New Asylum Countries?

by Byrne, Rosemary; Noll, Gregor; Vedsted-Hansen, Jens

• ISBN13: 9789041117533
• ISBN10: 9041117539
• Format: Hardcover
• Copyright: 2002-04-01
• Publisher: Martinus Nijhoff

Summary

How is access to asylum and other forms of extraterritorial protection regulated in the European Union? Is the EU acquis in these areas in conformity with international law? Which tools does international law offer to solve collisions between both? And, finally, is law capable of bridging the foundational oppositions embedded in migration and asylum issues?This volume is about the transformation of asylum in Europe in the context of the EU enlargement process. This transformation involves norms, as well as the procedures and resources for their implementation. In the candidate countries, as in the west, the process of transformations is marked by the tension between the interests of protection and migration control. Through their comprehensive analysis, the authors illuminate the legal and political dynamics which underlie this tension. Chapters trace the complex patterns of national, sub-regional and EU law and policy that are driving the future of asylum in an expanded Europe. This allows for reflection on what the transformation process tells us about the current EU asylum acquis, and what it tells us about the prospects for refugee protection in the new frontier states and beyond. This book is the result of a three year study carried out by academics and practitioners from the candidate countries, current Member States, and international organizations. It explores the evolution of refugee policy and practice in a changing Europe.

