Björg Thorarensen

16th Nordic Human Rights Symposium

Selfoss , 2-4 September 2002

The European Union, Schengen and Asylum Seekers

My task here today is to discuss an extensive and complex topic, namely the EU, Schengen and asylum seekers. Much has been written and discussed in relation to this subject, which has a number of various interesting aspects that arise in connection with human rights. It is of course impossible to give an overview over this field in a short presentation. Instead, I have chosen some aspects, which I find of particular interest and I hope that may inspire the discussions of the topic. These aspects touch upon and intertwine questions in relation to EU policy in asylum law, the impact of the Schengen agreement and related EU legislation and current development in the field of human rights of asylum seekers within the EU.

Firstly, I would like to discuss the impact of the Schengen agreement on national policies and practice regarding asylum seekers and immigration. The Schengen agreement only came into force vis-à-vis the Nordic countries in the spring of 2001 so it might be interesting to contemplate and discuss how this has affected the well-established Nordic systems dealing with asylum seekers.

Secondly, I will discuss briefly the question of judicial control in relation to the application of the Schengen agreement and national legislation based on it. Which judicial body is in the position to decide whether the application of Schengen rules violates general standards in relation to the rights of asylum seekers?

Thirdly, it is inevitable, when discussing the impact of Schengen on asylum seekers, to discuss the Dublin Convention of 1990. This Convention deals with the responsibility of the EU states for the processing of an application for asylum and has radically changed the nature of the procedure within national systems of Schengen states when the authorities deal with applications of asylum.

Forthly and lastly, I think it is interesting to focus on the approach of the Union towards the rights of asylum seekers, specifically in the light of the European Charter of Fundamental Rights. The Charter, adopted in Nice in December 2000, has given rise to numerous questions regarding future development of human rights within the Union. The Charter, although not legally binding, may also have a special bearing on the rights of asylum seekers within the Union. This is even more interesting issue, in the light of the fact that Member States of the European Union are now in the process of speeding up of current legislative work on the framing of a common policy on asylum and immigration, where common standards for qualification of status as refugees will be designed, as well as common standards for asylum procedures.

But let me start by focusing on the impact of the Schengen Agreement on the Gradual Abolition of Checks at their Common Borders, from 14 June 1985, made between the Benelux countries, Germany and France. In 19 June 1990 the Schengen implementing agreement was adopted between the same states. These two agreements laid the foundations for co-operation between European states in this area. According to the Treaty of Amsterdam of 1997, the Schengen implementing agreement, decisions adopted by organs established within the Schengen co-operation, and a whole body of legislations, generally referred to as the Schengen aquis, were incorporated into the Union Legal Order, instead of being multilateral treaties between European States. Accordingly, all the Member States of the Union, apart from the United Kingdom and Ireland, participate in the Schengen co-operation. Iceland an Norway participate in this co-operation on the basis of a special agreement with the European Union of 18 May 1999.

The Schengen agreement has had quite an extensive effect on practice regarding asylum seekers and immigration within the Union. It aims at securing the free movement of persons within the Schengen area by abolishing border control between Member States, but at the same time to strengthen the border control between the Scengen area and third countries. This requires the Member States to adopt harmonised standards and rules in relation to border control vis-à-vis third countries, and not the least in the field of issuing of visa into the Schengen area and residence permits. The establishment of the so-called Schengen information system, SIS, is an important feature in the Schengen co-operation and when it comes to questions concerning asylum, the common rules concerning the establishment of responsibility for applications for asylum provided for the Dublin agreement are of major importance.

On the 25 March 2001 the Schengen agreement came into force in all the Nordic countries. This was only possible after all the countries had made the necessary amendments in their legislation. Icelandic authorities based their legal amendments to a large extent on the Norwegian model, since both countries are in the identical position of not being members of the Union. The legal amendments required for the participation can be said to have been mainly the following. Firstly, the adoption of Act no 16/2000 on the Schengen information system, so-called SIS. Secondly, various amendments in law, relating to extradition of persons and mutual legal assistance in the field of criminal law, and thirdly amendments on the Act on the Supervision on Aliens No. 45/965. This act has now been replaced by a new comprehensive Act on Aliens, No. 96/2002, adopted last spring.

It is clear that when the Scengen aquis was brought into the Union legal order, the Member states of the agreement brought important aspects of future decision-making and judicial review in this field within the framework of either the Union or the European Community Treaty. Accordingly, the Schengen acquis will develop in accordance with the provisions found in these Treaties, located in Title IV of the European Community Treaty as regards visas, asylum, immigration and other policies related to Free Movement of persons or Title VI of the Treaty on European Union, as regards Police and Judicial cooperation in criminal matters. This may eventually result in the judicial review of the European Court of Justice on decisions related to the application of the Schengen aquis.

