One of the main components of
demographic shifts throughout the course of history has been migration and it
has actually shaped the world. Migration
is inextricably connected with human rights, poverty and development, and has a
considerable effect on political, legal, social, environmental issues1. Differentiation among the different reasons
for migration must first be established as a different body of laws apply for
the different forces of migration.
International migration may be
distinguished as “voluntary” or “forced”.
Voluntary migration is carried out by a person out of his/her free will,
in a legal way through a sophisticated network connecting the supply and the
demand in business. A person may choose to emigrate for an improved lifestyle,
but he goes to where is open for immigrants and he fulfils all the legal
obligations. However, a person may
decide to escape from his country to get away from horrifying poverty and very low-quality
lifestyle. Although such migration is
“voluntary” in the strict sense of the word, it is vastly different from the
voluntary migration described above. Others may decide to migrate because of
persecution or natural disasters. The
forced migration issue is further complicated by migrants who are “illegal”2.
The Geneva 1951 United Nations
Convention relating to the status of Refugees, adopted the international
refugee protection based on the United Nations Declaration of Human Rights 1948
Article 14 in the United Nations General Assembly Resolution 429(V) of 14th
This article, on which the Convention is based, says that all those being
persecuted have the right to seek and enjoy asylum in other countries and this
right will not be refused even if it is found that the persecution is arising
from non-political crimes4. The
1967 Protocol made the Convention declaration universal. The Convention adopted
a single definition to describe the conditions needed for a migrant to be
considered as a refugee. It says that a
refugee is one who cannot or does not want to go back to his country of origin
because of a well-founded fear of being persecuted for political or other
reasons, founded on religion, race, political belief, social group membership
and nationality. The convention provisions are to be applied in a completely non-discriminatory
Those seeking asylum must be
allowed and not punished for entering a host country illegally. The Convention is based on the principles of
non-refoulment, non-penalization and non-discrimination. The non-refoulment principle provides that a
refugee must never be sent back if he/she does not want to go to a country
where he/she is afraid that he/she will be persecuted and life would be
threatened. The Convention grants refugees
access to primary education, work, and courts, and the provision of a passport
and other documentations. However, those
who have probably committed war crimes or other very serious crimes are not
eligible. States reaffirmed that the
non-refoulment principle is firmly embedded in customary international law5.
The Convention pivoted its definition
of refugee on the words “well-founded fear” of being persecuted. This caused a wide discussion since fear can
be subjective or objective, realistic fear or unrealistic fear. It is difficult to measure and define the
nature of fear. The Convention’s intention is to protect migrants from
persecution in their country of origin with great determination and
intent. There is no need for evidence
that this fear is realistic or else it would have been highly impossible for
the appellant to prove his point and is declared a refugee. Anticipation of fear is enough.
The International Association
for the Study of Forced Migration (IASFM), added an important dimension to the
definition of “forced” migration. It included as forced immigrants those that
are displaced by environmental or natural disasters, nuclear or chemical
disasters, famine or developmental projects.
Natural Disasters include volcano eruptions, earthquakes and floods, while
environmental disasters refer to desertification, global warming, land degradation
Forced Migration Online also
picked the International Association for the Study of Forced Migration’s
definition of refugee. In fact, to the
category of refugee due to conflict, they added two more categories:
development policies and projects, and disasters. Conflict induced displacement includes
generalised violence, civil war and persecution stemming from discrimination
based on religion, race, nationality, social group membership or political
belief. Development-Induced displacement
refers to large scale infrastructure work like ports, roads, airports and
dams. Then there are Disaster – Induced
When immigration happens for
the reasons that have been dealt with above it is the result of push
factors. However, people may opt to go
away to leave behind them a land ravished by exploitation of the many by the
few, terrible poverty, no education, limited employment and little hope of
improvement. These see the glamour, high
and easily accessible education, employment opportunities with decent wages,
good housing, democratic capital and fantastic entertainment of the Western
world. Western alluring factors pull people away from their country of origin
towards the West which promises a decent life.
Those who leave because of pull factors may be considered forced
migrants because there is no hope of a better future in a land submerged in
corruption and poverty. Such migrants
are not in such a desperate situation as migrants that leave because of pull
factors but are certainly not in an enviable position. Still, these migrants
are not considered eligible for refugee status or at least an asylum status
until their claim is considered8.
