The Right to Seek – Revisited.

On the UN Human Rights Declaration Artivle 14 and Access to

Asylum Procedures in the EU.
E. Brower – “JHA” Session 7 (Christos)

The article compares the “right to seek and enjoy asylum” enshrined in Art. 14 of the
Universal Declaration of Human Rights (UDHR) with the current EU policy
developments to “externalize” or “extraterritorialise” migration control and refugee
protection. While Art. 14 falls short of granting a substantive right to be granted
asylum, its formulation was intended to maintain a procedural right – the right to an
asylum process.

1. Introduction

Why is it necessary to go back to UDHR of 1948?

- While the EU is ready to present proposals for its 2nd phase of Common
European Asylum Policy and the emphasis is placed on the full and inclusive
application of the 1951 Refugee Convention anther treaties on HR, it is
noticeable that more and more refugees find themselves unable to reach EU
territory and to access asylum procedures.

- Criticism is targeted at the European Court of Human Rights and its dynamic
style of interpretation (a group of lawyers in Strasbourg without proper
democratic mandate are making decisions which should be matter for the
political decision makers). It is claimed that the Court contributes to
establishing HR far beyond the ECHR and the scope of the associated
protocols.

- UDHR is a fundamental document for the development of human rights in our

time (was adopted by the UN GA on December 1948). Despite being a
Declaration and not Convention (meaning not legally binding), the various
rights listed in it are for the most part implemented in actual conventions. In
any case, UDHR is the expression of basic values to which our part of the
world also subscribes.

Its article 14 reads: “Everyone has the right to seek and to enjoy in other countries
asylum from persecution.”  the procedural and not the substantial right is
maintained and established.
2. Article 14 and the Right to Asylum Process

The Commission on HR sets a Drafting Committee in 1947. The final

recommendation of the Committee was: “Everyone has the right to escape
persecution on grounds of political or other beliefs or on ground of racial,
prejudice by taking refuge on the territory of any State willing to grant him
asylum”.

The Commission on HR changed the recommendation in a significant way after

pressure from NGOs in favour of the substantial right  new recommendation:
“Everyone shall have the right to seek and be granted asylum from persecution”.

It was opposed by Netherlands and South Africa (the recommendation seems to be

in contrast with every restriction on immigration anywhere in the world), while
the US wanted to have “temporary asylum” included. The World Jewish Congress
regarded a right to asylum to be implicit in the concept of the right to life (without
understanding the position of countries that have received large numbers of
Jewish refugees).

Finally the recommendation was sent to the 3rd Committee of the GA unchanged.

In the 3rd Committee two amendments were passed. Saudi Arabia removed the
verb “to be granted” and the UK added instead “to enjoy”. Argumentation: it
should be a statement of the fundamental rights of man and must make no
reference to the corresponding obligations of the State.

In the General Assembly, the right “to be granted” asylum was finally dropped
but the right to seek was retained. It therefore implies acceptance of a
corresponding obligation on the states. This obligation has been substantially
supported particularly by the binding principle of non-refoulement (Art. 33 of the
1951 Refugee Convention)  states must undertake at least part of an asylum
procedure in order to avoid sending back individuals to persecution.

But what if asylum seekers cannot reach EU?

In many other contexts, the physical-actual obstruction of a legal position would

clearly be regarded as a legal denial and therefore characterized as an explicit
infringement of the law. There are numerous examples of this, incidentally
especially within the EU law.
 3. “The Right to Seek” and the EU

The right to asylum is also recognized in the EU. Asylum issue becomes part of the
first pillar collaboration with the Amsterdam Treaty. Common Asylum and
Immigration policy was laid down in the new Chapter VI and Art. 63 emphasized that
all EU instruments must be in accordance with the Refugee Convention and its
Protocol.

The absolute respect for the right to seek asylum was confirmed in the 1999 Tampere
programme (the political objectives for the first phase of the EU asylum policy).
Also, the EU Charter of Fundamental Rights refer to this right [at the time of
writing LT has not entered into force and the Charter was not legally binding]. Even
before entry into of force of LT, ECJ has already referred to the Charter as a source
confirming the general human rights principles of the Union.

But one thing is discourse, another is practice. Harmonization process in the

asylum and immigration area so far can to a large extent be described as various
attempts to prevent access to asylum procedures, either by replacing them with
simplified procedures or other kind of protection or by targeting asylum-seekers
before their arrival in the MS.

Pre-arrival mechanisms to prevent access to EU territory deny the asylum seeker

access to the “procedural right”.

3.1. Control before departure

The visa is probably one of the oldest examples of preventive or external migration.
The first EU list of countries from which visas were required was introduced in 1995.
EU visa regulation divides the world into two main categories. For people arriving
from countries on the “white list”, the control is reduced and facilitates access to trade
and tourism. By contrast, “black list” ensures additional control level for all people
arriving from developing countries usually with many asylum seekers.

