Doc. 9726

11 March 2003

Common policy on migration and asylum

Report

Committee on Migration, Refugees and Demography

Rapporteur: Mr Michael Hancock, United Kingdom, Liberal, Democratic and Reformers' Group

Summary

It is of the utmost urgency that the Council of Europe develops a common policy on migration and asylum, irrespective of the fact that some of its member states are also members of the European Union. Such a policy would ensure greater unity among Council of Europe member states, which is the fundamental aspiration of the Council of Europe, and would contribute to the creation of a Europe-wide area where people in need of international protection, including migrants, will enjoy a treatment in line with human rights, the principle of the rule of law, access to basic rights and to legal remedies.

This policy should be clearly located in the human rights sphere, in accordance with Council of Europe expertise and aims. The phenomenon of migration in its broad meaning cannot be reduced to an issue of freedom of movement and access to the labour market. Migrants, asylum seekers, people in need of protection and any other category of forced or voluntary migrants may be workers or potential workers, but they are first of all human beings. Behind every individual experience of migration there are humanitarian and human rights concerns that cannot be addressed in a proper manner through a policy that considers migrants only as labour or potential labour. It is therefore necessary to elaborate a common policy acknowledging the nexus between asylum and migration.

I.       Draft recommendation

1.       The Assembly is concerned that major differences in migration and asylum law and policy may produce considerable disparities in the treatment that different Council of Europe member states afford to migrants, asylum seekers and refugees, thereby undermining the establishment of greater unity among member states, a fundamental aspiration of the Council of Europe.

2.       The Assembly acknowledges the progress made by the European Union towards the development of a common asylum and migration policy and encourages it to persevere in its efforts to attain the objectives set out in the Amsterdam Treaty and the Conclusions of the European Council of Tampere.

3.       The Assembly, however, is convinced of the need to establish a Council of Europe common policy on migration and asylum, consisting of minimum standards which should be shared by all Council of Europe member states irrespective of their membership of other international organisations and without prejudice to more favourable provisions applicable in some member states. Such a common policy on migration and asylum would contribute to creating a Europe-wide area where migrants and people in need of international protection enjoy treatment in line with human rights, the principle of rule of law, access to basic rights and to legal remedies.

4.       In fact, even whilst recognizing the important differences between the various categories of forced or voluntary migrants, the Assembly believes that a Council of Europe common policy on migration and asylum should be based on core rights and procedural safeguards to be enjoyed by all those who are within the jurisdiction of a Council of Europe member state, be they economic migrants, aliens who join their families in the context of family reunification procedures, other categories of non-forced migrants, asylum seekers, refugees or other people in need of international protection.

5.        Such a policy should be inspired by an integrated approach to migration and asylum and acknowledge the nexus between the two: in particular, that the lack of channels for legal immigration may lead a number of economic migrants to abuse the asylum system as the only way of gaining access to a country of their choice; that some people in need of international protection wish to choose the country in which to apply for asylum, and therefore prefer not to make their presence known to the authorities of other states, living or transiting in breach of immigration rules; and finally, that migration can be forced by persecution, generalised violence and widespread human rights violations but also by other compelling factors, including extreme poverty.

6.       A Council of Europe common policy in this area, based on rights and procedural safeguards common to both migration and asylum, should not be prejudicial to more favourable provisions applying under national or international law to some specific categories of voluntary or forced migrants.

7.       The Assembly believes that such a policy, consistent with its role and expertise, should be placed in the context of the protection of human rights and the respect for dignity of the person, and in particular of the European Convention on Human Rights.

8.       Finally, a Council of Europe common policy on migration and asylum should be based on a concerted effort by countries of origin, transit and destination to address the root causes of forced and voluntary migration movements and on a commitment to engage in activities of conflict prevention and development aid.

9.       The Assembly therefore recommends that the Committee of Ministers instruct its relevant Committees to elaborate a model for a Council of Europe common policy on migration and asylum, according to the following guidelines:

a.       As to border control:

i.       member states should enforce effective immigration control at their borders, respectful of their international obligations;

ii.       member states should improve their co-operation with a view to ensuring effective immigration border control, namely through the organisation of common training, exchange of intelligence and other joint initiatives and activities;

iii.       under no circumstances should the enforcement of immigration border control be prejudicial to the principle of non-refoulement for those who are in need of international protection;

iv.       member states should ensure that those responsible for the enforcement of border control receive adequate training in human rights and refugee law and this should cover how to deal with minors, and in particular to deal with victims of trafficking and other vulnerable groups.

b.       As to detention on immigration/asylum grounds:

i.       detention solely on the basis of immigration/asylum reasons should be resorted to on an exceptional basis and only where there is convincing evidence that the person concerned would abscond;

ii.       full reasons should be given for the decision to detain, indicating the evidence upon which it is based, and be notified to the person concerned, both in writing and in a language that s/he understands;

iii.       the decision to detain should be considered null and void if, at the moment of the notification, the concerned person is not informed, in writing and in a language that s/he understands, on how to appeal against such a decision and how to have access to free legal advice and representation;

iv.       in any case, detention for immigration/asylum reasons should be confirmed by a court order within 48 hours of the decision to detain being taken, and subsequently, if detention continues, at least every month;

v.       under no circumstances should detention for immigration/asylum reasons exceed six months.

c.       As to fairness of immigration/asylum procedures:

i.       any legal procedure aimed at granting a legal status, at limiting personal liberty or at removing a foreigner from the territory of a member state should comply with the Geneva Convention on the status of refugees and its 1967 Protocol, as well as the European Convention on Human Rights; in addition, it should be fair and include a sufficiently reasoned final decision, which should be notified in writing to the concerned person in a language that s/he understands.

d.       As to access to interpretation and legal advice and representation in the context of immigration and asylum:

i.       during any legal procedure aimed at granting a legal status, at limiting personal liberty or at removing a foreigner from the territory of a member state, independent legal advice and representation should be available free of charge if the concerned person does not have sufficient financial means;

ii.       during any legal procedure aimed at granting a legal status, at limiting personal liberty or at removing a foreigner from the territory of a member state, any communication between the local, state or federal authorities of such a state and the concerned person, which could affect his/her legal status or removal, should take place with the assistance of a professionally qualified and independent interpreter;

e.       As to duration of the asylum procedure:

i.       as a rule, the relevant authorities should reach a decision on an asylum application within six months;

ii.       after six months, the authorities responsible for processing the asylum application should inform the concerned person in writing and in a language which s/he understands of the reasons why they have been unable to reach a decision;

iii.       if no decision on an asylum application has been made within six months, the person concerned should be granted a residence permit of an additional minimum duration of six months, and granted access to the labour market.

f.       As to expulsion:

i.       member states should introduce effective measures to ensure the expulsion of foreigners who are not in need of international protection and who do not hold any legal title to stay in the country;

ii.       any decision to expel a foreigner from the territory of a Council of Europe member state should be subject to a right of suspensive appeal;

iii.       if an appeal against expulsion is lodged, the appeal procedure should be completed within three months of the original decision to expel;

iv.       those who do not hold any legal title to stay in a Council of Europe member state but cannot be expelled for practical reasons including, amongst others, the non existence of readmission agreements with the country of origin, the lack of co-operation of the authorities of the country of origin, the suspension of flights to the country of origin, the impossibility of determining the identity or the nationality of the person to be expelled, should be registered by the authorities as soon as their presence is known and granted temporary leave to remain in the country, renewable for so long as the relevant conditions persist.

g.       As to minors:

i.       any foreign unaccompanied minor or separated child who is at the border of a Council of Europe member state should be granted admission to the territory with a view to ascertaining his/her identity, nationality and legal status;

ii.       Council of Europe member states should introduce clear rules on the appointment of a legal guardian for every unaccompanied minor or separated child who is at their border or in their territory. Such an appointment should be made without delay and no later than two weeks from the presence of the unaccompanied minor or separated child coming to the knowledge of the authorities;

iii.       no unaccompanied minor or separated child should be expelled, rejected, removed or otherwise returned to his/her country of origin or any other country before the appointment of a legal guardian has been made, the opinion of the legal guardian as regards the return of the child has been heard and duly considered, and a formal undertaking has been made by the authorities of the country to which the child is being returned that appropriate immediate and long-term care will be provided upon his/her return;

iv.       minors should not be detained exclusively on immigration/asylum grounds. This principle does not admit exceptions.

h.       As to trafficking and smuggling:

i.       member states have the duty to apprehend and punish traffickers and smugglers as well as to provide assistance and protection to victims who agree to co-operate with a view to apprehending traffickers and smugglers;

ii.       in this respect, the negotiation, conclusion and ratification of a European convention on trafficking should be strongly encouraged as a fundamental element of a common policy on migration and asylum.

II.       Explanatory memorandum by Mr Michael Hancock

(Phil Coulter and Eddie Furey)

1.       Introduction: the world on the move, but to where?

1.       It may surprise a few people that their own country, in receiving asylum seekers, is not unique. Asylum is a global issue. In all of our past encounters and those that continue to take place throughout the world, we must seek to present the truth about the global situation, and also to reach a proper appreciation of the position of Europe in the World and the position of each of our own countries within Europe.

2.       At the last reckoning, there is estimated to be a total of 20 million refugees around the World. 8.8 million in Asia, 4.1 million in Africa, 4.8 million in Europe, 1 million in North America, ¾ million in Latin America and the Caribbean and 81,000 in Oceania. In 2001 there were estimated to be over 380,000 asylum applicants in the EU alone: but this figure was down significantly, by about 50% from 10 years ago – and we need to remember that.

3.       Not surprisingly, most refugee movements have a clear relationship with events such as natural disasters and civil wars, particularly those within and around the most directly affected areas of the world. This is why dealing with the root causes of refugee displacements, asylum applications and migration generally is so important. The Council of Europe needs to argue that the utmost urgency is needed in our responses to the situations underlying the refugee problems we face.

