global Consultations Conference held in Budapest in 2001. I have been asked to offer some reflection on the issues of asylum management, on cooperation and responsibility sharing, and on possible mechanisms in this regard. They are the themes of this regional conference. We share your view of their importance and we are committed to making our contribution to realise them as outcomes of our joint efforts.

We live in a troubled world. We are meeting against the background of war in Iraq, turbulence and conflict in many parts of Africa and Asia, as well as persecution of peoples for reasons of ethnicity or politics in countries of all continents. We also live in a world whose population is increasingly mobile, where horizons are ever broader and where the impetus to migrate somewhere else has its roots in a myriad of social, economic, political and human rights push and pull factors.

Conflict, lack of social progress, economic under privilege and sharp divisions between the "haves" and the "have nots" will variously continue to push Iraqis, Afghans, Sri Lankans, Somalis, Liberians, Chechens, Montagnards and Rohingyas towards and across the borders of other countries. And these countries will not only be the big migrant takers. They will also include countries with economies in transition, countries on transit routes to those of chosen destination, all countries where chances are there to be taken and prospects look better. 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 maximises the benefits migration of all sorts can bring to host societies.

In UNHCR's estimate, there were some important directions set in train in Budapest. The focus there was clearly on promoting inter-state cooperation and readmission of nationals or third country nationals, as well as on responsibility sharing in the area of asylum. Let me draw particular attention here to conclusions 14 and 9 of that meeting, the texts of which I here repeat:

Clarification of State responsibilities "is best achieved through the establishment of multilateral coordinated approaches to the allocation of State responsibility for determining refugee status, preferably in the form of binding agreements. Such agreements, involving regional groupings of concerned countries, would both allocate responsibility for determining refugee status and have elements of burden-sharing, taking into account the relative capacities of the concerned states." (Conclusion 14)

With regard to return of persons not in need of international protection, the meeting concluded that "solutions ... can best be reached through frank and open dialogue among countries of origin, destination and transit. To be successful, this dialogue must encompass a variety of issues and address the respective interests of all relevant parties. Political will is best nurtured through a multifaceted approach, in a multilateral setting." (Conclusion 9)

I have drawn particular attention to these two conclusions because I will be focusing my comments this morning on initiatives underway, including on UNHCR's part, directed at promoting dialogue multilaterally, leading to such agreements that have some binding force.

First, though, a word on the atmospherics of the asylum debate, within which these arrangements have to be crafted and of which they have to take careful account. UNHCR has been particularly concerned, over recent times, about the many prevailing myths about the so-called asylum threat, which have fed on the post September 11 fallout and been fuelled in certain countries by an irresponsible press and a resurgence of extreme right wing politics.

FEARS VS. REALITIES - THE ASYLUM / MIGRATION DILEMMA

The problem with the dialogue on asylum today, not least in Europe, is that there is often too much emotion and not enough reason involved. Facts are distorted by fears. Let us look at both:

FEAR: Countries, including in Europe, are being overrun by asylum seekers.

FACT: In fact, the global refugee population, which stands at an estimated 12 million people, has remained unchanged between 1997 and 2001. Compared to the early 1990s, the total refugee arrivals have actually declined. Calculated per capita, there are very few European countries among the main host countries of refugees globally.

FEAR: Most of those claiming asylum today are bogus.

FACT: Over the last decade, some 17% of all asylum seekers arriving in industrialised countries were found to be in need of international protection and granted 1951 Convention refugee status. A similar percentage of the total number of applicants have been granted permits to remain due to humanitarian or other reasons. Thus a significant portion of the total group making claims on asylum systems in destination countries, are in fact bona fide, and in need of asylum.

FEAR: Asylum is a convenient door through which criminals can pass. It offers a safe haven for terrorists.

FACT: The Convention calls upon states parties to look at issues of status and to recognise as refugees only those who are not excluded as non deserving and whose plight so justifies. It also requires that they be accorded certain benefits for as long as they are on the territory of the state, but also for as long as they do not render themselves ineligible for these benefits. Terrorists are ineligible for refugee status and asylum under the Convention. Persons who constitute a danger to public order or national security can be removed from asylum countries within the terms of the Convention.