However, visa regulation does include an exemption paragraph which allows the
MS to deviate from the ordinary visa requirements for special groups of persons
coming from countries of the black list airport personnel, sailors, international
emergency workers and persons with diplomatic or service passports. The list is not
exhaustive but the fact that persons seeking international protection are not
included is nonetheless noteworthy.

To the extent that refusal to issue a visa prevent persons seeking protection from
leaving their country of origin, an essential premise of refugeehood under the 1951
Convention remains unfilled and no protection may thus be derived from this
instrument.
 3.2. Privatization of control

Another EU initiative = carrier sanctions  sanctions against the private airlines

and other international transport companies carrying passengers without valid travel
documents. This initiative was developed because not having a visa does not prevent
in itself access to the EU, after which MS authorities will be bound by the non-
refoulement principle if asylum is sought.

The threat of fines has made the airlines introduce control functions for their
passengers before departure. Several companies had hired security personnel
previously employed with the border authorities of MS or accepted training and
assistance by national border and immigration authorities. The EU directive of 2001
specifies that sanctions do not apply if persons seeking international protection are
carried. But several MS impose fines for bringing asylum seekers and the airlines are
not prepared to take the risk.

3.3. Collaboration with Third Countries

There is a growing network of immigration liaison offices. In an EU regulation of

2004, the task of such offices are defined as gathering information about flows, routes
and modus operandi for irregular immigration towards Europe, helping with
identification and repatriation and maintaining regular contact with the authorities in
the host countries.
The regulation presupposes that immigration liaison officers do not influence the host
country’s execution of sovereign tasks, but instead provide support and advice.
However, in practice the relationship is less straightforward. They are often the
operational factor in relation to more structurally motivated pressure on third
countries to make them take on tasks in relation to migration control. This pressure is
exercised also through the development policy (Cotonou Agreement countries) and
the ENP.
A specific extension of this collaboration is the agreements concerning joint
patrolling in the Mediterranean and along the West African coast outside the Canary
Islands. Frontex had launched several operations in collaboration with African
countries. The arrangement is based on earlier experiences from bilateral agreements
between Spain and Morocco and Italy and Libya.
The EU’s own border control and increasing use of rules concerning safe third
countries and readmission agreements are in themselves an incentive for such
countries to strengthen their border control, because they fear of becoming the end
station (a cul de sac) for refugees and economic migrants.
EU acting migration control extraterritorially means for asylum seekers that they are
rejected before even submitting an asylum application. Although control moves
outside the territory, national asylum typically only functions within the territory.
Therefore, there is no asylum expert in Frontex, since it is only facing illegal
migration and asylum is out of its competence. Insofar the asylum seeker is out of
side, the right to asylum process is likewise out of mind.
 3.4. Outsourcing Refugee Protection

Series of proposals have been made aiming at:

- relieving European asylum systems by building capacity in the local

countries

- or abolishing current EU asylum systems in favour of a combination of

refugee protection in regions of origin & asylum procedures outside EU.

These initiatives therefore still have a preventive rationale – reducing the number of
asylum seekers in Europe, but unlike the control mechanisms they are not aimed at
removing access to the right to asylum process, but rather at replacing the asylum
procedure in Europe with similar procedures somewhere else.

2003 UK’s radical proposal was rejected by Council due to the non-refoulement
principle but still on agenda. 2 elements:

1. Establishment of regional protection areas to avoid secondary flights to Europe and

ensure that asylum seekers could be returned.

2. Establishment of “transit processing centres” in the EU’s neighbourhood which

constitute the main asylum routes to Europe, where asylum seekers would be returned
(having spontaneously arrived in EU) to have their asylum case processed.

Instead later proposals presented extraterritorial asylum procedures as a supplement

rather than a substitute for EU asylum procedures. 2003 Commission published a
feasibility study on “protected entry procedures”: possibility of launching asylum
applications at the EU countries’ consulates and embassies. But this still leaves the
issue of substantial rights of asylum to the discretion of the state. States have an
obligation to grant further entry from embassy to host country by issuing a visa, only
if refusal would involve infringement of ECHR or Convention on the rights of the
Child.

Conclusion

Dutch presidency in 2004 presented the vision of protection in the local areas as a
shift from a European asylum policy towards a European refugee policy. It seems that
EU wants to contribute to the global substantial protection of refugees, but not to
the continuation of a procedural right of asylum within the EU.

One has to conclude that EU asylum and immigration policy in important

respects contravenes Article 14 of UDHR concerning “the right to seek”. Gradual
undermining procedural right might as well undermine substantial refugee protection.
So far the EU programmes aimed at strengthening refugee protection at the regions
have not been backed up by major financial commitment nor significantly raised the
protection level in these countries. EU plans for such global refugee protection will
be probably carried mostly by political commitment rather than legal obligation.