Statement by Mr. Ruud Lubbers, United Nations High Commissioner for Refugees, at an Informal Meeting of the European Union Justice and Home Affairs Council, Copenhagen, 13 September 2002

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Excellencies,
Ladies and Gentlemen,

I would like to thank you for this opportunity to address the Justice and Home Affairs Council of the European Union. Each of you has come here with your government's concerns. I am here to offer the assistance of my Office in addressing those concerns. UNHCR's role is to be a partner for governments. In dealing with the problem of mixed flows of refugees and economic migrants - which is the backdrop to many of your concerns - UNHCR can, and wants to be, part of the solution.

You have all seen the message I sent to the European Council when it met in Seville in June. The main point I made there was that Europe's problem of mixed flows of refugees and economic migrants cannot be solved in Europe alone. The measures that need to be adopted within the EU in the areas of immigration control, refugee protection and integration are inextricably linked to the external dimension of the EU's policies. This includes the search for durable solutions both in refugees' regions of origin and through resettlement to third countries.

The experience of Afghanistan in the last year illustrates how refugee problems - no matter how large in scope, and seemingly intractable - can be solved. UNHCR has played a lead role in mobilizing European and other governments to support the return and reintegration of Afghan refugees and internally displaced persons. My Office has also proposed - and continues to propose - tripartite frameworks to deal with the voluntary return of Afghans from countries of asylum in Europe.

It is clear that the ongoing and successful Afghan repatriation operation is resulting in reduced pressure on asylum systems in Europe. By the first quarter of this year, the number of Afghans seeking asylum in Europe had dropped significantly. One of the items on the agenda of this meeting is the question of the return of persons not in need of international protection. In this context, it is worth noting that UNHCR is now offering to assist with the repatriation of this category of Afghans under the new tripartite frameworks.

A major concern today is the issue of "secondary movements" of refugees and asylum seekers. I am convinced that the international community needs new agreements to deal with cross-cutting issues such as this. These new agreements would supplement the Convention and form part of multilateral frameworks for protecting refugees and achieving durable solutions, primarily in regions of origin. The ultimate goal of these agreements would be to build an effective system of international burden sharing, where governments are discouraged from taking unilateral and punitive action, and where refugees are able to rely on adequate protection and assistance within their regions of origin. For to take punitive action is to shoot oneself in the foot. It is not effective, and it only worsens the climate between North and South. How much better to go for a scenario in which there are incentives for governments to find durable solutions together.

It is not only between continents that irregular movements of asylum seekers take place. We also see "asylum shopping" and other irregular movements in Europe, and within the EU itself. I have offered my good offices to help France and the UK deal with the thorny problem of Sangatte. But while UNHCR is ready to offer its support to governments in this way, such intervention is short term and ad hoc. It cannot be a substitute for your continuing efforts to design a more effective "Dublin" system, and to agree on a common interpretation of the refugee definition.

This last point is critical, and it goes to the heart of my mandate as guardian of the 1951 Refugee Convention. I agree with the Danish Presidency that differing eligibility standards, resulting in differing recognition rates, are a major cause of secondary movements within the EU. It is indeed striking that asylum systems based on identical values and the same universal Refugee Convention produce such diverging results when it comes to recognition of refugee status.

Ladies and Gentlemen,

The ongoing negotiations on the "Qualification Directive" are largely about this issue of differing eligibility standards. My Office has put forward a set of observations and recommendations on this matter. To me, a downgrading of the definition of a person who is "in need of international protection" is simply unacceptable, for this lies at the heart of the existing international refugee regime. The Directive must reflect best practice and UNHCR's guidance on three particularly important issues: first, the recognition that persecution can be inflicted by non-State agents; second, leaving the door open to recognition of gender-based persecution; and third, subsidiary forms of protection which include civilian victims of armed conflict and generalized violence.

I know that governments want to maintain a cautious and strict definition of a refugee. This is illustrated by the fact that in EU countries "Convention refugees" are far less numerous than those to whom asylum is granted on "humanitarian" grounds. On the other hand, I know the importance that EU countries attach to humanitarian and human rights considerations. This strong humanitarian and human rights tradition of the European Union and its member states should be preserved and should be the very essence of the "qualification directive", both in the case of "Convention refugees" and those granted asylum on complementary "humanitarian" grounds.

This said, even with the best possible Directive we must face up to the reality that divergent interpretations will continue, with asylum-shopping as a consequence. We should therefore be thinking of innovative ways of gradually reducing these differences in the long term. For example, an EU-wide advisory body could be set up to monitor the jurisprudence of national RSD administrative bodies. UNHCR would be willing to provide its expert services in support of such a body. Moreover, there should be an efficient system of up-to-date information on countries of origin, to be put at the disposal of national decision-makers. With its new Protection Information Section, my Office is ready to contribute to such a system.

Another thing that strikes me when I read eligibility statistics is the persistence of large numbers of asylum seekers who originate from countries that do not normally produce refugees. Here we do not have much of a problem of conflicting recognition rates, for everywhere in Europe members of these groups are denied refugee status at the rate of 90% or more. The problem is, obviously, that these claims jam asylum procedures, undermining the credibility of the institution of asylum in the process.

