The Transfer of Protection Status in the EU, Against
Total Page：16
File Type：pdf, Size：1020Kb
Final Report Tender no. DG.JAI/A2/2003/001 Study on The transfer of protection status in the EU, against the background of the common European asylum system and the goal of a uniform status, valid throughout the Union, for those granted asylum By Nina M. Lassen with Leise Egesberg (Danish Refugee Council) Joanne van Selm with Eleni Tsolakis (Migration Policy Institute) Jeroen Doomernik (Institute for Migration and Ethnic Studies) 25 June 2004 Danish Refugee Council Institute for Migration and Ethnic Studies This study has been carried out by the Danish Refugee Council, the Migration Policy Institute and the Institute for Migration and Ethnic Studies on behalf of the European Commission (Directorate General for Justice and Home Affairs). The opinions expressed by the authors do not necessarily reflect the position of the European Commission. European Community, 2004 Reproduction is authorised, except for commercial purposes, provided the source is acknowledged and the attached text accompanies any reproduction: “This study has been carried out by the Danish Refugee Council, the Migration Policy Institute and the Institute for Migration and Ethnic Studies on behalf of the European Commission (Directorate General for Justice and Home Affairs). The opinions expressed by the authors do not necessarily reflect the position of the European Commission.” ii Table of Contents Acknowledgements and Attributions vii Executive Summary viii Introduction 1 1. The Fundamental Questions: proactive and reactive 4 2. Transfer of Responsibility 6 3. Background: Why is or might transfer of responsibility or 7 protection status be an issue in the EU? (Relation to Dublin, Long-term resident third country national directive and other relevant instruments) 3.1 The Dublin Context 9 3.2 The Long-term Resident Context 10 4. Explanation of study, reasons for undertaking it, methodology 11 5. Layout of the Report 14 Part 1 - Existing international and regional legal 17 framework 1. 1951 Convention Relating to the Status of Refugees 17 1.1 The apparent centrality of the Travel Document 18 1.2 Extraterritorial Effect of the Determination of Refugee Status 24 1.3 Transfer of residence rights: the actual centrality of lawful 29 residence 1.4 The overlap and distinctions between status determination; stay or 30 residence; Travel Documents and protection obligations 1.5 Standards of protection obligations and criteria of entitlements to 32 treatment under the 1951 Convention 1.5.1 Standards of protection obligations 32 1.5.2 Criteria of entitlements to treatment 34 1.6 Scope of protection responsibilities implied in the transfer of 36 responsibility for issuing Travel Documents: The centrality of lawful residence 2. The 1980 European Agreement on Transfer of Responsibility 37 for Refugees 2.1 Background 37 2.2 “Two years of actual and continuous stay” 39 2.3 Scope of responsibility transferred on application of the European 40 Agreement 3. Bilateral Agreements 42 4. Convention Status and Subsidiary Protection 43 iii Part 2 - Current Practice 46 1. Description of existing systems for transfer of protection in 46 place in Member States and Switzerland 1.1. Countries using the European Agreement on Transfer of 46 Responsibility for Refugees 1.2. States not using the European Agreement on transfer of 90 responsibility for refugees 2. Qualitative and quantitative assessment of transfer of 111 protection carried out in Member States - An analysis of practice 2.1. Ratification of relevant international and regional instruments 111 2.1.1. 1951 Convention and its Schedule 111 2.1.2. The European Agreement on Transfer of Responsibility for Refugees 111 2.2. Application and implementation of international and regional or 112 bilateral standards in general 2.3 Level of transfers 115 2.4. Causes for movement and for request for transfer of responsibility 118 2.5. Categories covered (Convention - subsidiary protection) 118 2.6. Criteria for accepting transfer of responsibility for the issuance of 119 travel documents 2.6.1. “Two years of actual and continuous stay” of the European Agreement 121 2.6.2 Application of the “Lawful residence” criteria of the 1951 Convention 122 2.7. Scope of transfer of responsibility 123 2.7.1. Application of extraterritorial effect to refugee status determination 123 carried out by other State party 2.7.2. Scope of transfer of responsibility for protection 124 2.8. Bilateral proceedings 126 2.9. Rules relating to unaccompanied minors 126 2.10. UNHCR and NGO involvement 126 3. The Refugee Experience 127 3.1 Thinking about moving 128 3.2 Decided/hoping to move 130 3.3 Are moving/has moved 133 3.4 Transferred protection 135 3.5 In sum 137 3.5.1 Motives 137 3.5.2 Obstacles to transfer of protection: the need for full information 138 3.5.3 Current strategies undertaken by refugees 138 3.5.4 Successes and best practices regarding transfer of protection 139 PART 