4.       Europe, and for that matter the World, has always experienced migration, both forced and unforced. As the Organisation for Economic Co-operation and Development said in a recent report, the growth of irregular migration is a testament both to the increasing demand for labour and to the absence of legal entry channels. With an estimated 3 million unauthorised migrants in Western Europe, clandestine immigration is not an exceptional, one-off event that could, perhaps, be consigned to history; it is an inevitable phenomenon that is likely to grow as globalisation, economic and social transition and inter-ethnic conflict continue.

5.       Phenomena like refugee displacements, as well as labour migration and illegal immigration flows, are here to stay; and where men and women migrate and settle, for whatever reason, migration to achieve the reunion of families will certainly follow. Only at the margins can data-based methods control who enters a country’s territory, and Governments simply cannot direct the big picture. Applications for asylum and migration flows are not controlled by some tap that can be turned on and off. Sadly, however, public opinion is often fickle and schizophrenic and sometimes people are just plain confused by such complex issues. That is why it is important that organisations like the Council of Europe and others shoulder their public responsibility to explain the reasons behind asylum seeking, refugee-related problems and migration. Illegal and clandestine migration are only a small part of these issues and in themselves far from homogeneous. Ignorance should never be an excuse for doing nothing about situations that have caused so many people to take the step of uprooting and relocating their lives.

6.       The public needs a wake-up call telling them that migration is inevitable. In many ways, migration could easily be seen as desirable. We cannot be blind, however, to the fact that it poses some conflicts of interest that need to be reconciled, and we must all engage ourselves more closely in the debate on how that should be done. There needs to be a lot of educating, a lot of discussion: all the more reason why this paper should be a starting-point for that process, here within the Council of Europe.

7.       Asylum and Immigration are among the most emotive issues on the current European political scene, even though overall levels of migration are lower than they were during the 1990s. Member states have collectively failed to resolve the conflicting desires of people to work and reside in the EU, the economic necessity for more migrants, and the bureaucratic nightmare of processing applications, whilst meeting the concerns of those who perceive immigrants as some kind of threat.

8.       Despite efforts at Seville to put the issue on the agenda, the EU does not yet have an effective policy for dealing with asylum seekers or immigrants generally. The Dublin Convention, which was intended to refine existing systems, has not worked in practice. Nor, at present, are there any clear guidelines on the repatriation of illegal migrants, whose claims to remain in one of the EU countries have been rejected. Just as with cross-border crime, no single EU state acting alone can deal effectively with asylum and immigration within the existing legal frameworks. Thus the clear need for a common asylum procedure and equitable treatment of asylum-seekers throughout Europe demands to be met by adoption of a common policy.

9.       A fair and efficient joint approach would also improve the protection of the rights of those being repatriated, whilst also serving as a deterrent against illegal migrants.

10.       The Council of Europe must work with countries of origin to try to alleviate the economic, political and security situations that cause people to leave their homes. This form of co-operation would benefit both the sending and the receiving countries.

11.       Open borders across an enlarged EU will be a difficult goal to achieve. The richer Western European nations argue that external border controls in the newer countries are not as rigorous as their own. In the future, however, there may be a case for stronger external border controls policed by joint European forces. This would both relieve the burden on states with external EU land or sea borders, and address the concerns of the richer states that newer members do not have the capacity to police borders to the same standards of effectiveness.

12.       A secure Europe need not, however, be a "fortress" Europe. Immigrants are needed if Europe’s economy is to thrive, especially in view of its ageing population. The Union’s policies, therefore, should not be for zero immigration – an impossibility – but should reflect the economic requirements of the member states as well as the pressures acting upon would-be immigrants.

13.       The Rapporteur recalls the instruments adopted by the Parliamentary Assembly in the field of asylum and migration, and in particular the following Recommendations: 1440 (2000) on restrictions on asylum in the member states of the Council of Europe and the European Union, 1467 (2000) on clandestine immigration and the fight against traffickers, 1475 (2000) on the arrival of asylum seekers at European airports, 1544 (2001) on the propiska system applied to migrants, asylum seekers and refugees in Council of Europe member states: effects and remedies, 1547 (2002) on expulsion procedures in conformity with human rights and enforced with respect for safety and dignity, 1577 (2002) on the creation of a charter of intent on clandestine migration, and 1596 (2003) on the situation of young migrants in Europe. Though recognising the importance of these previous instruments, your Rapporteur believes that the present report and draft recommendation should be the starting point for the elaboration of a common Council of Europe policy on migration and asylum.

14.       Your Rapporteur wishes to thank all the parliamentary delegations who have sent information about developments in their national migration and asylum policies, as well as the German federal authorities and the authorities of the State of Berlin who have assisted him during his visit to Berlin and the German-Polish border (4-5 September 2002). Finally, the Rapporteur wishes to thank Ms Marianna Ventouratou and Ms Maree Perfrement who have greatly contributed to the preparation of this report.

2. The development of a common asylum and migration policy within the European Union: the Amsterdam Treaty and the European Council of Tampere

15.       In 1997, European Union member states agreed to the Amsterdam Treaty thereby committing to the creation of an “area of freedom, security and justice” through the establishment of common standards for asylum and migration.

a.       Asylum

16.       European leaders sought to give political impetus to the process of standard setting in the field of asylum and, at a special European summit at Tampere (Finland, October 1999) promised to work towards establishing “a Common European Asylum System, based on the full and inclusive application of the Geneva Convention”1.

17.       The first steps towards developing common guidelines in the field of asylum have been taken, even if they are not yet in force and could be substantially changed during the adoption process. The Commission has produced a number of Proposals for Directives including a replacement for the Dublin Convention to determine the state responsible for examining an asylum claim2, together with minimum standards on asylum procedures3, reception conditions for asylum seekers4 and qualification for refugee status or subsidiary forms of protection5. The main aim of these Proposals for Directives is to ensure that the minimum level of protection is available in all Member states and to reduce disparities between Member states’ legislation and practice.

18.       Obtaining agreement on the adoption of these draft Directives has, at times, been difficult due to differences in opinion regarding the scope of the instruments under discussion and member states’ unwillingness to adopt measures which exceed the scope of their national legislation6. The five-year deadline for the adoption of these Directives expires in 20047.

19.       In line with the Tampere Conclusions, the adoption of a common policy in the field of asylum will take place gradually, through a so-called "open co-ordination procedure" to promote the progressive convergence of national policies and practices. This would entail the Council adopting common guidelines on policy, to which states would then harmonise their legislation. Once national legislation had harmonised sufficiently, states would be in a position to adopt common policies8.

b.       Migration and co-operation with countries of origin

20.       The development of a common migration policy has also been the subject of discussion. The Tampere Conclusions stressed the importance of partnership with countries producing large numbers of asylum seekers, to address “political, human rights and development issues in countries of origin and transit”. The High Level Working Group9 established to develop a comprehensive policy on migration and asylum has produced reports on implementing action plans for cooperation with Albania, Afghanistan, Iraq, Somalia, Morocco and Sri Lanka. These plans are intended to build capacity for the readmission of failed asylum seekers and illegal immigrants and to strengthen minority rights, democratic institutions and the rule of law, in order that minorities or opposition groups can feel safe to remain or return.

21.       The European Union is in the process of negotiating a number of readmission agreements with third countries, which have been identified by the European Commission on the basis of criteria such as: their importance as countries of origin or transit of illegal migrants and failed asylum seekers, number of nationals awaiting for removal/expulsion to be enforced from EU member states, geographical proximity with the external border of the European Union. The first European Union readmission agreement was signed by the Commission with Hong Kong on 27 November 200110. Other readmission agreements under negotiation include those with Macao, Morocco, Pakistan, Russia, Sri Lanka and Ukraine, as well as with Albania, Algeria, China and Turkey.

22.       The Tampere Conclusions also called for the Council to make “rapid decisions” on the harmonisation of national legislation on the conditions for admission of third-country nationals, “based on a shared assessment of the economic and demographic developments within the Union, as well as in the countries of origin”. This implied the development of common criteria for determining the number and origin of non-nationals who might be admitted to member states as immigrants. In addition, Tampere called for the harmonisation of national legislation on the legal status of long-term residents from third countries, granting them “a set of rights which are as near as possible to those enjoyed by EU citizens”.

23.       Following the European Council in Tampere, the Commission produced a communication on implementing a common immigration policy11, recognising the need to achieve better management of migration flows and arguing that demographic and labour market changes necessitate more proactive policies to recruit additional labour migration in European Union states. In line with the above-mentioned communication on a common asylum policy, it proposed an open coordination policy on immigration12, with member states aligning legislation to conform to common guidelines, on the basis of specially designed National Action Plans.

24.       Two Proposals for Directives on migration, which also affect recognised refugees along with other third country nationals who are legally resident in the European Union, are currently under consideration. These are on the right to family reunification13 and the status of long-term residents14.

25.       A Proposal for a Directive on employment15 is particularly significant, as it sets out a common legal framework governing the admission procedure and status of "labour" immigrants. The Directive does not provide quotas for admission and Member states will be responsible for the implementation of the directive including deciding how many migrants will be admitted, identifying which sectors of the labour market have shortages and selecting appropriately qualified people.

26.       Following September 11, the Laeken summit (December 2001) re-emphasised the need to manage the European Union’s external border controls to combat illegal migration including the establishment of a common visa identification system16 and exchange of information on migration and refugee movements. Directives on the mutual recognition of expulsion decisions against third country nationals17 and on carrier sanctions18 have now been adopted.

27.       In addition, the Commission has issued a Communication on a common policy on illegal immigration19, setting out an Action Plan to prevent and combat illegal immigration and trafficking of human beings in the European Union20. In this context, the Commission has produced a Proposal for a Directive21 on the issuing of short-term residence permits to victims of illegal immigration or trafficking who cooperate with the competent authorities and a Green Paper on a Community Return Policy on Illegal Residents22.