ALLEGATION: It is the 1951 Convention which is the root of all ills in the asylum dynamics of today and it has outlived its usefulness and should be scrapped.

FACT: Ministers from 144 states, party to the Convention, including from countries in this room, disagree and said as much at a ministerial conference in Geneva in December 2001. The Convention as such is not the problem. Brutality, disregard of basic rights, discrimination, exclusion or conflict are features of everyday life in quite a number of countries. People are victimised for all these reasons. They need and rightly seek protection. The 1951 Convention was drafted in recognition of this fact, with the purpose of identifying the basic rights jeopardised by persecution and conferring an entitlement to their protection on persons made otherwise exceptionally vulnerable through being temporarily outside the normal framework of national state protection. It is difficult to imagine that the right not to be sent back to be killed can be contested by any right thinking person. Similarly, non-discrimination, the right to be heard and access to fair and due process of law are tenets on which democratic societies are solidly built.

THE BASIS: THE 1951 CONVENTION

The Convention gave a voice and force to the rights for refugees. It does not, though, say how states should put it into practice. There are procedures and procedures in this regard. In UNHCR's experience the problematic of the Convention is not a textual one, but a procedural one. Over the years the processes in place in many states have become cumbersome, expensive, protracted and have served as an incentive to certain would-be migrants to try their hand through the asylum process. UNHCR's Global Consultations process - of which this Conference is a natural offshoot - was in part about understanding not only the strengths but also the gaps in the Convention and about setting in train efforts responsibly to fill those gaps, to ensure better management of asylum and clearer, more equitable burden sharing in this regard.

The Consultations - and indeed the resulting Agenda for Protection - recognised that, just as causes and notions of safety condition the process of determining what protection is required, burdens and best solutions must be allowed to condition the protection which is given, and by whom. The delivery of effective protection is first and foremost a State responsibility, even if one which in practice invariably involves a range of actors, including UNHCR, other international organisations, and international and national non-governmental organisations, working in close co-operation with States. When is a state, party to the Convention, THE responsible state when it comes to providing asylum? The Convention is based on international solidarity, or the notion that states should address refugee problems collectively, sharing resulting burdens. One difficulty is that there are no agreed indicators, much less formulae, for predictable burden sharing.

UNHCR is now actively engaged with States, particularly but not only in Europe, in examining this issue of who is responsible, for whom, when, and against what indicators, in accordance with what arrangements. The groundwork for this has been laid through our process of Global Consultations on International Protection and its internationally agreed action plan - the Agenda for Protection. In part implementation of the Agenda, the High Commissioner for Refugees some months ago launched his "Convention Plus" initiative. As he explained to the recent informal meeting of the EU Justice and Home Affairs Ministers, the application of the Convention involves much more than properly functioning asylum systems in Europe. It means effective international protection and solutions for refugees everywhere.

The Convention Plus initiative, of which you shall hear more at a later session, is fundamentally about burden sharing and responsibility sharing, which are different but related concepts. It is about encouraging both among European countries and globally between matured economies and the developing world. Strengthening protection capacities, better targeting development assistance and improving access to and the timeliness of all 3 solutions for refugees (repatriation, resettlement and local integration) are all part of the objectives of the initiative. Special multilateral agreements in the form of Comprehensive Plans of Action to address, variously, both refugee situations and the more generic protection dilemmas are the anticipated outcome.

As you will have observed, going back to the conclusions of Budapest, and particularly the two I mentioned earlier, there is a clear compatibility with the Convention Plus concept. It could even be said that participants at the Budapest Conference gave early voice to ideas which found their place in the Agenda for Protection, and were later to mature into the Convention Plus initiative.

Turning now to how this all relates to your part of Europe and this Conference's themes:

REFUGEE PROTECTION IN A CHANGING EUROPE

The countries of central, eastern and south-eastern Europe have gone through a period of significant change over the last decade - geopolitically, economically, and indeed in terms also of social composition. Migration and asylum trends have had their impact.

