Common policy on migration and asylum

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Common policy on migration and asylum
Recommendation 1624 (2003)

Doc. 10217
21 June 2004

Reply from the Committee of Ministers
adopted at the 888^th meeting of the Ministers’ Deputies (16 June 2004)

1.         The Committee of Ministers has considered Parliamentary Assembly Recommendation 1624 (2003) on a common policy on migration and asylum and brought it to the attention of the governments of its member states. It also transmitted it to the European Committee on Migration (CDMG), to the Ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR), to the European Population Committee (CAHP), to the Council of Europe Development Bank and to the European Commission against Racism and Intolerance (ECRI). The reply takes account of the opinions of the CAHAR, ECRI and the CDMG, appended to this reply. The opinions provide more detailed information on the activities of these Council of Europe sectors in the fields of migration and asylum.

2.         A common standard policy based on core rights and procedural safeguards (a model for a Council of Europe common policy on migration and asylum) could be justified from the point of view that persons who are not refugees are seeking to enter countries through the asylum channel or refugees may even resort to migrant smugglers.

3.         Nonetheless, the Committee of Ministers considers the drawing up of such a model inadvisable. The core rights and procedural safeguards for both asylum seekers and migrants are already reflected in the European Convention on Human Rights and its relevant case law. Many guarantees mentioned in the Recommendation have already been thoroughly dealt with and will continue to be assured by the European Court of Human Rights.

4.         There is a distinction between refugees and migrants. Having regard to the very specific situation of the refugees, a common model as proposed might lower the standards for their protection. In order to provide them with better protection, the Committee of Ministers has adopted two European agreements and a number of recommendations that provide member states with common standards in the field of refugee protection. The Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) has taken the initiative to reinforce the follow up to these recommendations. The European Commission against Racism and Intolerance (ECRI) continues to follow up the fair procedures mentioned in paragraph 9 of the Recommendation in its country-specific reports. The Council of Europe Commissioner for Human Rights also pays much attention to these problems.

5.         Asylum policy is a humanitarian policy and should not be confused with an orderly migration management.

6.         However, the harmonisation of the policies in the field of migration will contribute to the achievement of greater unity among member states of the Council of Europe. It should also be recalled that the Council of Europe recommendations in the field of migration are traditionally taken into consideration by the European Commission in its process of drafting directives on similar subjects. The Migration Management Strategy adopted by the European Committee on Migration (CDMG) provides a framework for a coordinated action, from a human rights and human dignity perspective. The recently established Political Platform constitutes a solid basis for harmonising national approaches to migration and the development of synergies with the EU policies under the Common Asylum and Migration Policy.

7.         The CDMG is undertaking a study on the feasibility of establishing an Agency on Migration, which, if established, would address the root causes of forced migration and other migratory movements in close co-operation with other international actors.

8.         As regards the Assembly’s opinion on the accessibility of databases held on foreign nationals to all migration services, the Committee of Ministers considers that this does not seem advisable if this is intended to refer to personal data held in member states on foreign nationals residing on their territory. However, if the reference is made to general material on migration requirements, the Committee of Ministers shares the Assembly’s opinion.

9.         The Committee of Ministers fully shares the opinion of the Parliamentary Assembly, as regards a “common package of information accessible to potential migrants”.

Appendix 1 to reply

Opinion prepared by the Bureau of the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees, and Stateless Persons (CAHAR) on Parliamentary Assembly Recommendation 1624 (2003) on a common policy on migration and asylum

In its Decision No. CM/856/3.1, the Committee of Ministers gave ad hoc terms of reference to the CAHAR to give an opinion on the above recommendation of the Parliamentary Assembly. The CAHAR adopted the following opinion by means of a written consultation procedure initiated by its Bureau on 9 December 2003.

As the CAHAR understands the recommendation, the common policy on migration and asylum referred to in the recommendation consists inter alia of the elaboration of a set of rules or principles which would be applied to migrants in Europe regardless of the reasons underlying their migration.

The CAHAR paid particular attention to paragraph 9 of the recommendation where the Parliamentary Assembly recommends that the Committee of Ministers “instruct its relevant committees to draw up a model for a Council of Europe common policy on migration and asylum”.

Indeed, there is a growing nexus between refugee protection and migration policies. This nexus appears especially when one considers that persons who are not refugees are seeking to enter countries through the asylum channel and, on the other hand, that refugees may move within a broader mixed flow or even resort to migrant smugglers as a way to leave their country. From this point of view, a common standard policy based on core rights and procedural safeguards could be justified.