28.       Your Rapporteur is aware of the reluctance of some EU member states to proceed towards a common immigration policy, as it is shown by the slowness with which acts on this issue are being adopted and their limited number. Your Rapporteur, however, believes that many of these concerns are unwarranted since in a EU common immigration policy criteria for legal admission will be harmonised but the number of legal immigrants to be admitted will still be decided at national level.

3.       Asylum law and policy in Council of Europe Member states

a.       Common features

29.       All Council of Europe member states have now signed the 1951 Geneva Convention on the status of Refugees as well as the 1950 European Convention for the protection of Human Rights and Fundamental Freedoms. Your Rapporteur is aware that the signature of international instruments per se does not imply a uniform or harmonised interpretation and implementation of treaty obligations. For example, Ukraine acceded to the Geneva Convention earlier this year but new legislation on refugees, which came into force in 2001, only applies the principle of non-refoulement to recognised refugees, leaving asylum seekers who have not had their cases processed exposed to the risk of deportation to face possible persecution in their country of origin. Your Rapporteur is convinced, however, that this is a first step and encourages Council of Europe member states to adhere to their treaty obligations.

30.       Most Council of Europe member states have introduced a distinction between ordinary and accelerated asylum procedure, Italy, Belgium and Luxembourg representing exceptions. The accelerated procedure is usually applied where the application is deemed to be "manifestly unfounded", or where the applicants come from a "safe country of origin" or have travelled via a "safe third country".

31.       The concepts of "safe country of origin" and "safe third country" have been the subjects of a number of regional non-binding instruments, including Recommendation No R (97) 22 of the Committee of Ministers containing guidelines on the application of the safe third country concept (25 November 1997).

32.       All countries considered in this report have a state body which is responsible for deciding over the admissibility and the merits of an asylum application. UNHCR and specialised NGOs working in the refugee field may intervene at various levels, in their own right or at the request of the State authorities. For example, in Spain, UNHCR is involved through many stages of the refugee determination process. It can follow the progress of asylum applications, attend hearings, and submit reports to the Ministry of the Interior to support an application. The Office for Asylum and Refuge is legally obliged to inform the UNHCR Representative of every asylum application lodged in Spain and at Spanish border points23. UNHCR is given the opportunity to make recommendations and although its opinion is not binding, it is followed in most instances. Similarly in Bulgaria, the UNHCR representative is entitled to have access to information and to asylum cases at every stage in the

asylum procedure, as well as to give verbal and written opinions on individual asylum cases24. In Romania, the role of the UNHCR representative is limited to being present at an asylum seeker’s interview and there is no provision for involvement at other stages of the determination procedure25.

33.       In all countries a right of appeal is ensured against a negative asylum decision. In some countries, including Denmark, Greece, Ireland, Portugal, Sweden, Czech Republic, the Slovak Republic26, Estonia, Norway and Turkey, there is a one-level right of appeal. In other countries there is a two-level right of appeal and in Germany and Italy a third stage is possible. In addition, the right of appeal to the European Court of Human Rights exists in all countries: any individual who has exhausted domestic remedies and feels that his/her rights protected under the Convention are violated is entitled to apply to the Court.

34.       With the abolition in Belgium of financial assistance for asylum seekers at the admissibility stage, all European Union members have now placed limitations on the social assistance provided to asylum seekers. For example, in Austria up to two-thirds of asylum seekers were excluded from federal care in 2001. Under the Czech Republic’s new law, asylum seekers living outside reception centres will only receive benefits for three months. In the United Kingdom asylum seekers are now supported by way of cash payments rather than vouchers, although they are still expected to live on about 70% of income support levels available to United Kingdom citizens27.

b.       Main differences

35.       The total number of asylum applications and recognition rates vary considerably amongst Council of Europe Member states. In 2001, Germany (88,290) and the United Kingdom (88,300) received by far the greatest number of asylum applications. Portugal, at the other end of the spectrum, received 190 applications. There is also a vast difference in recognition rates for Convention refugee status. In 2001, Turkey (47%), Belgium (21%), Germany (21%), Denmark (18%), Bulgaria (17%), Italy (16%) and France (15%) had the highest rates. The United Kingdom had a 12 percent recognition rate whilst the Czech Republic, Finland, Estonia, Hungary, Lithuania, Netherlands, Norway, Slovak Republic, Slovenia, and Sweden all had recognition rates of below 2 percent28.

36.       Looking at the last two decades there have been dramatic changes in the role of country of origin, transit and destination in Europe. In very recent years there has been a decline in applications in Germany, coinciding with a rise in applications in the United Kingdom and, to a lesser degree, in Austria, Belgium and the Netherlands. The United Kingdom, which received few asylum seekers during the 80s, became the second largest receiving country during 1997-2001, accounting for 15 per cent of all claims. During the entire 20-year period, however, Germany received three and a half times more applications than the United kingdom. France, the fourth largest recipient of asylum seekers during the 20-year period, was the only country which experienced a notable reduction of its influx in the 1990 (-19%). The relatively high share of the Netherlands since 1997 (8%) compensated low arrivals in the 80s, bringing its total intake of asylum-seekers in line with Switzerland and Sweden for the entire period (5%). A second major development in Europe has been that the number of countries receiving at least 1000 asylum applications per year has doubled over the period 1997-2001. Countries which became new recipients of asylum seekers included Finland, Ireland, Norway but also central European countries such as Bulgaria, the Czech Republic, Hungary, Poland, Romania, Slovakia and Slovenia and a Baltic State (Lithuania). This is particularly noteworthy once it is considered that in the 80s central European countries were countries of origin of asylum seekers29.

37.       Although the role of central and eastern European countries has changed from countries of origin of asylum seekers to countries of destination, important differences with western European countries still remain. First of all, an important number of nationals of central and eastern European countries still continue to seek asylum: in the period 1997-2001, 108,600 asylum-seekers from central and eastern European countries applied for asylum in industrialised countries. Secondly, central and eastern European countries have a relatively high proportion of asylum cases which have been closed without a positive or negative decision: since 1992, 95% of asylum cases in Slovenia, 88% in Slovakia, 63% in the Czech Republic, 51% in Hungary and 49% in Poland. It is true that cases may have been closed for a number of reasons, but these exceptionally high rates suggest that a substantial proportion of asylum seekers do not stay in the region, but move on to other countries. It does not come as a surprise that central and eastern European countries are transit countries, as well as countries of origin and destination, but your Rapporteur felicitates UNHCR for having collected statistical information about the number of closed cases, which helps to understand the relevance of the phenomenon.

38.       With the progressive implementation of a common asylum policy the European Union and its member states are edging towards the delicate and difficult goal of harmonisation of substantive law. At present, there is no common interpretation of the refugee definition set out in Article 1A(2) of the 1951 Geneva Convention on Refugees among European Union member states. Nor is there common practice as to when subsidiary forms of protection will be granted to asylum seekers with some member states granting subsidiary protection far more often than Convention status30. Subsidiary protection has traditionally been granted where an asylum seeker did not meet the criteria for refugee status but was nevertheless in need of international protection31. Subsidiary protection has often afforded a lesser standard of treatment than provided to Convention refugees.

39.       For instance, France and Germany32 have adopted a narrow interpretation of Article 1A(2), restricting refugee status to those who have a well-founded fear of persecution for a Convention reason by the state or where the state condones or tolerates persecution. They do not accept that action by non-state agents, which the state is unable to prevent, is also persecution33. In accordance with this interpretation refugee status will be denied in a situation of civil war, where there is no government at all. Both France and Germany however, recognise persecution by a de facto authority that is deemed to exercise state-like powers34. In addition, France, whilst not recognising that the 1951 Convention provides protection from non-state agents of persecution, has created a status of "territorial asylum" for persecution by non-state agents.

40.       Conversely, the United Kingdom along with the vast majority of European Union member states, provide refugee status where the authorities not only knowingly tolerate persecution by non-state agents, but also where the authorities are unable to offer effective protection. In principle, it is also accepted that the 1951 Convention applies to persons fleeing civil war where they are able to show distinctive persecution (a differential impact), “over and above the ordinary risks of warfare”35. The UN High Commissioner for Refugees has supported this interpretation, repeatedly stating that persecution can emanate from non-state agents.

41.       Important differences of interpretation also arise in relation to whether men or women or individuals with a particular sexual orientation are members of a "social group". The Refugee Act in Ireland, for example, states that membership of a social group should be interpreted as including “a group of persons whose defining characteristic is their belonging to the female or the male sex or having a particular sexual orientation”36. In the United Kingdom, "membership of a social group" is not defined in legislation however the courts have held that women and gay men and lesbians may come within the definition37. Similarly France has taken an expansive interpretation towards women, including non-excised women in certain societies, as members of a social group38. Member states such as Austria and Denmark have been reluctant to recognise women as a social group albeit the Unabhängiger Bundesasylsenat (Independent Federal Asylum Review Board) has recently concluded that a social group could include women who risk excision39.

42.       The European Commission produced a common position for a refugee definition in 1997. This position was however, both, very restrictive and not binding upon Member states. The Commission has now been working for a year on a Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection40, which, once adopted, will be a binding instrument. The Directive defines who will be recognised as refugees by Member states and who will be entitled to subsidiary forms of protection. The main aim of the Directive is to give asylum seekers the same chance of being granted protection in each country and thereby limit secondary movement by asylum seekers motivated by the different refugee determination practices of Member states.

43.       The refugee definition in the Directive is very similar to that in Article 1A(2) of the 1951 Convention. In addition the Directive also broadly defines each of the grounds for persecution. For example, a social group is "a group which may be defined in terms of certain fundamental characteristics, such as sexual orientation, age or gender, as well as groups comprised of persons who share a common background or characteristic that is so fundamental to identity or conscience that those persons should not be forced to renounce their membership". States are required to consider that gender-specific violations may be defined as persecution for the purposes of the 1951 Convention including domestic violence, and treatment such as excision or forced sterilisation. In addition, persecution may emanate from the state, or non-state actors where the state is unwilling or unable to provide effective protection41. The effectiveness of protection is measured in relation to the steps taken to prevent the infliction of harm. This includes a system of domestic protection, prosecution and punishment of actions which constitute persecution or other serious harm and will also depend on the access the applicant has to this protection.