Table of Contents

Table of Contents	v
List of Figures and Tables	xvi
Abbreviations	xix
Introduction	1	(4)
Western European Asylum Policies for Export: The Transfer of Protection and Deflection Formulas to Central Europe and The Baltics	5	(24)
The EU Accession Process	5	(5)
Non-Admission and Non-Arrival Policies	10	(7)
Various Types of Deflection of Asylum Seekers	10	(4)
Deflection Policies with a Particular Impact on Central European States	14	(2)
Shifting Responsibility and Creating Safe Third Countries	16	(1)
Safe Third Country Practices	17	(11)
The Notion of a Safe Third Country	17	(2)
The Dublin Convention and EU Member States as Safe Third Countries	19	(2)
Harmonization and Safe Third Country Practices	21	(4)
Accession, Enlargement and Safe Third Country Practices	25	(3)
Reshuffling Protection Burdens	28	(1)
The Central Link: Germany, Poland and the Czech Republic	29	(71)
Germany	29	(19)
Policy	29	(2)
Practices	31	(2)
The Domestic Legal Framework	33	(1)
The German concept of safe third countries	33	(5)
Entry and apprehension in the border zone	38	(2)
In-country application	40	(1)
Negotiating the Eastern Border	41	(1)
Poland	42	(2)
The Czech Republic	44	(2)
Conclusion	46	(2)
Poland	48	(30)
General Situation and Policy	48	(1)
Conversion from Sending Country to Transit	48	(5)
Migratory Pressure from the East and South	53	(3)
Pressure from the West	56	(1)
Financing and co-operation	56	(3)
The political aspect	59	(1)
Readmission Agreements with the Eastern Neighbours	60	(2)
Changes in the Law	62	(1)
Fundamental Steps	62	(2)
Refugee status and asylum	64	(1)
Bodies deciding in refugee matters	64	(2)
Access to the Determination Procedure	66	(2)
The Notion of `Safe Country'	68	(1)
Definitions	68	(2)
Practice	70	(1)
Detention	71	(2)
Humanitarian Status (Temporary Protection)	73	(2)
Conclusions	75	(3)
The Czech Republic	78	(16)
Transit or Destination State?	78	(1)
Political Concerns	78	(1)
Rising Numbers of Asylum Seekers	78	(1)
Implementing Readmission Agreements with Neighbouring States	79	(2)
Legislative Practices	81	(1)
The Aliens Act	81	(4)
The Asylum Act	85	(1)
Multifunctional Character of the Asylum Act	85	(1)
A Comparison of the Asylum Act and the Charter of Fundamental Rights and Freedoms	85	(2)
The Concept of the Safe Country of Origin	87	(1)
The Concept of the Safe Third Country	88	(1)
The Concept of Persecution	89	(1)
The Entry of an Application into the Territory and the Institution of Asylum Procedure	89	(2)
Appeal Options	91	(1)
Manifestly Unfounded Applications	91	(1)
Minimum Procedural Guarantees	92	(1)
Conclusion	92	(2)
Conclusions on the Central Link	94	(6)
The Proliferation of Strategies and Counter-Strategies	94	(1)
Numbers	95	(1)
The New Orbiters	96	(4)
The Southern Link: Austria and Hungary	100	(103)
Austria	100	(38)
Introduction	100	(1)
Developments in Domestic Legislation	101	(1)
Amendments in 1990 Justified as `Emergency Responses'	101	(3)
The Phase of Consolidated Restrictionism	104	(3)
Relaxing Restrictionism: 1997 and Beyond	107	(3)
Building a New Curtain	110	(1)
The Multilateral Dimension	110	(1)
EU membership	110	(1)
Schengen	111	(2)
The Bilateral Dimensions	113	(1)
Border control and apprehension in the border zone	113	(3)
Readmission agreements	116	(3)
Transposing the Acquis	119	(1)
The Safe Third Country Concept	119	(8)
Implementation of the Dublin Convention	127	(1)
Manifestly Unfounded Cases and Accelerated Procedures	128	(1)
Airport Transit and Applications for Asylum at the Airports	129	(2)
Carrier Sanctions	131	(1)
Applications at the Borders	131	(1)
Austrian Policies Targeting Hungary	132	(1)
Hungary as a Safe Third Country	132	(3)
Border Control and Apprehension in the Border Zone	135	(2)
Austria's Capacity-building Measures in Hungary	137	(1)
Hungary	138	(62)
Introduction: Notes on the History of Migratory Movements in Hungary	138	(2)
Challenges Shaping Hungary's Role and Policy over the Last Decade	140	(1)
The General Pressure of Migrants	140	(6)
Hungary as a Country of Asylum	146	(1)
The first phase	147	(2)
The second phase	149	(1)
The third phase	150	(1)
Role of the UNHCR until 1998	151	(1)
The fourth phase	152	(3)
Problems with the data (where have all the new arrivals gone?)	155	(3)
The Challenge Posed by the EU	158	(1)
Bordering Austria and the European Union	158	(1)
Legal and Policy Harmonization with the EU	159	(2)
The Practice in its Changing Form	161	(1)
Impact of Non-Domestic Actors Including Western European States and the EU	162	(5)
The Effect of Bilateral Treaties	167	(9)
Unique Features of Hungarian Law and Practice	176	(1)
The road to the new act	177	(1)
Critical elements of the new Hungarian legislation concerning asylum seekers and refugees	178	(16)
The 2001 bill: the EU acquis as a pretext or a guiding tool?	194	(3)
Conclusion	197	(3)
Concluding Observations on the Southern Link	200	(3)
The Northern Link	203	(102)
Nordic Policy Responses to the Baltic Asylum Challenge	203	(23)
Strategic Aspects of the Nordic-Baltic Relationship	203	(1)
Diverging Interests: Political Support vs. Self-Protection	203	(2)
Safe Third Country Criteria and the Ensuing Containment Policy	205	(3)
The Episodic Approach to Policy-making	208	(3)
Political Self-Interests and Dependencies	211	(1)
Conditionality in Migration Policies	211	(2)
Abolition of the Visa Regime	213	(3)
From Sub-regional Conditionality to EU Accession Pressures	216	(2)
Cooperation and Coordination on Asylum and Migration Issues	218	(1)
Cooperation Forums and Division of Responsibilities	218	(2)
Influential Cooperation: Containment and Capacity-building	220	(2)
Protection vs. Exclusion as the Objective of Cooperation	222	(4)
Lithuania	226	(41)
Factors which Prompted Establishment of Asylum Systems	226	(1)
Background and Context	226	(2)
Trading Rights with Nordic States: Visa-free Travel and Refugee Protection	228	(2)
Pressure from International Organizations	230	(1)
Legislative Practice: Balancing Refugee Protection against Exclusion	231	(1)
Access to the Territory	231	(4)
Access to the Procedures	235	(1)
At the border	235	(1)
In the territory	235	(3)
On readmission from the West	238	(1)
Refugee Definition	239	(1)