However, in the recent years, no such harmonised international control or application of the Schengen agreement has been developed in reality. Therefore, the application and interpretation of the Schengen Implementing Agreement and legislation deriving from it, has been in the hands of national authorities of the State parties. The legal remedies available to individuals when they want to challenge legislation deriving from Schengen have only been those which the national legal systems provide. And the national legal systems and applications and interpretation of the Schengen aquis may actually differ quite a lot on such issues.

It is interesting to study further in this context the impact of the SIS system in relation to immigration and asylum. The aim of the SIS-system is to be a joint information system for all the countries in the Schengen co-operation. The Schengen information system consists of a national section for each Member state and a technical support functions and central data base located in Strasbourg France. Each member state establishes a national section connected to the SIS-system where data can be submitted to the central data base, accessible to the authorities of all the other Member states.

According to Article 95-100 of the Schengen Implementing Agreement, the information contains to a large extent personal data. This has required the adoption of strict rules concerning protection of personal data in the system, and the information is only accessible to the police and immigration authorities. This information may for example concern request for arrest and extradition of persons and what is more important for our discussion here today, according to Article 96 a specific file is operated on socalled “undesireable” aliens from third countries. Thus, data on aliens for whom an alert has been issued for the purposes of refusing entry into the Schengen area, shall be registered in to the central system on the basis of a national alert resulting from decisions made in accordance with the rules of procedure laid down by national legislation, the administrative authorities or courts responsible..

Article 96 does not stipulate an exhaustive list of conditions for registration under this provision. Paragraph 2 states that this situation would apply to an alien who has been convicted of an offence carrying a custodial sentence of at least one year or if there are serious grounds for believeing, that he has committed serious offences. However, para. 3 adds new open ended grounds for registration such as deportation or expulsion measures, arising from failure to comply with national regulations. It is clear that the Schengen states may have quite different legal requirements concerning deportation of aliens, and in addition quite different legal requirements for the registration under Article 96. Let us take an example. A relatively minor violation of immigration regulations which a foreigner has committed in one Member State, let us say Germany, may eventually result in a decision of German authorities on his deporation from the country and registration under Article 96, while national legislation in other Shcengen states, for instance say Greece or Iceland, would have no such consequences. However, the decision of deportation and the registration is bound to have legal consequences within all the Member States. As this person from a third country is from now on, or for a limited period of time, reported as an undesireable alien under Art. 96 in the system, this registration is applicable for the whole Schengen area. Next time, when the undesirable alien wants to travel to a country in the Schengen area, perhaps to visit a relative in Greece, the Greek authorities are obliged to reject his application for a common-visa on the grounds of the registration. The authorities are therefore bound by the decisions of the authorities of another Member State. Accordingly a judge in Greece would therefore not consider whether a person is unjustly reported into the Schengen system under Article 96, and he is hardly in the postion to evaluate whether the registration is in conformity with German legal requirements, complete different from his domestic legislation. It will be interesting to see further developement in judicial control in relation to the Schengen aquis, will take place in the future, such as in the circumstances described here. One possibility, and not an unlikely one, is that national legislation will be harmonised more and more, with the ultimate end that legislation in the field of Schengen aquis and its application will be identical.

My third point for discussion, is the impact of the Dublin Convention of 1990, which deals with responsibility of the EU member states for the processing of an application for asylum. The Dublin Convention, which came into force in 1997, replacing relevant parts of the Schengen Implementing Agreement, is an integral part of the Schengen co-operation and has clearly radically changed the handling of asylum-applications by authorities in the Schengen states. The objective of the Dublin Convention is to set up a distribution system, which enables the Member States to decide which of them shall be responsible for the processing of an application for asylum. Accordingly only one application for asylum may be lodged in the Schengen area. To that end, the Dublin Convention fixes the criteria, which determine which Schengen state should be held responsible for the processing of an application for asylum. This is stipulated mainly in Articles 4-8 of the Dublin Convention, stating that the responsibility is attributed to Member State in the following circumstances.

  • The Schengen state where a family member resides who has been recognized as having refugee status within the meaning of the 1951 Refugee Convention (Art. 4)
  • The Schengen state which has issued a visa or a residence permit (Art. 5)
  • The Schengen state where the applicant for asylum entered the Schengen territory (Art. 6)
  • The Schengen state where an application has previously been lodged. (Art. 8).