However, the CAHAR considers the drawing up of such a model to be inadvisable. In CAHAR’s opinion the core rights and procedural safeguards for both asylum seekers and migrants are already reflected in the European Convention on Human Rights and its relevant case law concerning, in particular, Article 3 (non-refoulement principle, conditions of detention) and Article 5 (legality of detention, information in a comprehensive language, speedy access to a judge and guarantee against undue prolongation) of this Convention.

In this context the CAHAR would like to underline the fact that many guarantees mentioned in the recommendation have already been thoroughly dealt with and will continue to be dealt with for both asylum seekers and migrants by the European Court of Human Rights.

Moreover, establishing a common policy on asylum and migration may risk lowering the standard of protection of refugees. Consequently, if the elaboration of a common policy on migration and asylum is to be undertaken, one should always have in mind the distinction between refugees and migrants. Indeed, refugees benefit from international protection under the 1951 Convention and its 1967 Protocol because they flee persecution. Bearing in mind the special situation of asylum seekers and with a view to providing them with better protection, the Committee of Ministers has adopted, on the initiative of the CAHAR, two European agreements and a number of recommendations that provide member states with common standards in the field of refugee protection. The CAHAR has also taken the initiative to reinforce the follow up to these recommendations.

In addition to what is stated above, the CAHAR would like to stress that with regard to the following aspects of the recommendation of the Parliamentary Assembly, existing standards in the field of asylum should not be put at risk by the proposed common policy on asylum and migration:

1.    Border control

The CAHAR recalls Recommendation No. R (98) 15 of the Committee of Ministers on the training of officials who first come into contact with asylum seekers, in particular at border points. This recommendation foresees adequate training of those responsible for enforcement of border control in human rights and refugee law.

2.    Detention

The CAHAR would like to draw attention to Recommendation No. R (2003) 5 of the Committee of Ministers on measures of detention of asylum seekers. This Recommendation contains numerous measures regulating detention procedures and conditions of detention, for example concerning possible grounds of detention, length of detention or access to legal counsellor or a lawyer.

3.    Fairness and duration of procedures. Access to interpretation and legal advice and representation in the context of immigration and asylum

The CAHAR also recalls that various Recommendations of the Committee of Ministers contain procedural safeguards in the field of asylum, in particular Recommendation (81) 16 on the harmonisation of national procedures relating to asylum, Recommendation (2003) 5 on measures of detention of asylum seekers, Recommendation (94) 5 on guidelines to inspire practices of the member states of the Council of Europe concerning the arrival of asylum seekers at European airports and Recommendation (2001) 18 on subsidiary protection.

4.    Expulsion

The CAHAR draws attention to Recommendation No. R (98) 13 of the Committee of Ministers on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights and Recommendation No. R (99) 12 of the Committee of Ministers on the return of rejected asylum seekers.

The CAHAR also recalls that a Working Party on expulsion procedures has been established with the task of drafting guidelines on expulsion procedures, concerning rejected asylum seekers as well as other aliens subjected to expulsion.

5.    Minors

Concerning detention of minors, the CAHAR recalls that Recommendation (2003) 5 of the Committee of Ministers on measures of detention of asylum seekers contains special articles for minors (the detention of a minor is possible but should be “a measure of last resort and for the shortest time possible”).

Appendix 2 to reply

Opinion of the European Commission against Racism and Intolerance (ECRI) on Parliamentary Assembly Recommendation 1624 (2003) on a common policy on migration and asylum

The Recommendation 1624 (2003) of the Parliamentary Assembly on “Common policy on migration and asylum” was transmitted to the Bureau of ECRI, which provided the following comments:

The issues connected to immigration and asylum are covered by ECRI in its country-by-country monitoring work from three main perspectives.

Firstly, from the perspective of the general climate of opinion concerning asylum seekers, refugees and immigrants, ECRI has frequently commented on links between more restrictive immigration and asylum regulations and practices, and an exacerbation of negative public opinion towards these groups.

ECRI also examines specific aspects of asylum and immigration policy (including legislation) and practice, as regards discriminatory treatment, such as unjustified differential treatment of individuals belonging to different groups of asylum seekers, refugees or immigrants.

Finally, ECRI examines specific aspects of asylum and immigration policy (including legislation) and practice, in cases when such aspects have been consistently brought to ECRI’s attention by various interlocutors and sources of information as being particularly problematic.

In tackling issues related to immigration and asylum policy and practices, ECRI is not questioning the right of States to control their migration flows. ECRI’s approach to these issues primarily aims to ensure that the persons who are asylum seekers, refugees or immigrants are not subjected to any violations of their fundamental rights and freedoms incompatible with the principles defined by the European Convention on Human Rights, the Convention relating to the Status of Refugees and other relevant human rights conventions.