Existing definition	239	(4)
Exclusion clauses	243	(2)
Asylum Procedures	245	(1)
Time-limit clauses for asylum applications	245	(1)
Appeal rights and suspending effect	246	(2)
Accelerated procedures	248	(1)
Detention of asylum seekers: general rule or exception?	249	(4)
Cases Falling Outside the Existing Refugee Definition	253	(1)
Lack of alternative status and efforts towards introducing one	253	(1)
Fate of persons excluded from the existing refugee definition	254	(4)
Restrictive Practices	258	(1)
Policy Strategies	259	(1)
Concerns for Stability	259	(1)
Avoiding the `Closed-Sack' Effect	260	(5)
Adopting Western Practices	265	(2)
Latvia	267	(14)
Factors which Prompted Establishment of the Asylum System	267	(1)
Background and Context	267	(3)
Trading Rights with Nordic States: Visa-free Travel and Asylum Protection	270	(1)
Pressure from International Organizations	271	(1)
Legislative Practice: Balancing Refugee Protection against Exclusion	272	(1)
Access to Territory	272	(1)
Access to Procedures	273	(1)
At the border	273	(1)
In the territory	274	(1)
Refugee Defintion	274	(1)
Existing definition	274	(1)
Exclusion clauses	275	(1)
Asylum Procedures	276	(1)
First instance level	276	(1)
Second instance	276	(1)
Accelerated procedures	277	(1)
Caseload Falling Outside the Existing Definition	277	(1)
Lack of alternative status	277	(1)
Deportation	278	(1)
Capacity Building	278	(1)
Reception and Asylum Systems	278	(1)
Strengthening Border Controls	279	(2)
Estonia	281	(20)
Factors which Prompted the Establishment of Asylum Systems	281	(1)
Background and Context	281	(2)
Trading Rights with Nordic States: Visa-free Travel and Asylum Protection	283	(1)
Pressure from International Organisations	284	(2)
Legislative Practices: Balancing Refugee Protection against Exclusion	286	(1)
Access to Territory	287	(1)
Access to Procedures	287	(1)
At the border	287	(3)
In the territory	290	(1)
Upon readmission from the west	290	(1)
Refugee Definition	291	(1)
Asylum Procedures	292	(1)
Time-limit clauses for asylum applications	292	(1)
Appeal rights and suspensive effect	292	(2)
Accelerated procedures	294	(2)
Detention of asylum seekers	296	(1)
Caseload Falling outside the Existing Definition	297	(1)
Lack of alternative status	297	(1)
Fate of those persons outside of the definition	297	(1)
Policy Strategies	298	(1)
Policies of Evasion: Fear of `Closed-Sack' Effect	298	(1)
Transposing Western Practices	299	(2)
Concluding Observations on the Northern Link	301	(4)
Protection in a Spirit of Solidarity?	305	(20)
The Role of Burden-Sharing in the Enlargement Context	305	(8)
The Objective of Burden-sharing	306	(1)
The Scope of Burden-sharing	307	(4)
Sharing Norms	311	(1)
Sharing Money	312	(1)
Sharing People	313	(1)
A Synopsis of Burden-Sharing in the EU Context	313	(6)
Bosnia and Kosovo as Problem Indicators	313	(1)
Standard-Setting and Regime-Building Efforts in the EU	314	(5)
Burden-Concentration in Europe	319	(5)
The Dublin Convention	319	(2)
Safe Third Countries in the East	321	(3)
Conclusions	324	(1)
Title IV Tech and the Schengen Integration Protocol with Special Regard to Implications on Accession Candidates	325	(26)
Introduction	325	(3)
A New Areas of Jurisdiction in Title IV of the TEC; the Third Pillar Acquis in the Fields of Asylum and Refugee Law to be Implemented in the First Pillar	328	(22)
Forms of Legal Action; Possibilities of Incorporating the Acquis to Date into Community Law	336	(5)
Jurisdictions of the ECJ	341	(1)
Implications for Accession Candidates	341	(4)
The Schengen Protocol; Incorporating the Schengen Acquis into Community or Union Law	345	(3)
Issues of Transparency	348	(2)
The Asylum Protocol	350	(1)
Resume	350	(1)
Recent Developments in Central Europe and The Baltic States in the Asylum Field: A View from UNHCR and the Strategies of the High Commissioner for Enhancing the Asylum Systems of the Region	351	(22)
Introduction	351	(1)
Recent Developments in the Central European and Baltic States	352	(4)
Important Achievements in Building Asylum Systems	352	(1)
The Forces Driving Progress	352	(1)
Some Problems Still to be Overcome	353	(1)
Prevention of Illegal Migration and Refugee Protection	354	(2)
UNHCR's Objectives and Strategies in Central Europe and the Baltic States	356	(3)
How to Proceed in the New Asylum Countries?	356	(1)
The Prime Objectives of UNHCR in the CEBS	356	(2)
UNHCR's Main Activities in the Region	358	(1)
EU Involvement in Institution and Capacity Building in the Central European and Baltic States	359	(1)
EU Harmonization and the EU Acquis on Asylum: UNHCR's Perspective on the Implications for the Central European and Baltic States	360	(6)
UNHCR's View of the EU Harmonization Process	360	(2)
The EU Acquis as an Asset for Refugee Protection in the CEBS	362	(1)
The EU Acquis on Asylum and International Refugee Law Standards	362	(4)
Assessing the Results of UNHCR's Strategy	366	(2)
An Attempt to Predict the Future	368	(5)
The Continued Momentum Created by EU Accession	368	(2)
Some Problems that may Persist	370	(1)
Future UNHCR Activities in the Region	371	(2)
Future Perspectives: Accession and Asylum in an Expanded European Union	373	(50)
Introduction	373	(5)
Migration and Asylum Policy in the West in the 1990s	378	(3)
Factoring the Influences on Asylum Policy: the Accession Process in Context	381	(15)
Chain Reactions: Readmission Agreements, `Safe Third Country' Policies and the `Closed Sack' Fear	383	(8)
Transferring the Acquis and the Democratic Process	391	(5)
The Process of Accession	396	(3)
The Tampere Summit and the Future of the Asylum Acquis	399	(3)
Transposing the Acquis	402	(19)
Manifestly Unfounded Claims	403	(5)
Minimum Guarantees for Asylum Procedures	408	(4)
Bifurcated Harmonization: Procedure Before Substance	412	(4)
Judicial Challenges to the Presumption of Equal Justice	416	(5)
Lessons Learned	421	(2)
Transformation of Asylum in Europe	423	(10)
A Comparative Assessment of Migration Control and Refugee Protection in the Three Sub-regions	424	(2)
The Phases of the Transformation of Asylum	426	(3)
Asylum and Enlargement	429	(4)
Select Bibliography	433	(6)
List of Contributors	439	(4)
Index	443