It is impossible here to go in depth into these conditions or into the methods to transfer asylum-applications between Contracting Parties to the Dublin Convention. Detailed rules are stipulated in the Convention itself on the so-called distribution mechanism, that is to say how and when a Member State shall transfer an application to another Member State if any one of the criteria is fulfilled. It should also be mentioned that exceptions can be made from the general rule that an application shall be transferred through distribution mechanism, if special reasons according to national law so require.

When the impact of the Dublin Convention is evaluated, it is obvious that the emphasis in the handling of asylum applications has changed considerably. The Convention entails, that the first task of the national authorities is not to determine whether an applicant for asylum actually meets the conditions that would ensure him protection as a refugee and then to assess whether the applicant, as a refugee, should be granted permission to reside in the country or whether there is a safe third country. Instead, the first and often quite time-consuming task is to consider whether responsibility for processing an application for asylum lays with one of the other Contracting Party. Only if the responsibility of another Contracting Party cannot be established, it is necessary for the authorities to assess whether the applicant for asylum qualifies as having refugee status within the meaning of the 1951 Refugee Convention. In the case of Iceland, one can imagine that it is only in exceptional circumstances where the responsibility of another state can not be established.

Finally, I would like to discuss briefly the most recent innovation in the field of European human rights instruments with in the Union. The Charter of Fundamental Rights of the European Union was adopted by the European Council in Nice in December 2000. The Charter is clearly one of the most extensive documents in the field of human rights. It is not based on the traditional division between civil and political rights on one hand and economic, social and cultural on the other. What makes the Charter certainly unique, is how it confirms that civil, economic, cultural, political and social human rights are indivisible, interrelated and interdependent, which reflects a progressive understanding of contemporary human rights theory. Therefore the Charter has a different approach to categories of rights and is divided into the following Chapters: Dignity (Chapter I), Freedom (Chapter II), Equality (Chapter III), Solidarity (Chapter IV), Citizens’ rights (Chapter V) and Justice (Chapter VI). The Charter declares most of the human rights protected by the UN and European conventions and treaties of human rights. It also adds a variety of new rights and obligations, some of which reflect present practical issues such as in the field of medicine and biology and the prohibition of the reproductive cloning of human beings (Art 3), the freedom and pluralism of the media (Art 11.), Freedom of Arts and Science (Art. 13), apart from special protection to vulnerable groups in society such as the elderly (Art. 35) and people with disabilities.

What is of special importance for our discussion on the European Union and asylum seekers, is that two provisions of the Charter, located in Chapter II with rights called “Freedoms” aim at special protection for asylum seekers. Accordingly Article 18 and 19 are the following:

Art. 18: The rights of asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.

Art. 19: In para 1. collective expulsions are prohibited, as well as in several other human rights treaties. However a new provision is added in paragraph 2, stating that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

One may ask whether these provisions add anything new to previous obligations of the Contracting Parties to the Geneva Convention and to the established practice of the European Court of Human Rights in the interpretation of Article 3 of the Convention since its judgments the Soering case of 1989 (7 July) and later similar cases. And this is even more questionable in the light of the fact that the Charter is not a legally binding instrument but only a declaration where the member states of the Union solemnly declare its will to aim at the protection of certain common values and principles, as stated in the Preamble. One would also easily come to the conclusion that all the rhetoric in the document and the extensive list of rights had never been adopted, had the Charter been given the status of legally binding obligations for states.

However, despite these arguments, the mentions of the rights of asylum seekers in the Charter should not be underestimated. Firstly, it is a big step to have these rights accepted as basic “freedoms” in an international human rights document. In the recent decades, states have refrained from classifying the rights to asylum as a basic individual right in human right instruments. Secondly, and more importantly, there is some prospect that the Charters’s legal status will be amended in a relatively near future. Already a number of Member States of the Union support that the Charter shall be made legally binding and a Declaration attached to the Treaty of Nice places the status of the Charter on the agenda for an intergovernmental conference to amend to the EU Treaties to be held in 2004. It may therefore be quite relevant to speculate what would be the effect of these provisions of the Charter if they were legally binding. Thirdly, there are already clear signs that the Charter, as a further source of human rights, will have impact on the application of the institutions of the Union on general principles of Community law and European legislation. Since its proclamation in Nice, the EU Charter has been used and referred to in a variety of ways by the three political institutions of the EU. In addition the Advocates General and the European court of first instance in Luxembourg have on more than 20 occasions referred explicitly to the provisions of the Charter as a basis of interpretation of European law. However, the European Court of Justice has not referred to the Charter in its judgments. The previously mentioned references to the Charter by EU institutions have not been related to Articles 18 and 19 of the Charter of rights of asylum seekers. Nevertheless, it is clear that these provisions, as well as other Articles of the Charter, may have a bearing on the interpretation of European legislation.