44.       At the end of November 2002, under the Danish Presidency, the Council reached political agreement on a great number of articles regarding the proposal for a Council Directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection. The Council has therefore instructed the Permanent Representatives Committee to pursue work with a view to reaching political agreement at a forthcoming Council meeting42.

45.       These efforts to bring forward harmonisation remain limited to the European Union area, and through the enlargement process, to candidate countries. Outside the European Union there is no international institution promoting instruments leading to a harmonised approach, with the exception of the United Nations High Commissioner for Refugees (UNHCR) who, through its continuous activity of advice and consultation, supports the development of asylum law and practice in eastern Europe in compliance with human rights standards.

46.        What has been said above can be stated also for the harmonisation of rights to which asylum seekers are entitled: the European Union is taking measures to achieve harmonisation in this field, even if important gaps will remain43.

47.       At present, one of the main differences among member states is whether asylum seekers are entitled to seek and take up employment pending the examination of their asylum application and/or pending appeal. The law in this respect varies greatly: there are states where asylum seekers cannot work, irrespective of how long it takes to decide their asylum application (France, Ireland, Italy); in other countries asylum seekers can have access to the labour market (Belgium, Greece, Norway, Portugal, Spain); finally, in others, they can do so only if no decision has been taken on their asylum application and a certain number of months have elapsed since they lodged their application (3 months for Finland, 4 months for Sweden, 6 months for the United Kingdom). Under the Commission's Proposal for a Directive in 2001, asylum seekers and their families were to have access to work after a maximum of six months, if their asylum applications had not been decided. However, under the political agreement reached by the JHA Council in April this year, Member states will be allowed to grant immediate access to the labour market or deny access for up to one year. Following a year, access should be granted but states will be permitted to impose conditions on access to the labour market, which significantly nullify this right. In practice, the provisions on the right to work will leave such a wide discretion to Member states that it will hardly have any impact on current practice.

48.       No definite position has been taken by the Commission on the detention of asylum seekers, which currently may be resorted to in some Council of Europe Member states where there is a risk that the person would abscond, the application is manifestly unfounded, the individual concerned is a multiple applicant or with a view to facilitating the deportation of failed asylum seekers.

49.       The United Kingdom currently detains more asylum seekers, in both prisons and detention centres, than any other European country44. A person can be detained indefinitely at any stage of their asylum claim including for the purpose of identity checks, or if there is any reason to consider that the person might not comply with conditions imposed on their release45. An asylum seeker who has been detained for more than six days can apply for bail if no decision on their asylum request has been taken. They can also apply for bail pending the hearing of an appeal against a first negative decision46. Although there is a legal requirement that detainees be informed of the reasons for detention, this is often in practice a pro-forma statement47.

50.       The British Government has expressed its intention to dramatically increase the number of detention places available particularly for the removal of failed asylum seekers48. Procedural changes have also been made to extend the cases in which negative decisions on asylum cases imply limited possibilities of appeal (so-called "certified appeals") and in which courts will deem cases as inadmissible (refusal of leave to appeal)49. The Home Office, rather than the immigration appellate authorities as previously, will now serve these decisions on the applicant. It is assumed that this procedure is to ensure the enforcement of removal by making it easier for the Immigration Service notify a decision to detain at the same time that the refusal of an asylum claim served. Concerns have been voiced that even where a certified appeal has been dismissed there may still be grounds for judicial review and that such a policy would result in more people being held for long periods of time while the immigration services cannot remove them50.

51.       Pre-deportation detention is also common in Germany where it is given routine approval by local courts, even where the enforcement of the deportation is obviously not possible within the established three-month limit. Detained asylum seekers can appeal to the District and Regional Courts but only have two weeks respectively in which to do so. In addition, a detention order cannot be subject to judicial review if the time for which it had been valid has elapsed. Asylum seekers without valid identity documents who are detained by border police in order to secure their removal, are likely to be removed before their asylum application reaches the German refugee authority51.

52.        Similarly, the European Commission has not foreseen, for the time being, any harmonisation of the maximum duration of the asylum procedure, which in some Council of Europe member states may last a number of months and in some cases, where judicial review of negative decisions is sought, the process may take several years. Your Rapporteur believes that, as a rule, the relevant authorities should reach a decision on an asylum application within six months. It is not admissible for the credibility of the asylum system and for the certainty of legal status of genuine applicants that some Council of Europe member states may take years to process an asylum application. Your Rapporteur is aware that there may be exceptional cases in which the collection of evidence is particularly difficult or where there are reasonable and objective reasons to explain the length of the asylum procedure, but is convinced that states should mobilise additional resources to ensure the fair, efficient and competent processing of asylum claims.

53.       Your Rapporteur believes that there cannot be harmonisation of procedural asylum law without harmonisation of appeal rights and of access to free and independent legal advice and representation. Even where Council of Europe member states permit some form of appeal against refusal of asylum, this right of appeal does not always have suspensive effect. This risks causing serious harm to genuine asylum seekers who are returned to their country of origin on the strength of a first negative decision on their case and putting a member state in contravention of its international obligations to prevent refoulement. Appeals in some Council of Europe member states have suspensive effect during accelerated determination procedures whilst in other states the appeal will only have suspensive effect during the normal determination procedure or where the applicant has specifically applied for suspension. In France, for example, appeals under the accelerated procedure do not have suspensive effect whereas appeals following the regular procedure and against deportation orders do. Similarly in Hungary, appeals under the accelerated airport procedure do not have suspensive effect. Appeals in the United Kingdom and the Netherlands, instead, do have suspensive effect during all stages of the asylum determination procedure.

54.       The European Commission has recently adopted a modified proposal for a Council Directive on minimum standards on procedures in member states for granting and withdrawing refugee status52. In the first proposal appeals, in all cases, had in principle suspensive effect. In the modified proposal however, a distinction has been introduced between the regular and the accelerated procedure. In the accelerated procedure, member states may now have non-suspensive appeals. Your Rapporteur believes that this amendment is likely to result in genuine asylum seekers being placed at the risk of refoulement as accelerated procedures compromise essential legal and procedural safeguards. Allowing asylum seekers a suspensive right of appeal would reduce the very real risk of refoulement of people who are genuinely in need of international protection.

55.        In relation to legal assistance, there are wide divergences between Council of Europe member states. In some states most asylum seekers do not receive any legal assistance during the asylum procedure whereas in other states the majority of asylum applicants do receive it. Given the limited resources of the majority of asylum seekers most of them rely on state-funded assistance. Some member states, for example, Belgium, Denmark, Estonia, Finland, Hungary, Luxembourg, Netherlands, Norway, Portugal, Romania, Spain and the United Kingdom, have recognised in their legislation the right of asylum seekers to free legal assistance throughout the asylum procedure. Others have recognised the right only at a particular stage of the procedure. For instance in Germany there is a right to free legal advice after a first negative decision at the airport or for judicial proceedings. In the Czech Republic, Italy, France and Switzerland there is a right, on fulfilment of certain conditions, to free legal assistance for appeals only. In Bulgaria, Estonia, Greece, Hungary, Latvia and Lithuania asylum seekers have no access to state-funded legal advice and representation.

56.       A recent study conducted by the European Council for Refugees and Exiles53 has shown that in some member states, even where the right to legal assistance is recognised in law, the overwhelming majority of asylum seekers receive no legal advice or assistance during the first administrative asylum procedure. Sometimes, legal advice is only obtained at the appeal stage and even at this stage only a minority of appellants receive legal assistance. Your Rapporteur recalls Recommendation 1236 (1997) of the Assembly stating that “a fair hearing should be …a full interview and examination of the asylum claim by a specialised authority, and appropriate legal assistance….asylum seekers should be provided with legal assistance throughout the procedure”54. and reiterates this recommendation. In addition, your Rapporteur wishes to mention the issue of quality of legal advice and representation provided as well as the effectiveness of such advice and representation, especially in cases involving large scale-arrivals of asylum seekers or mixed flows of asylum seekers and people who are not in need of international protection. Council of Europe member states should ensure that regular training courses on international and national refugee law are provided to lawyers and members of the judiciary; bars associations should monitor the professional training and conduct of their members working on asylum and migration issues to ensure their quality and consistency with code of conduct. Finally, the provision of legal advice and representation should be effective. For instance, it cannot be considered as effective access to legal remedies that people arriving in the South of Spain are issued deportation orders after having been in conference with their legal representative for 1 or 2 minutes55. Expulsion/removal procedures for those who do not have any legal title to stay in a Council of Europe member state and are not in need of international protection should be enforced rapidly and efficiently, but not to the expenses of the rule of law and effective access to legal remedies.

4.       Migration56 law and policy in Council of Europe Member states

a.       The nature and size of migration

57.       Council of Europe member states differ considerably in terms of the size and profile of their migration flows and their resident migration populations and in terms of the challenges posed by migration57. For the European Union as a whole, the net migration rate in 2000 was 1.8 per 1 000 persons. This represents a slight decrease compared with 1999, and is considerably less than the peak observed in 1992 (3.7 per 1 000 persons)58. Authorised migration includes labour migration, and migration for the purpose of family reunification. In northern Europe, family reunification and marriage immigration, including families of migrants, comprises the largest share of authorized foreign (non-European Union) migration. In France and Sweden, for example, it accounts for at least half of new admission59.