The region is experiencing significant migratory flows - including of refugees and asylum seekers - most but not all of whom are seeking to transit through and on to EU member states. The region has evolved from comprising mainly countries of origin into a key transit route for movements towards western Europe. In recent years, some countries have also become destination countries in their own right. It is only reasonable, moreover, to expect this trend to continue.

By 2004, the EU will have dramatically expanded. Its external border will move towards the east and south-east, changing not only the geopolitical scenery, but also shifting the entry points to the EU towards the east and the south-east. This impending enlargement will no doubt have a significant impact on refugee protection, not only within the existing EU and the new Member States, but also as regards the states aligned on the new outer border of the EU.

UNHCR appreciates that all these developments will place added strains on the region. I emphasise the notion of region because it is our understanding that increasingly countries will have to pull together and commit to more coordinated approaches which, to some extent at least, pool sovereignties so as to ensure a less ad hoc, more multilateral set of responses.

UNHCR IN THE REGION

UNHCR has been engaged with countries in this region for many years. We have had major assistance and protection operations, notably for example in south-eastern Europe, where we have worked closely with regional governments and partners (including the OSCE) to find solutions for the displaced and support stability, development, peace and democracy.

While we are phasing out more visible assistance operations, we are turning more attention to the asylum/migration challenges, which in this region, as the themes of this Conference make clear, might well be grouped into the following three sets of issues:

• Developing capacity to manage both regular and irregular migration flows, including through building effective asylum systems.

• Addressing concerns related to trafficking and smuggling.

• Pursuing a multilateral approach which ensures better and more equitable responsibility sharing among destination and transit countries and the regions of origin.

Turning to the first of these:

Strengthening national capacities

The marked increase in regular and irregular migration movements demands development of strengthened migration management mechanisms, which include fair and efficient asylum systems well resourced, informed and operating in accordance with international standards. Much progress has been made in the development of asylum systems in central, eastern and south-eastern Europe over recent years, not least in the EU candidate countries through the PHARE Horizontal Programme. UNHCR puts great emphasis on this process and will continue to engage with it.

In the Balkans, the EU sponsored CARDS initiative is entering an important phase where the regional dimension is taking on a greater prominence. UNHCR is looking forward to playing an active part in this development, and will shortly be submitting proposals in this regard. Also, as regards the MARRI initiative, about which also you will later be briefed, we are most supportive of this effort to address asylum challenges in the south-eastern Europe region within a comprehensive framework plan which builds upon the complementarity and interlinkages of related initiatives already in train.

The effectiveness of asylum management depends in part on commitment at the highest political levels to manage responsibly and in accordance with law. It also depends on there being capacity actually to do so. Major strides have been taken to put in place appropriate legislation and set up the corresponding national institutions. UNHCR is boosting its efforts to assist governments in the region to build effective asylum systems across the gamut, from access at the borders, through proper procedures to durable solutions. It is important to underline that, in tandem with legislative development and institution building, there has to be a focus on ensuring access to the processes established. In other words, there has to be complementarity between asylum procedures and border management systems. Properly functioning systems begin with entry and reception arrangements.

The issue of border management and access links directly to the second set of issues I mentioned earlier, that is the problem of trafficking and smuggling. With an increased focus by governments on policies of deterrence and migration control over the last few years, it has become increasingly difficult for refugees and asylum seekers to reach asylum countries. Family reunion is an obstacle course at best. The spectre of September 11 has heightened security concerns in all states and borders are even more impenetrable to legal crossing. Hence many refugees and asylum seekers choose the illegal route, at considerable danger to themselves and only to the profit of the smugglers and traffickers.

UNHCR does not condone illegal migration and is committed to all reasonable measures which take away the profitability of smuggling. This being said the needs of the victims of smuggling and trafficking must also be addressed. Not all are refugees. Some though, even many, will be. It is UNHCR's experience that, for asylum systems to function well, it is vital that they take into account the forces that shape irregular migration and address them through even-handed responses which balance interests with legitimate protection needs and vulnerabilities. UNHCR has been working with a number of countries to put in place processes which screen and channel irregular arrivals according to their needs and their vulnerabilities. Our cooperation with the governments of Albania and Italy, working together with the OSCE and IOM, is interesting in this regard.