Council Directive 2003/9/EC which set down the minimum standards for the
reception of asylum seekers was an important step towards the establishment of
“Common European Asylum System agreed upon at the Tampere meeting (1999). The Reception Conditions Directive aimed for
the minimum standards that would guarantee an asylum seeker a dignified living
standard, and applied for nationals from third countries. Article 2 provides for free movement for
asylum seekers within the host Member State’s territory or within an area the Member
State has assigned to the asylum seeker.
All efforts to maintain the asylum seeker’s family unity should be made
by Member States if family is present.
medical screening will be made on asylum seekers if deemed necessary. Minor children of an asylum seeker should be
given access to education on the same footing as members of the host Member
State. Member States must grant access
to the labour market and allow them the opportunity for vocational
training. Material conditions must be
provided to ensure applicants a healthy standard of living, but applicants must
make a financial contribution if they have been working. Article 13 and Article 20 provide that the
vulnerability of the persons due to sexual, physical or psychological violence has
to be taken into account9.
European Council on Refugees and Exiles (ECRE) issued a report in 2005 on the
extent to which the EU Member States were implementing the Council Directive
2003/9/EC and were helping in the realisation of the Directive namely to ensure
a “dignified standard of living and comparable living conditions in all Member
States” to all those applying for asylum.
ECRE concentrated on Employment (Article 11), General Rules on Material
Reception Conditions and Health Care (Article 13) and Reduction or Withdrawal
of Reception Conditions (Article 16). This Directive had to be transposed into
law by the Member States at the national level by the 6th January, 2005 but
only 8 Member States had completed the transposition on time10.
2008 and 2009 the European Commission brought up proposals to revise the qualification
for the status of refugee, asylum procedures, asylum seekers’ responsibilities
and reception conditions which are the four key issues of a “Common European
Asylum System” tackled between 2003 and 2005.
March 2012 agreement failed to bring about any significant changes to Directive
2003/9/EC in Directive 2013/33/EU. The
European Parliament effected only some changes as regards the preamble as EU
Court of Justice often turns to the preamble to interpret legislation. However, the European Parliament failed to
persuade the Council of Interior Ministers to drop its changes regarding
breaking up the link between access to labour market and time limit to decide
an application for asylum. Living
standards for asylum-seekers remained the same.
Still agreement was reached on detaining asylum seekers on other grounds
than those associated with asylum, improvement in housing facilities,
alternatives to detention and the obligation for Member States to inform the
Commission about the Directive’s transposition.
regards the main text, documentation requirement to obtain benefits was banned,
detention time limits remained subjective, and asylum seekers’ detention in
prison was maintained even if that would harm the health of vulnerable asylum
seekers. Little or no change was affected on social welfare, mental health
care, withdrawal of benefits and definition of vulnerable persons. The improvements are there but it is a far
cry from the treatment of asylum seekers with dignity and fairness as proposed
by the Directive of 201311.
EU set down the minimum refugee qualifications standards or standards for those
seeking international protection in the Council Directive 2004/83/EC in order
to harmonise definition of refugee status. Refugee is defined as a third
country national who leaves a country because of well-founded fear of
persecution on the grounds of nationality, race, religion, social membership and
political beliefs. Article 4.5
facilitates the refugee status qualification by doing away with the need for
documentation showing persecution if applicant has done his/her utmost to
substantiate his/her statement, has been coherent and plausible, and has
submitted an application for international protection as early as possible. Article 5 defines “well-founded fear”. Subsequent articles define who the actors of
persecution and actors of protection may be and, Article 9 refers to acts of
persecution which include physical and mental and sexual violence,
disproportionate punishment, acts of a child-specific or gender-specific nature,
and police, judicial, administrative and /or legal measures which are
discriminatory or discriminately implemented.
Article 10 deals with reasons for persecution while Article 11 is about
cessation which takes place if a third country national re-acquired his/her
nationality or acquired a new nationality.
If the circumstances which frightened the refugee are not existent
anymore there will also be cessation.
The Directive also provided for beneficiaries of subsidiary protection
but much more attention was thrown on them in the recent Directive 2011/95/EU12.