58.       It is widely thought that the level undocumented migration is significant. It is however, because of its very nature, impossible to have a clear picture of the scale of illegal migration in Council of Europe member states. IOM60 estimates that the upper limit of unauthorised migrants in Europe at 3 million in 1998, as compared to less than 2 million in 1991. Depending on the calculation methods used, illegal migrants are thought to represent between 10 and 15% of migrants already present and between 20 and 30% of inflow61. In Germany almost 40 000 foreign nationals were apprehended in 1998 after entering illegally, usually across the Polish or Czech border. In southern Europe – particularly in Italy, Spain and Greece – labour migration far outweighs family immigration and is dominated by the arrival of young workers from Mediterranean countries particularly North Africa. The majority initially enter, reside and/or work without documentation62. One response to unauthorised migration has been regularisation programmes. During the 1990s, Spain, Italy, Portugal and Greece have enacted amnesty programmes for unauthorised migrants, these countries offered more than 1.2 million people legal residency63.

b.       Border control

59.       The greatest development of a common migration policy amongst Council of Europe member states has taken place within the European Union and amongst Eastern and Central European countries, who to facilitate their accession to the European Union, are engaged in the process of aligning their legislation with European Union and Schengen standards. Common migration policies have included the abolition of internal border controls between Schengen states, strengthening of external European Union border controls and harmonisation of visa arrangements. For example, Romanians, Ukrainians and Moldovians now need a visa to enter the Czech Republic and Bulgaria has introduced a visa for Russian nationals.

60.       In order to improve enforcement of the border control measures the Border Guard service in many Central and Eastern Europe countries has been restructured, with less reliance on conscripts and military personnel. Some Council of Europe member states have also increased their number of border guards. In Estonia and Lithuania, for example, there was a planned increase in the number of border guards, from 2,185 to 3,500 in Estonia and from 4,300 to 6,000 in Lithuania64. In addition, effort at the European Union level is now directed at the elaboration of a common curriculum and the harmonised training of border guards.

ii.       Procedural safeguards

61.       It is the belief of your Rapporteur that although member states have the sovereign right to control their borders, border control measures should be balanced by safeguards to ensure the respect of human rights, including the principle of non- refoulement. Such an approach will ensure legal certainty and the application of the rule of law to asylum and migration.

62.       In order to guarantee that those in need of international protection are not placed at risk, your Rapporteur recommends that all officials involved in a border enforcement role, both on the territory of a member state and extra-territorially, be provided with human rights awareness training, including instruction on their countries obligations under the 1951 Convention on Refugees and other international human rights instruments. Border officials should never decide the substance of an asylum claim, or on return to a "safe third" country. Such decisions should always be referred to the central competent authority. Additionally, the conduct of border officials should be monitored and subject to independent review.

63.       Safeguards to protect the rights of unaccompanied minors/separated children should also be part of each member states border procedures. Unaccompanied minors/separated children should receive particular protection and care. Since they are separated from their parents or their legal/customary carers they are particularly at risk and in a vulnerable situation. There are disparate laws and practice in Council of Europe member states in relation to unaccompanied minors/separated children, which should be harmonised.

64.       One of the most important safeguards to ensure that an unaccompanied child’s best interests are protected is through the appointment of a guardian who nominates or assumes parental responsibility in the absence of the natural parents. This appointment should take place as soon as practicable following the unaccompanied child’s arrival at the border of the member state. Member states vary however, as to the circumstances in which a guardian will be appointed, the time limit for appointment and the responsibilities of a guardian. For instance, in Poland a guardian cannot be appointed where a child does not have the care of his parents because they are in different countries, In Italy the authorities are under a legal obligation to alert the judge for minors to the presence of an unaccompanied minor. The judge proceeds to appoint a guardian but there is no time limit for this appointment. In France, recent legislative amendments provide for the appointment of a guardian for unaccompanied minors whilst they are in the waiting zone of the border. Conversely, in Estonia, Lithuania and the Netherlands, a guardian can be appointed only after an unaccompanied child has applied for asylum.

65.       In order to ensure the safety and fair treatment of unaccompanied minors/separated children your Rapporteur, urges all member states:

5.       Integration65

66.       Migrants make a positive contribution to the cultural diversity and to the social and economic development of member states and to Europe as a whole. Nevertheless they suffer a degree of social and economic marginalisation and discrimination. The debate around migration and asylum adopted by large segments of the political spectrum and the media is often characterised by negative and sometimes hostile attitudes towards migrants and refugees. The events of 11 September 2001 have increased this tendency, adversely impacting on the image of some migrant and ethnic minority groups and increasing the danger of racism, xenophobia and intolerance.

67.       Your Rapporteur believes that a concerted effort is needed on the part of member states to change public perceptions and to integrate migrants holding an authorisation to stay and refugees into the economic, social, cultural, civil and political life of their country. At the same time it should be acknowledged that integration is a two-way process between migrants and the member states majority population.

68.       At the European Union level Member states are being encouraged to approximate the legal status of long-term resident third country nationals to that of Member states’ citizens. In this context it is noted that member states outside of the European Union have not, in the past, focused on the integration of migrants as these member states have tended to be transit countries or even countries of origin. This situation is already changing as these member states receive more legal migrants and as part of accession to the European Union. This imply an enormous effort in terms of resources to be mobilised for the implementation of integration programmes for legal immigrants and refugees, and the need for international agencies and organisations to support this effort, also providing training, facilitating information-sharing, networking and exchange of know-how.

a.       Nationality and citizenship

69.       The citizenship and naturalization criteria and procedures differ considerably amongst Council of Europe member states. Some countries tend to prioritise the principle of blood relation with a citizen of the state (principle of ius sanguinis), whereas others stress the importance of the place of birth (the principle of ius soli). For example, in Germany the new law on nationality66 provides citizenship based on birth in Germany (ius solis) to certain children born of immigrant parents. Similarly in Ireland, the Constitution grants automatic citizenship to all individuals born in the country and many adults are allowed to remain in Ireland as parents of Irish born children67. In most European Union Member states a combination of birth on the territory and the status of the parents is critical to the acquisition of nationality by second-generation foreigners68.

70.       There is an emerging trend in some Council of Europe member states to link permanent residence and naturalization to the successful completion of integration programs. For instance, since 1 July 2002, to gain citizenship in Denmark a foreigner must be tested on their knowledge of the Danish language and Danish “society, legal principles and values”69. In addition, applicants for citizenship will have to sign a statement confirming their commitment to obey Danish laws and respect

Denmark’s basic legal principles, including human rights. Similarly, in the United Kingdom and the Netherlands new legislation has been introduced requiring foreigners to undertake English or Dutch language and society knowledge tests in order to obtain citizenship in those countries70.

71.       The number of years of residence required before naturalization or citizenship can be obtained vary amongst Council of Europe member states. For example, Austria, Greece, Italy, Luxembourg, Portugal, Spain, and Slovenia require 10 years. Denmark now requires 9 years71; Germany and Hungary require 8 years; while Finland, France, Ireland, the Netherlands, Sweden, the United Kingdom, Romania72, Poland, the Czech Republic and Slovakia require 5 years. Belgium only requires 3 years73. Five years is generally considered a reasonable residency requirement for the purpose of naturalization, including by Council of Europe standards.

72.       The acquisition of citizenship has been identified as the “most potent measure of integration into a host society by foreign nationals”74. Not only, does it represent a means of integration but for some people it might actually indicate the end of the integration process per se. Given the obviously importance of naturalization and citizenship to achieving integration, your Rapporteur encourages Council of Europe member states, who have not yet done so to enact legislation allowing migrants to obtain citizenship after a maximum of 5 years residency. Although migrants should be encouraged to undertake integration programs, the successful completion of such programs should not be a prerequisite for citizenship.

b.       Voting rights

73.       In some Council of Europe member states, including Belgium, Denmark, Finland, Ireland, the Netherlands and Sweden75, long-term residents are permitted to stand for or vote in local elections.

74.       Your Rapporteur believes that access to local decision-making processes and the political life of a member state is necessary to enable a two-way process of integration involving migrants and host societies. Member states are encouraged to sign and ratify the Council of Europe’s 1992 Convention on the Participation of Foreigners in Public Life at Local Level, which recommends that foreigners be able to participate in local authority elections after a minimum of two years residency in the member state.

c.       Anti-discrimination and equality

75.       The growth in intolerance and xenophobia in Council of Europe member states cannot be ignored. At the same time many states have adopted measures to promote equality and fight discrimination. Others have introduced measures that promote multiculturalism and acknowledge the presence of minorities, provide support for cultural growth and expression by migrant groups.

76.       For example, Sweden’s integration policy is based on a general principle of Swedish society being ethnically and culturally diverse. The Swedish government is working towards integration permeating all levels of society by introducing stringent legislation to combat discrimination in work and education76. Finland’s commitment to the principles of non-discrimination and equality is incorporated into its Constitution77. Both Sweden and Finland have taken measures to promote ethnic equality and non-discrimination within and by national, regional and local and private organisations.

77.       It is a belief of your Rapporteur that a tolerant inclusive society is a key prerequisite to the successful integration of migrants and encourages Member states to provide political leadership and set the tone in public debate on tolerance and non-discrimination and to implement legislation and action plans to promote ethnic equality and non-discrimination throughout their societies. In addition, your Rapporteur noted with disappointment that the 1990 International Convention for the Protection of the Human Rights of All Migrant Workers and their Families has only been signed by three Council of Europe member states: Azerbaijan, Bosnia and Herzegovina and Turkey78. The 1990 Convention lays down a basic standard of treatment for all documented migrant workers and members of their family, irrespective of their legal status. These rights include equal treatment with nationals in respect of employment conditions, freedom to join a trade union, a right to social security, and the right to family reunification. Member states are encouraged to ratify this treaty and to implement its principles in national legislation and practice.

d.       Access to employment

78.       Although refugees and other migrants are permitted to work in the majority of Council of Europe Member states, there are consistently high levels of unemployment recorded amongst these groups. In the Netherlands, for instance, a foreigner is three times more likely to be unemployed than a national. Amongst western European member states the situation in Denmark, Sweden and Belgium is also critical79. In most countries migrant women are particularly vulnerable to unemployment and migrants, in general, tend to be over represented in the lower paid, less skilled, and less secure sectors of the labour market80. High unemployment and underemployment are key indicators of migrant marginalisation.

79.       The fact that asylum seekers, as discussed in paragraph 45, are often denied access to work during the period they await a decision on their application for asylum only increases their vulnerability to unemployment and marginalisation in the longer term, as well as exploitation from employers and criminal networks.