ECRI’s Bureau welcomes the content of Recommendation 1624 (2003) of the Parliamentary Assembly, of which most of the points are in line with ECRI’s analyses and recommendations.

ECRI’s Bureau considers notably that the elements contained in paragraphs 5 and 7 of the Recommendation are particularly important from the viewpoint of the fight against racism and intolerance.

ECRI’s Bureau wishes to recall the importance of the anti-discrimination perspective which should be present in any approach aimed to deal with issues of immigration and asylum. It also stresses that immigrants without legal status, asylum seekers, refugees and the victims of trafficking in human beings are particularly vulnerable to racism, xenophobia and intolerance.

Most of the points dealt with in Recommendation 1624 (2003), notably in paragraph 9 concerning procedures, have given rise to recommendations from ECRI in its country-specific reports, and continue to be dealt with by ECRI in the framework of the implementation of the third round of its country-by-country approach.

Appendix 3 to reply

Opinion of the European Committee on Migration (CDMG) on Parliamentary Assembly Recommendation 1624 (2003) on a common policy on migration and asylum

1.         The CDMG agrees with the Parliamentary Assembly that equal rights and opportunities should be enjoyed by immigrants in all member States of the Council of Europe. It believes that harmonisation of the policies in the field of migration will contribute to the achievement of greater unity among member States of the Council of Europe. Landmark reports prepared by the CDMG on “Diversity and cohesion: new challenges for the integration of immigrants and minorities” and on “Framework for integration policies” have underlined that equal rights and opportunities are common values inherent to a democratic society.

2.         The CDMG also agrees with the Parliamentary Assembly 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 joining their families in the context of family reunification procedures, or other categories of non-forced migrants, asylum seekers, refugees or other people in need of international protection. The CDMG has already prepared, for the attention of the Committee of Ministers, recommendations on family reunification (CM Rec(2002) 4) and on security of residence of long-term migrants (CM Rec(2000)15). A recommendation submitted to the Committee of Ministers for adoption in 2004 on the access of non-nationals to employment in the public sector aims at combating any form of discrimination or/and institutional discrimination regarding employment of non-nationals in the public sector. A draft recommendation on the legal status of migrants admitted for employment is to improve the situation of economic migrants in member States. What seems to be a sectoral approach followed by the CDMG in the field of policy development is a process aiming at obtaining at the end of the road an “integrated approach to migration” dealing with every aspect of migration. The CDMG recalls that Council of Europe recommendations in the field of migration are traditionally taken into consideration by the European Commission in their process of drafting directives on similar subjects.

3.         Regarding the Parliamentary Assembly opinion that “this approach would be greatly assisted if the network of databases held on foreign nationals were accessible to all migration services thus ensuring a speedier response”, the CDMG is of the opinion that if it is intended to refer to personal data held in Member States about foreign nationals residing in that State, then there would certainly be issues about making that information freely available to agencies in other Member States. If, however, the reference is to general material on migration requirements, the PA opinion actually supports the philosophy the CDMG is intending to promote through the political platform. On the other hand, the CDMG cannot but agree with the Parliamentary Assembly that “a common package of information should be accessible to potential migrants”. The CDMG is convinced that this in an important element for the promotion of legal channels of labour migration. The 7th Ministerial Conference of Ministers responsible for Migration Affairs (Helsinki, 2002) undertook to make available to potential migrants, where possible in an appropriate language, complete and clear information on the conditions of admission, residence and work as well as on living conditions and culture of the country of destination, its political and legal system (regulations on migration) and situation on the work market.

4.         The CDMG recalls that the Migration Management Strategy, adopted by the European Committee on Migration (CDMG), provides a framework for a coordinated action, from a human rights and human dignity perspective, in many of the fields identified under item 9. Furthermore, the recently established Political Platform constitutes a solid forum for the synchronisation of national approaches to migration and the development of synergies with the EU policies undertaken within the framework of the Common Asylum and Migration Policy.

5.         The CDMG agrees that a common policy on migration and asylum should be based on core rights and procedural safeguards. However, member States should make clear that the aims of these policies are distinct: in the case of asylum the aim is humanitarian, whereas in the field of migration, economic and societal aspects are to be taken into account for the sake of an orderly migration management. Failure to do so may result in an upsurge of xenophobic attitudes towards foreigners.

6.         Finally, the CDMG is undertaking a study on the feasibility of establishing an Agency on Migration, which, if established, would address the root causes of forced migration and other migratory movements in close co-operation with other international actors (European Union, OECD, ILO, IOM).