Directive 2004/83/EC was recast into Directive 2011/95/EU of the Council of
Ministers and the European Parliament after the 2010 evaluation report by the
European Commission found that there was a vagueness around many concepts found
in Directive 2004/83/EC which opened the way to ambiguity and inevitable
divergent interpretations. Criteria were
not clear and precise enough to form solid bases in Courts. The recast Directive increases the rights and
benefits of beneficiaries of subsidiary protection. Beneficiaries of international protection
were strengthened because of the particular integration challenges they have to
overcome. Legal concepts used to identify
those who need protection have been clarified for faster and more efficient
decision taking and for less abuse of the asylum system. Adults legally responsible for minors may be
eligible for asylum. Beneficiaries’
rights for family unity, employment and health have been strengthened but they enjoy
less access to residence permits, integration facilities and social welfare
than refugees. However, the residence
permit of beneficiaries of Subsidiary Protection was improved, and so were
their access to education, opportunities related to employment and to
integration facilities and accommodation13.
Asylum Procedure Directive 2013/32/EU is a recast of Directive 2005/85/EC and
has the objective of setting standards for all EU Member States asylum systems
at an EU level. It aims to help Member
states carry on with asylum procedures at a low cost and enable them to deal
effectively with potential abusive claims.
Another very important objective is to be more clear and precise in the
standards it is offering to validate case law of the European Court of Human
Rights and the European Court of Justice.
In fact, the Directive of 2013 is more precise on asylum procedures
creating a coherent system that facilitates a high level in Member States’
processing of applications. In this
Directive, applications for subsidiary protection have been raised up to the
level of asylum applications, and are considered as “international protection”
and follow the rules as asylum applications.
Rules governing asylum have been clarified, and a number of aspects have
become more concrete, free legal assistance is offered to applicants in case of
appeal. Clarification and precision of
procedural rules are based on stricter rules and elaborate terms. Procedures that are accelerated and prioritised,
and preliminary examinations help render procedure faster14.
European Council of Refugees and Exiles (ECRE) reported in 2016 about the need
of balance between speed and quality in carrying out the complex processes to
determine refugee status. A long procedure means that those in need of
protection will not obtain it as quickly as necessary and the asylum seeker
remains in a state of uncertainty for a long time. There is no doubt that when
application processes take a short time, uncertainty and cost will be
minimised. However, one must not forget the necessity for obtaining results
which are correct, of high quality and fair, and reduce appeals. Therefore,
quality and rapidity were both needed15.
European Commission proposed a new Regulation to establish a single asylum
procedure common to all EU Member States, and to replace the Asylum Procedure
Directive. This proposal aimed to render the asylum procedures simpler, clearer
and shorter, ensure asylum seekers’ common guarantees, fight abuse more effectively,
and harmonise rules16.
its proposal for a new Regulation aimed to lay down standards for the reception
of applicants for international protection COM (2016) 465 final 2016/0222 (COD),
the European Commission called for a sustainable, holistic and integrated EU
migration policy to overcome the challenges brought up by migration flows. The
most worrying divergencies between Member States were in the kinds of
procedures employed, recognition rates, the reception conditions Member States
provide applicants with, and the type of protection member states give
beneficiaries of international protection. Such divergencies had to be
eliminated to ensure a balanced distribution of protection responsibility among
Commission proposed a Common Asylum System reform by strengthening the Dublin
System, which is used to determine which Member State has the responsibility
for examining applications for asylum, the Eurodac System and creating a
genuine European Agency for Asylum to see that the Common European Asylum
System functions effectively. Four other proposals followed: the replacement of
the Asylum Procedures Directive and the Qualification Directive by Regulations,
revision of the Reception Conditions Directive, and a structured union
resettlement framework. The Commission is striving for the harmonisation of
procedural arrangements so that all Member States follow the same procedure,
establishing uniform standards for recognising those in need of protection, and
for their rights, harmonising conditions for reception and enhancing the
integration opportunities for applicants.
interlinked proposals will form a comprehensive reform for the Common European
Asylum System which will be effective, protective and convergent for all EU
must be kept in mind that a regulation is directly applicable to all EU Member
States. The legal basis is article 78(2) (d) of the Treaty on the Functioning
of the EU17.