80.       Access to the labour market for migrants is difficult for numerous reasons. Member states in central and eastern Europe, for example, have generally experienced high rates of national unemployment and housing compatible with securing employment is limited. Other obstacles applicable to all member states include limited skills in the language of the host country and in some cases a lack of appropriate qualifications on the part of migrants or reluctance on the part of member states to recognise foreign qualifications.

81.       Some Council of Europe member states have taken steps to redress the disparity in employment opportunities between migrants and nationals by developing programs to assist migrant participation in the labour market. These programs include language and appropriate skills and vocational training as well as employment interventions such as partnerships between employers and other participants in the labour market.

82.       For example, the Swedish government has established the Swedish Integration Board to implement programs aimed at reducing the disparities between migrants and Swedish-born citizens. Results in the latter half of the 1990s indicated that migrant unemployment was declining though greater awareness amongst organizations and public authorities in Sweden, although the difference between Swedish-born and migrant employment levels remained large81. Sweden intends to continue, amongst other measures, its Swedish language programs for both adult and child migrants82. In addition, Finland regulates the reception and integration of immigrants under its Integration of Immigrants and Reception of Asylum Seekers Act. The Finnish Integration Act provides for individually tailored programs for unemployed immigrants who register as unemployed jobseekers. Each individual program remains in force for 3 years.

83.       Your Rapporteur encourages all Council of Europe member states to, as far as possible, remove obstacles to participation for both asylum seekers and migrants in their labour markets and to support unemployed migrants with integration programs that are tailored to their needs.

e.       Education

84.       The majority of member states generally provide migrants with access to primary and secondary education. However, the level of other educational assistance varies amongst Council of Europe member states. For example, some member states do not fund language and vocational training programs although it should be noted that Lithuania has recently passed a resolution whereby refugees will have a right to a free education, including 190 hours of Lithuanian language studies. This period is extended to 290 hours for illiterate persons and those without a primary education. Other states (such as Belgium, Germany, France, Italy, the Netherlands, Portugal, Sweden and the United Kingdom) grant access to scholarships to migrants with long residence or permanent residence status83.

85.       Your Rapporteur believes that education is a powerful tool in the integration process and greatly improves the chances of a migrant being able to contribute through participation in the labour market. Council of Europe member states are encouraged to ensure that education is accessible to all migrant children and that state-funded language tuition is available to migrant adults and children.

f.       Family reunification

86.       The principle of family unity and respect for family life is firmly established in international law84 and an amended proposal for a Directive on family reunification is currently under discussion in the European Union85.

87.       Although all Council of Europe member states provide for family reunion, the requirements and procedures for family reunion are diverse. Restrictions on family reunification often relate to length of residence, employment status, access to housing and earning capacity, or availability of documentation proving family links. For example, family reunion is only possible in Denmark after 3 years with a permanent permit and in Greece it is only possible after 5 years86. In Austria family reunion is limited under an immigration quota.

88.       Trends in the restriction of the right to family reunification have developed in some Council of Europe member states. In the Netherlands recognized refugees must apply for family reunion within three months or otherwise meet a specified income requirement. After five years ties with children are considered broken, unless the child is missing due to conflict. The time spent in the asylum process is included in this period. In Denmark when a refugee, whose status was granted on the basis of family links in Denmark, gets married to a national from a third country, it will be possible to deport him/her to the spouse’s country if it appears that the "connection to Denmark is no longer strong enough".

89.       A number of other Council of Europe member states have recently included the right to family reunion for recognized refugees in legislation, formalizing practice which was previously unregulated. In Poland, for example, under the amended Aliens Law spouses and minor children can join recognised refugees. Refugees do not need to prove that they can support themselves and their family without relying on public welfare, and families will receive assistance to travel to Poland.

90.       It is the belief of your Rapporteur that refugees and legal immigrants should be entitled to family reunion as soon as possible and at the latest after they have been legally resident in a member state for one year and possess the right of residence for at least one additional year. Family members should be granted the same legal status and rights to the person they are joining and special consideration should be given to the family reunion requirements of unaccompanied children and the elderly.

g.        Social assistance

91.       The majority of Council of Europe member states87 do not discriminate in the provision of social security and other forms of social assistance such as housing, between long-term residents and citizens. However, as already discussed, this is not the case for asylum seekers.

92.       In practice, refugees and other migrants often face considerable difficulty in obtaining affordable housing in all Council of Europe member states, despite shelter being a basic human right and necessity. The consequences of a lack of affordable housing are serious because, unlike nationals, refugees and other migrants do not generally have the advantage of a network of family and friends who they can rely on for assistance. A number of Council of Europe member states are implementing measures to address this problem. For example, the Irish Refugee and Integration Agency has agreed to provide step-down facilities for asylum seekers in communal, full board centres to assist refugees who cannot make the transition to independent accommodation.

93.       Your Rapporteur urges Council of Europe member states to ensure that legal immigrants have equal access to social security and social assistance, including proper access to housing. Your Rapporteur believes that the conditions in which people live greatly determines their health, well-being and ability to engage in a gainful occupation, pursue education and consequently achieve a decent standard of living.

6.        Trafficking and smuggling88

94.       Clandestine migrants and people who wish to seek international protection often find themselves in a very precarious situation, and at the mercy of criminal elements involved in trafficking in human beings. As Council of Europe member states introduce new visa restrictions on the legal entry of foreigners and tighten immigration controls at airports and border crossings, it is increasingly difficult for clandestine migrants and people in need of international protection to reach the region without the assistance of smugglers and traffickers. Ironically, stricter immigration controls appear to increase the market for the services of smugglers and traffickers often with tragic consequences for the people involved. Many trafficked asylum seekers and migrants find themselves forced into prostitution and/or effective slavery to pay off their debt to the trafficker or otherwise dependent on jobs where they suffer severe exploitation and extremely poor working conditions. Others do not survive their extremely risky journey and drown at sea or are suffocated in containers.

95.       There is little in the way of reliable statistics on the problem of trafficking and smuggling but the indications are that there is a growth in smuggling and an increase in the trafficking of women primarily for sexual exploitation89. The reported incidences of deaths in Europe, as a result of human smuggling, in the last few years are too numerous to list. Examples include: the deaths of 58 Chinese citizens who suffocated in a lorry en route to Dover in 2000 and eight dead asylum seekers, most believed to be Kurds from Turkey, in a shipping container at Wexford, Ireland in December 2001.

96.       Other Rapporteurs have already addressed the issue of trafficking in human beings and presented draft recommendations leading to the adoption of, among others, Recommendation 1211 (1993) on Clandestine migration: traffickers and employers of clandestine migrants, Recommendation 1325 (1997) on trafficking in women and forced prostitution in Council of Europe member states, Recommendation 1467 (2000) on Clandestine immigration and the fight against traffickers and Recommendation 1545 (2002) on a Campaign against trafficking in women.

97.       Your Rapporteur notes that existing international instruments dealing with trafficking in human beings and smuggling of migrants, have either not been ratified by all Council of Europe member states, or have not been adequately translated into domestic criminal legislation by a number of them, which is a problem which needs to be addressed. These instruments include The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). State parties to CEDAW are obliged to “take all appropriate measures, including legislation, to suppress all forms of traffic in women”90. The Convention on the Rights of the Child (CRC) requires state parties to combat trafficking in children91. The recently adopted optional protocol to the CRC requires state parties to combat the sale of children92. The International Labour Organisation (ILO) Convention No. 182 on the Worst Forms of Child Labour requires the elimination of “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced and compulsory labour, including forced and compulsory recruitment of children for use in armed conflict”93. Finally, the issue has been recognized in the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementary to the Convention against Transnational Organised Crime94.

98.       The European Council of Ministers has also adopted a Joint Action to combat trafficking in human beings and the sexual exploitation of children95 as well as two programs: STOP (I and II) for the exchange of information between member states on trade in human beings and the sexual exploitation of children96, and DAPHNE, to contribute towards ensuring a high level of protection of children, young persons and women against violence97. Negotiations are currently taking place within the European Union to introduce a short-term residence permit for victims of trafficking who are willing to cooperate with the authorities as witnesses in criminal proceedings.

99.       Despite the importance of these measures, tougher action is required on the part of Council of Europe member states. Your Rapporteur urges member states to introduce and implement domestic legislation criminalizing the smuggling and trafficking of human beings. At the same time, training of law enforcement officials, especially border guards, and the judiciary is of critical importance. This training should convey a two-fold message: recognition of the threat posed by smugglers and traffickers to security and orderly migration, but also acknowledgement that the smuggled and trafficked are human beings entitled to the protection of their basic human rights and to humane treatment. Furthermore, there may be cases in which victims of trafficking need to have access to appropriate counselling and support programmes before being returned to their countries of origin. In addition, for those who accept to co-operate with the police or the judiciary with a view to apprehending the traffickers, appropriate protection programmes should be introduced, and a residence permit of a minimum duration corresponding to the duration of the legal proceedings should be issued. In no case such a residence permit should indicate the reasons why it has been delivered. Victims of trafficking returning, voluntarily or forcibly, to their country of origin or any Council of Europe member states should be entitled to benefit for reintegration programmes and assisted in having access to appropriate housing and if necessary counselling.

7.       Return

100.       The integrity of asylum and migration systems in member states must be maintained by removing those who are unlawfully present in their territory including those who, after a fair assessment of their asylum claims, have been found not to be in need of international protection on the basis of the 1951 Refugee Convention, other international human rights instruments or for other humanitarian reasons.

101.       Your Rapporteur is aware of a number of trends in relation to the removal procedures of some member states. Detention is increasingly being used as a mechanism to facilitate return. The European Commission on Human Rights has condemned the lengthy detention for those awaiting deportation in Greece. Pre-deportation detention is currently unchallengeable under Greek law. Concerns have been expressed that in cases of large-scale arrivals of clandestine migrants and potential asylum seekers collective returns are taking place, and that deportees are not granted access to effective legal remedies to challenge such returns.