Moving, finally to the third set of issues, I have loosely subsumed them under the label, multilateral approaches. There are a number of processes in train (Budapest Process, Söderköping Process etc.) that provide fora for exchanges on issues of common concern in this region. UNHCR would be interested to hear your views on the success of these efforts to create regional synergies. We remain ready to continue, even strengthen, our engagement in effective processes that concretely lead to progress on regional objectives.

What we will, though, be working to avoid, are any outcomes which lead to unilateral burden shifting or "dumping" of responsibilities.

MECHANISMS WITHIN THE EU AND BEYOND: A BURDEN SHARING APPROACH

As some of you may be aware, UNHCR is currently engaged in a dialogue with countries in different regions (e.g. Bali process countries, but also those within the EU) on how to improve the availability of protection and solutions for refugees in the regions of origin, while addressing certain asylum dilemmas confronting host States. It is a comprehensive approach, which includes also efforts to improve national asylum systems and a better handling of manifestly unfounded cases.

UNHCR has proposed a comprehensive solutions-oriented approach with, in essence, three-prongs. One focuses, as I mentioned, on building and improving the functioning of domestic asylum systems so that they work more efficiently and expeditiously. Another is the regional prong which focuses on how to make solutions in the region of origin, or in first countries of asylum, more accessible. Built into this will be readmission arrangements for persons who can genuinely benefit from real and effective protection closer to home, coupled with investment in self sufficiency and solutions possibilities. Solid burden sharing is key to this part of the proposal. UNHCR also believes it is possible - and this is the third prong - to work out a burden sharing arrangement within the EU for manifestly unfounded cases. In view of the number of prospective member countries here today, let me give you a brief outline of this aspect of our thinking.

Recurrent problems faced by states in Europe include abuse of the asylum channel by "economic migrants" and the non-return of persons found not to be in need of international protection. These issues have also been of concern to UNHCR, as they can undermine the credibility of national asylum systems. We are looking at ways to combat abuse of asylum systems and to secure the return of persons found not to be in need of international protection, while at the same time preserving the core principles of the existing international refugee law framework and enhancing protection of refugees world wide. The Agenda for Protection is important also in this regard and deserves careful reading. It is spurring new thinking and initiatives to tackle these problems, including through the development of special agreements in the context of Convention Plus.

As we see it, destination regions as well as transit countries within the EU could benefit from a joint processing arrangement in respect of asylum applicants originating from certain designated countries of origin who are primarily economic migrants wrongly resorting to the asylum channel. This arrangement might be built around:

• Pre-screening of asylum claimants in countries of arrival to identify those whose claims are presumed to be manifestly unfounded, with the transfer of persons to a closed processing centre within the (new) EU, jointly funded by EU states and managed as a cooperative endeavour.

• Review of claims against the presumption (manifestly unfounded) through a credible, multilaterally resourced process.

• Readmission arrangements, negotiated by the EU and its member states, to ensure return from this transit centre to their countries of origin of persons whose claims are not found to be valid.

• Fair distribution among member states of persons found to be in need of international protection and in need of a resettlement solution.

Of course, the three prongs of this proposal are quite interdependent. Its feasibility overall will depend on the EU's continued commitment to invest in strengthened protection in host countries in the region of origin, just as in transit countries, including those in the periphery of Europe. While the migration management and asylum capacity has to be built here, this must not be a process of merely shifting the burden eastwards through pushing arrivals of irregular migrants and asylum-seekers beyond the new union border.

CONCLUSION

In conclusion, my main message is one of more effective management of the migration/asylum nexus. People in need of international protection must be able to find it. Abuse of entry possibilities must be curtailed. Solutions must be genuinely available.

Mechanisms to facilitate return of rejected cases and readmission to safe countries have to be central elements in any comprehensive approach for managing asylum systems and irregular migration in Europe. In all, burden sharing is fundamental.

A key challenge will be to identify the criteria, or indeed a region-specific formula, for this sharing. UNHCR is ready to assist to move this process forward, as appropriate through the Convention Plus initiative.