Some of you have tried to declare such claims "inadmissible", but this raises legal as well as practical difficulties. UNHCR's Executive Committee has affirmed that a decision on the manifestly unfounded character of a claim is a matter of substance, which cannot be dealt with at the admissibility stage, even though the substantive analysis can be accelerated. I am sure that all of you would accept this legal point without too much anxiety, if you could be sure that manifestly unfounded claims would be processed out of the system promptly. To achieve this, you need to inject sufficient human resources into first instance processing.

But you also need time-efficient and simplified appeals. This, I understand, is where you feel that much of the problem lies. And you are right. The problem is in the appeals process. Indeed, the volume of these appeals and the lengthy process of adjudicating them is what blocks the system, creating so much frustration.

Ladies and Gentlemen,

It was largely frustration with the appeals process that led Ministers to develop the concept of "safe countries". But let me be frank. For me as High Commissioner for Refugees, it is simply one bridge too far to label countries as "safe", to the extent that they cannot produce any refugees at all.

I am fully aware that we need accelerated procedures for those who come from countries that do not normally produce refugees. We need new thinking on this. In particular, we need new thinking on simplified appeal procedures. UNHCR is willing to help you develop new models for this. For example, we could jointly identify specific groups of asylum seekers with regards to whom such procedures would apply. At the same time, I would like to encourage you to explore new protection mechanisms nearer to the origin of refugee movements. One proposal is that EU Member States should offer opportunities for those few individuals who have a need for international protection to make asylum visa applications at embassies in their countries or regions of origin.

Good governance of refugees requires generous burden sharing, and a focus on voluntary repatriation and reintegration, as well as local integration in the region. But the attempt to diminish the arrival of non-refugees as well as secondary flows world-wide has to be complemented by resettlement further abroad for those limited numbers who need this. Where it is possible to grant asylum visa applications without endangering the lives of the individuals concerned, this would be surely be more humane and more effective than simply leaving these people to fall into the hands of human traffickers and criminal networks.

Finally, allow me to return briefly to the new agreements that I mentioned earlier. What I have in mind here is what I call the "Convention Plus". What do I mean by this? Only a few years ago, a number of governments were questioning the continuing relevance of the 1951 Refugee Convention. In light of this, it was significant that there was such unanimous reaffirmation of the continuing centrality and validity of the Convention at the Ministerial Meeting of States Parties to the Convention that took place in Geneva in December last year. The Ministerial Declaration which came out of the meeting attests to this. Having said this, it has also become clear that the Convention alone does not suffice. What is needed, therefore, is the "Convention Plus".

The "Plus" relates to a number of special agreements aimed at managing the challenges of today and tomorrow in a spirit of international co-operation. As some of you may recall, an earlier precedent was the Comprehensive Plan of Action, relating to refugees and asylum seekers in Southeast Asia, which proved vital in solving that crisis. My current attempts to forge tripartite frameworks for voluntary repatriation to Afghanistan, including that of rejected asylum seekers, is another example. But we could go beyond such specific situations. For instance, in the case of "secondary movements", a special agreement could be drawn up to define the roles and responsibilities of countries of origin, transit, and potential destination, with regard to asylum seekers. I can also imagine special agreements on massive outflows, resettlement and post-conflict reintegration and reconstruction. I am convinced that in this way we will be able to inject more predictability into the system, and adjust it better to today's realities, in the interests both of States and of those who need international protection. The current trend towards more unilateralism is adding to the confusion, and needs to be reversed. It can be.

Such agreements would be a concrete outcome of the process of Global Consultations on International Protection, which has already spurred new thinking on all of these issues, as reflected in the action points contained in the Agenda for Protection. The Forum on International Protection, which I intend to establish as a result of this process, could provide a useful framework for the multilateral development of such agreements.

My mission as High Commissioner is to provide international protection to refugees and to facilitate their voluntary repatriation or their "assimilation within new national communities", to use the words of Article 1 of the UNHCR Statute. These special agreements, which would be in line with Article 8(b) of the Statute, would help us to carry out this mission more effectively. If solutions are to be found in refugees' regions of origin, it is vital that you convince your heads of government that development assistance must be used to assist developing countries in meeting the needs of refugees and in facilitating their voluntary repatriation or assimilation. With a greater emphasis on ensuring lasting solutions in regions of origin, the numbers of refugees requiring settlement in European countries will be lower, and the need to integrate these people into your societies will be easier to explain to your citizens. Above all, the problem of refugees falling into the hands of human smugglers and traffickers will diminish, and refugee movements will no longer fuel criminal networks in the way they do today.

Ladies and Gentlemen,

Much of this relates to the external dimension of the EU's asylum policies. But these issues are inextricably linked to the EU's internal problems, which are the direct concern of the Ministers for Home Affairs and Justice. It is clear that there is a continuum between the internal and external dimensions of asylum; between protection within the EU, capacity-building at the periphery, and solutions in countries and regions of origin. My Office is at your disposal on all these fronts, not only to advise on legal issues but also to act as a genuine partner in the search for durable solutions and better international burden sharing.

I look forward to your comments.

Thank you.