102.       The European Commission has recently completed a Green Paper on a Community return policy on illegal residents98. The Green Paper recognises that return should only affect those who have been clearly determined to not be in need of any form of protection and proposes the development of common minimum rules and conditions for pre-removal detention, in particular accommodation standards, regular judicial review of detention and maximum time limits. The Commission’s attempt to put forward common principles and standards “respectful of human rights and dignity” is welcome.

103.       It is the belief of your Rapporteur that a common return policy is desirable but that a number of safeguards, and fair and effective asylum procedures including the application of a full and inclusive definition of a refugee must first be implemented. Returns must also comply with the Council of Europe Committee of Ministers Recommendations on the return of rejected asylum seekers99. This states that mandatory return should take place in a humane manner with full respect for fundamental human rights including, the principle of family unity, and without the use of force. Your Rapporteur also wishes to recalls Assembly Recommendation 1547 (2002) on expulsion procedures in conformity with human rights and enforced with respect for safety and dignity and reiterates the recommendations made herewith.

104.       Your Rapporteur also recognises that a member states return policy has the greatest chance of being sustainable when return is voluntary and is coupled with assistance for the reintegration of returnees. This is best achieved through bi- or multi-lateral agreements laying down the rights and obligations of all parties. Member states are urged to carry out forced returns as a last resort.

105.       Where forced returns are necessary, it is recommended that return policies of member states contain the following safeguards:

106.       In cases where a person does not have any legal title to stay in a Council of Europe member state but cannot be removed for certain reasons such as, the non existence of readmission agreements with the country of origin, the suspension of flights to the country of origin, the impossibility of determining the identity or the nationality of the person to be removed, should be granted temporary leave to remain in the country, renewable for so long as the relevant conditions persist.

107.       Additionally, no unaccompanied minor or separated child should be expelled, rejected or otherwise returned to his/her country of origin or any other country before the appointment of a legal guardian has been made, the opinion of the legal guardian as regards the return of the child has been heard and duly considered, and a formal undertaking has been made by the authorities of the country to which the child is being returned that appropriate care will be provided upon his/her return.

8.       Conclusions and recommendations: what principles for a Council of Europe common policy on migration and asylum?

108.        Your Rapporteur believes that five principles should be at the basis of a Council of Europe common policy on migration and asylum:

i.       flexibility: Council of Europe member states should devise several ways to address the pressure of incoming migration flows and use them with flexibility. For instance, states should make sure that a certain number of temporary work permits, including seasonal work permits are issued, and that a certain number of skilled and non-skilled immigrants are admitted.

ii.       Transparency of law and policy: potential migrants should be informed about the legal possibility of emigrating to Council of Europe member states and about the situation that they would find there in terms of social security, integration programmes, access to the labour market. This information should be objective, widespread and conducted in countries of origin as well as transit.

iii.       Clarity, accessibility and effectiveness of legal remedies: there should always be the possibility of appealing against a migration decision, ranging from the refusal to grant a visa to the issuance of an expulsion order. The existence of legal remedies should be made known to potential beneficiaries through information in a language that they understand and should be given wide publicity. The quality of legal advice and representation on migration issues should be monitored. Migrants, including people in need of international protection, who do not have the resources to pay for a lawyer, should be given access to free legal advice and representation. This advice and representation should allow the beneficiary to make out in full his/her reasons and arguments.

iv.       Decency: all migrants who are allowed to stay in a Council of Europe member state, on a temporary or permanent basis, should be given the means of conducting a decent life.

v.       Respect of human rights: Council of Europe member states should comply fully with their international obligations under the 1951 Geneva Convention on Refugee Status as well as the European Convention on Human Rights.

109.       Unless urgent measures are taken to create a more equal and peaceful world, Europe, with its declining domestic birth rate and increasing life expectancy, is unlikely to see any significant reduction of asylum seekers or other migrants in the coming decades. In fact, quite the opposite.

110.       We can, therefore, only try to address this fact and manage better the unavoidable process of change. If the assessments that everyone is making are accurate, then the political responses to these developments will have to be better directed. Pandering to certain views will only reinforce the prejudices that are already all too commonplace. We should strongly resist knee-jerk reactions and the creation of asylum policies which are essentially inspired by base nationalism.

111.       The worst-case scenario is the undercutting of standards across Europe to a lowest common denominator which other states around the world will then imitate. A brave and visionary Europe, on the other hand, is well placed to act and take a principled, positive lead. If solidarity and collaboration can be fostered in place of insularity and competition, that process could commence almost immediately by instituting joint processing of asylum applications. We could then move on to yet more ambitious programmes across the whole of Europe, whose benefits would be clearly visible to all.

112.       It is time not only to teach about the importance of international human rights – though the Council of Europe must, of course, continue to stand up for that – it is time also for the Council of Europe to insist that member states themselves honour these more thoroughly and enthusiastically at home. It is time to move away from talk of an asylum crisis to talk of the opportunities with which we are presented. This would be not only to the benefit of the whole of Europe, but also to the benefit of those elsewhere who are so much less fortunate than most of us here on this continent.

Reporting Committee: Committee on Migration, Refugees and Demography.

Reference to committee: Doc. 9201, Ref. No. 2652 of 28.9.2001.

Draft recommendation unanimously adopted by the Committee on 30 January 2003.

Members of the Committee: Mr Iwiński (Chairperson), Mr Einarsson (1st Vice-Chairperson), Mrs Bušić (2nd Vice-Chairperson), Mrs de Zulueta (3rd Vice-Chairperson), Mrs Akgün, MM. Akhvlediani, Aliyev G. (alternate: Aliyev B.), Arabadjiev, de Arístegui (alternate: Agramunt), Arzilli, Bernik, Van den Brande, Branger, Braun, Brînzan, Brunhart, Cabrnoch, Çavusoğlu M., Christodoulides, Cilevičs, Çörüz, Danieli, Debarge (alternate: Salles), Dmitrijevas, Dokle, Donabauer, Dubié, Mrs Err, Mrs Filipiová, Mr Freiherr von und zu Guttenberg, Mrs Frimannsdóttir (alternate: Mr Möller), MM. Grzesik, Grzyb, Gülçiçek, Hancock, Higgins, Mrs Hoffmann, MM. Hovhannisyan, Ilaşcu, Ivanov, Lord Judd, MM. Karpov, Kerimo, Mrs Kósá-Kovács, MM. Koulouris, Kulikov, Kvakkestad, Laakso, Le Guen, Liapis, Loutfi (alternate: Kirilov), Matviychuk, Mrs Nabhoz-Haidegger, MM. Naro, Nasufi, Nessa, Popa, Prijmireanu, Puche, Pullicino Orlando, Rakhansky, Reymann, Mrs Shakhtakhtinskaya, MM. Slutsky, Soendergaard, Mrs Stoisits, MM. Stübgen, Tekelioğlu, Tkáč, Vera Jardim, Mrs Vermot-Mangold, MM. Vieira, Wilkinson, Wray, Yáñez-Barnuevo, Zavgayev, Zhirinovsky, Mrs Zwerver.

N.B. The names of those members present at the meeting are printed in italics.

Secretariat of the committee: Mr Lervik, Mrs Nachilo, Mrs Sirtori-Milner.

1 Paragraph 13, Presidency Conclusions, Tampere European Council, SI (1999) 800, 15 and 16 October 1999.

2 Proposal for a Council Regulation establishing the criteria and mechanisms for determining the member State responsible for examining an asylum application lodged in one of the member States by a third country national, MEMO/01/282, July 2001. A Council Regulation for the establishment of the EURODAC system for comparison of fingerprints of applicants for asylum was previously adopted (2000/2725/EC, 11 December 2000).

3 Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, COM 578, 20 September 2000 and COM (2002) 326 final, 18 June 2002.

4 Proposal for a Council Directive on minimum standards on the reception of applicants for asylum in Member States, COM (2001) 181, 3 April 2001.

5 Proposal for a Council Directive on minimum standards on the qualification and status of third country nationals and stateless persons as refugees or as persons otherwise in need of international protection, COM (2001) 510, 12 September 2001.

6 Two pieces of legislation relating to asylum have been formally adopted since the Tampere summit, the decision to establish a European Refugee Fund (Council Decision establishing a European Refugee Fund, 2000/596/EC, September 2000) and a directive on temporary protection (Council Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons, 2001/55/EC, 20 July 2001) however neither are integral to the development of a common asylum system.

7 Under Article 63 of the Treaty of Amsterdam, the 5-year time limit commenced on the date of the Treaty’s entry into force in May 1999.

8 Communication on a common asylum procedure and uniform status for refugees, COM (2000) 755 final, November 2000 and Communication on the common asylum policy, introducing an open co-ordination method, COM (2001) 710 final, November 2001.

9 A High Level Working Group of civil servants from each country was established in 1998 to develop a comprehensive policy on migration and asylum in an international context. The High Level Working Group’s mandate has now been updated to take forward the Seville Summit Conclusions, which emphasised the need for an integrated and strategic approach to migration policy within the European Union.

10 http://europa.eu.int

11 COM (2000) 757 final, 22.11.2000.

12 COM (2001) 387 final, 11.07.2001.

13 COM (2000) 624 final, 10.10.2000 and COM (2002) 225 final, 02.05.2002.

14 COM (2001) 127 final, 13.3.2001.

15 Proposal for a Council Directive on the conditions of entry and residence of third country nationals for the purpose of paid employment and self employed economic activities, COM (2001) 386 final, 27.11.2001.

16 Paragraph 42, Presidency Conclusions, Laeken European Council, December 2001.

17 Council Directive on the mutual recognition of decisions on the expulsion of third country nationals (2001/40/EC), 28 May 2001.

18 Council Directive supplementing the provisions of the Convention implementing the Schengen Agreement of 14 June 1985 (2001/51/EC), 28 June 2001.