3 - Future Scenarios 140 1. Between Member States 140 A. The refugee becomes an asylum seeker again in the second state 142 A.1 Reflections on subsidiary protection A.2 Administrative implication and data issues iv B. The refugee is recognized as such without new procedures (as set 145 out in the 1951 Convention) B.1 Refugee rights B.2 Administrative implication and data issues C. The refugee is dealt with in the same way as long-term resident third 150 country nationals (whether LTR status is granted or not) D. The refugee is treated in the same way as EU nationals even if the 157 refugee has not naturalized, and so does not have citizenship of a Member State (ie similar to the directive on free movement for EU citizens) E. The refugee’s treatment in the second Member State is dependent on 163 the reason for movement, and not on the protection claim. F. A new system is created for refugees to move and reside in the 164 whole EU, as part of the Common European Asylum System 2. Between Non-Member States and Member States 168 Conclusion 169 Appendices 172 Appendix One - Questionnaire (Officials) 172 Appendix Two - Questionnaire (Refugees) 184 Appendix Three - Minimum standards of treatment of refugees 185 under the 1951 Convention Appendix Four - Criteria of entitlements to treatment in accordance 187 with the 1951 Convention List of Interviewees 189 Bibliography 194 List of Tables 1: Summary: 1951 Convention, ExCom Conclusions and Notes on Travel 22 Document, Movement (and Transfer of Protection) 2: The Council of Europe Agreement on the Transfer of Responsibility for 41 Refugees 3: Nature and degree of implementation of international and regional 114 legislation on transfer of responsibility 4: Number of cases accepted for transfer 116 5: Main criteria for considering transfer of responsibility 120 6: Implication and scope of transfer of responsibility 125 146 v 7: Full situation as set out in the 1951 Convention relating to the Status of Refugees. 8: 1951 Convention and Council of Europe Agreement 148 9: Full situation for Third Country Nationals as set out in the Directive on 156 Long-term Residence Status for Third Country Nationals. 10: Movement for residence purposes in the EU for EU citizens 158 11: Treatment of refugees as they must be treated under the 1951 Convention, 161 treatment of long-term resident third country nationals and of EU citizens Summary tables are also included at the end of each country report in Part 2. vi Acknowledgements and Attributions The Introduction and Part 1 of this report were primarily the responsibility of Nina Lassen at the Danish Refugee Council and Joanne van Selm at the Migration Policy Institute. Part 2 Sections A, B and C was the responsibility of Nina Lassen, with Leise Egesberg at the Danish Refugee Council. Many policy- and case decision-makers as well as officials of UNHCR and the Council of Europe were interviewed specifically for these sections. All the authors are grateful to those people for their time and insights. Their responses to our questions also helped to shape Parts 1 and 3 and the Introduction and Conclusions. Part 2 Section D was the responsibility of Jeroen Doomernik of the Institute for Migration and Ethnic Studies at the University of Amsterdam. All the authors are grateful to the thirty-nine refugees who were willing to share their stories for that section of the study. Ilse van Liempt and Marjolein Veldman assisted in conducting some of the interviews. Part 3 of the report was the responsibility of Joanne van Selm with Eleni Tsolakis at the Migration Policy Institute. Sammi Green assisted in the collection of some documentation. All of the authors are grateful to the members of the project Advisory Group (Guy Goodwin-Gill, Andreas Kamm, Kathleen Newland, Clara Odofin, Demetrios Papademetriou, Rinus Penninx and Volker Turk) for their support and comments. We are also grateful to Menno Verheij, Phil Douglas, Friso Roscam Abbing, Muriel Guin and Beatrice Neven at the European Commission for comments, guidance and support. Many of those civil servants interviewed for the early sections of Part 2 were kind enough to review the relevant country reports in draft form. We are grateful to Madeline Garlick, Peter van der Vaart and Brian Gorlick of UNHCR and Denis Bribosia of the Council of Europe for their oral or written comments on an earlier draft. Anne La Cour Vågen and Sara Egelund at the Danish Refugee Council also offered very useful comments. Finally, our thanks to Arne Herman Nielsen, Yasmin Santiago and Hanneke Grotenbreg at our three institutes, who took care of the administrative aspects of this project. Responsibility for the contents of this report, including any errors, remains with the authors. vii Executive Summary 1. Background for the study In its November 2000 Communication "Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum", the European Commission suggested that the question of transfers of protection between Member States should be studied.