19 COM (2001) 672 final, 15.11.2001.

20 On 28 February 2002, the Justice and Home Affairs Council approved the proposed action plan with some amendments.

21 COM (2002) 71 final, 11.02.2002.

22 COM (2002) final, 10.04.2002.

23 Article 6(4) Implementing Decree 203/95 to the Asylum Law 9/1994.

24 Section 4 of the Law on Refugees (1999). Unofficial translation available at http://www.unhcr.ch

25 Section 12(6) of the Government Decision No.622 of 27 June 2001 on the implementation of the Refugee Act, published in the Official Gazette of 18 July 2001.

26

27 .

28 UNHCR Population Data Unit at http://www.unhcr.ch (Statistics). The recognition rate includes ‘otherwised closed cases’.

29 The information provided in this and the following paragraph has been extracted from the UNHCR Statistical Yearbook 2001, published in October 2002.

30 In 1999, amongst European Union states, Denmark, Finland, Germany, Greece, The Netherlands, Portugal, Spain and Sweden granted more complementary forms of protection than Convention refugee statuses.

31 Including persons benefiting from protection against refoulement on the basis of the European Convention for the Protection of Human Rights and Fundamental Freedoms or other international agreements and persons fleeing armed conflict with no specific element of persecution.

32 The new German Immigration and Asylum Bill does however recognise persecution by non-state agents.

33 Known as the "accountability approach".

34 France has recognised the existence of de facto authorities in Southern Lebanon, Liberia and Afghanistan. But denies asylum to applicants from Somalia where it considers that no de facto authorities exist. See further ELENA European Legal Network on Asylum, Research Paper on Non-State Agents of Persecution, 2000 at http://www.ecre.org

35 R. v. Secretary of State for the Home Department ex. parte Adan (House of Lords) [1998] 2 All ER 453

36 Section 1 of the Refugee Act 1996, as amended by Section 11(1) of the Immigration Act 1999 and Section 9 of the Illegal Immigrants (Trafficking) Act 2000.

37 Islam v. Secretary of State for the Home Department and R. v. IAT & Another ex. parte Shah [1999] Imm AR 283; [1999] 2 AC

38 See Jean-Yves Carlier et.al, Who is a Refugee ? A Comparative Case Law Study, 1997 at pages 412-415.

39 Decision of Federal Asylum Senate of 21 March 2002.

40 COM(2001)510 final, 12.09/2001.

41 As a corollary to non-state agents of persecution, the Directive allows for non-states agents of protection such as international organisations and stable quasi-state authorities.

42 Press release of the 2469th Council meeting, 28-29 November 2002.

43 Commission proposal for a Directive on minimum standards for conditions of reception of asylum seekers COM (2001)181, 3.04.2001.

44 On 29 January 2001, there were 1,410 people detained under the Immigration Act who were seeking asylum, amounting to 77 percent of all immigration detainees. See Justice, Asylum: Changing policy and practice in the UK, EU and selected countries, 2002, at page 30.

45 Immigration Act 1971, Sch. 2, para. 16.

46 A system of automatic bail hearings was to be implemented under the Immigration and Asylum Act 1999 but was not brought into force and it never will be accordingly to the 2002 White Paper (para 4.83).

47 See Justice, Asylum: Changing policy and practice in the UK, EU and selected countries, 2002, at page 29.

48 House of Commons Hansard, 30 November 2001.

49 Immigration Appeal (Procedure) Rules were amended with effect from 7 January 2002.

50 See Justice, Asylum: Changing policy and practice in the UK, EU and selected countries, 2002, at page 31.

51 See UNHCR, Reception Standards in the European Union, July 2000 at page 96 and ECRE, Study on the availability of free and low-cost legal assistance for asylum seekers in European States, 2001at page 133.

52 Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, Brussels, COM(2002) 326 final, 18.6.2002.

53 ECRE, Study on the availability of free and low-cost legal assistance for asylum seekers in European States, 2001.

54 Council of Europe, Parliamentary Assembly, Recommendation 1236, Right to Asylum; Report by the Committee on Migration, Refugees and Demography, Protection and reinforcement of the human rights if refugees and asylum seekers in Europe, Doc. 7783, 26 March 1997.

55 See the bulletin of the Spanish House of Commons (Cortes Generales) for the meeting of 25 June 2002, where the First-Deputy of the Ombudsman (Adjunta Primera del Defensor del Pueblo) mentioned that the duration of legal assistance provided by lawyers to aliens having been served with an expulsion order in the Canary Islands was, according to the case, 2 minutes and 52 seconds, 2 minutes and 16 seconds, 1 minutes and 52 seconds and so on (Diario des sesiones de las Cortes Generales, Comisiones Mixtas, Año 2002, VII Legislatura, Número 96, page 2279).

56 The Constitution of the International Organization for Migration (IOM) provides the following definition of migrant: "The term migrant (…) should be understood as covering all cases where the decision to migrate is taken freely by the individual concerned, for reasons of personal convenience and without intervention of an external compelling factor". From the above definition, it follows that by "migrant" one is not referring to refugees, exiles or others forced or compelled to leave their homes. This distinction is not made, as issues of border control, integration and smuggling and trafficking affect asylum-seekers, refugees and more traditionally defined migrants.

57 IOM, World Migration Report 2000.

58 Eurostat, Yearbook, 2001.

59 IOM, World Migration Report 2000, p.193.

60 IOM, World Migration Report 2000.

61 Committee on MigrConference on the situation of illegal migrants in Council of Europe member states, 13 December 2001.

62 IOM, World Migration Report 2000.

63 Reuters, 29.04.02.

64 IOM, World Migration Report 2000, p.178.

65 Integration in a migration context can be defined as the is majority population and a minority group gradually moving towards equality and becoming a single population unit whist the minority group also maintains aspects of their own cultural identity.

66 See www.gesetze-aktuell.de.

67 The Irish Government is currently contesting the right of the parents of Irish born children to remain in the State arguing that the integrity of the immigration and asylum procedure is at stake and that the rights of the children are best served with their parents in their country of origin. In early 2002 the High Court ruled in favour of the State. The case has been appealed to the Supreme Court and a judgment is imminent.

68 K. Groenendijk, E. Guild and R. Barzilay, Centre for Migration Law, University of Nijmegen, Netherlands, The Legal Status of Third Country Nationals who are Long-Term Residents in a Member State of the European Union, April 2000.

69 Aliens Law as amended in 2002. Persons over 65 years will no longer be exempt from the language requirement.

70 The new Nationality, Immigration and Asylum Act, 2002 in the United Kingdom contains a waiver for older and disabled people.

71 However, refugees will have the right to apply after eight years.

72 Recognised refugees in Romania are subject to an automatic expiration period of 3 years with a possible extension of two years. This renders most refugees ineligible to apply for naturalisation.

73 See K. Groenendijk, E. Guild and R. Barzilay, Centre for Migration Law, University of Nijmegen, Netherlands, The Legal Status of Third Country Nationals who are Long-Term Residents in a Member State of the European Union, April 2000 and UNHCR, European Series: Integration Rights and Practices with Regard to Recognised Refugees in the Central European Countries, Volume 5, No. 1, July 2000.

74 Council of Europe, CDMG(93), 28 September 1993.

75 See K. Groenendijk, E. Guild and R. Barzilay, Centre for Migration Law, University of Nijmegen, Netherlands, The Legal Status of Third Country Nationals who are Long-Term Residents in a Member State of the European Union, April 2000. In Portugal and Spain this right has been granted on the basis of reciprocity and in the United Kingdom it mainly applies to Commonwealth citizens.

76 Measures to Counteract Ethnic Discrimination in Working Life Act, 1999 and Equal Treatment of Students in Higher Education Act, 2001.

77 Finnish Constitution (731/1999).

78 Adopted by General Assembly resolution 45/158 of 18 December 1990 (not in force). Azerbaijan and Bosnia and Herzegovina have acceded and Turkey has signed the Convention.

79 OECD, Trends in International Migration, 1999.

80 IOM, World Migration Report 2000, p. 205.

81 Council of Europe, European Committee on Migration, Swedish integration policy for the 21st century,4 September 2002.

82 See Council of Europe, European Committee on Migration, Swedish Policy on National Minorities, 4 September 2002.

83 See K. Groenendijk, E. Guild and R. Barzilay, Centre for Migration Law, University of Nijmegen, Netherlands, The Legal Status of Third Country Nationals who are Long-Term Residents in a Member State of the European Union, April 2000.

84 Convention on the Rights of the Child, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and the Convention for the Protection of Fundamental Rights and Freedoms.

85 COM (2002) 225 final, 02.05.2002.

86 See K. Groenendijk, E. Guild and R. Barzilay, Centre for Migration Law, University of Nijmegen, Netherlands, The Legal Status of Third Country Nationals who are Long-Term Residents in a Member State of the European Union, April 2000.

87 Exceptions include Austria, Greece and Luxembourg.

88

89 IOM, World Migration Report 2000, p. 181-4.

90 CEDAW, UN GA Res 34/180, 18 December 1979 (Art. 6).

91 CRC, UN GA Res 44/25, 20 November 1989 (Art. 34 and 35).

92 2000 Optional Protocol to the CRC on the sale of children, child prostitution, and child pornography, UN GA Res 54/263, 25 May 2000 (not yet in force).

93 ILO Convention No.182 (Art. 3a), ratified by Bulgaria, Croatia and Romania. ILO Convention No. 29 concerning forced labour (Art 1 and 4). ILO Convention No. 105 concerning the abolition of forced labour (Art. 1 and 2).

94 15 December 2000. See: http://www.uncjin.org. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons and the UN Protocol against the Smuggling of Migrants by Land, Air and Sea were presented in Palermo.

95 Joint Action 97/154/JHA of 24 February 1997.

96 Joint Action 96/700/JHA of 29 November 1996 and 2001/514/JHA of 28 June 2001.

97 Decision No. 293/2000/EC of the Euopean Parliament and of the Council of 24 January 2000.

98 COM (2002) 175 final, 10.04.2002.

99 Recommendation No. R (99) 12.