Is Europe Living Up to Its Obligations to Refugees?

Geoff Gilbert ^*

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Abstract

While Europe is somewhat indeterminate as a legal concept, with respect to refugee law the European Union is the major actor in the region, although the Council of Europe provides protection guarantees for many people who fail to obtain refugee status consequent on the restrictive approach taken in EU Member States. In 2004, the EU finally produced the harmonized policies on qualification for refugee status or subsidiary protection, and on minimum procedures throughout the 25, called for in the 1997 Treaty of Amsterdam. The principal criticism of the approach of the EU towards refugees is that it has combined asylum with immigration. Immigration law is about controlling entry, whereas refugee law is about providing international protection. The absence of a supervisory tribunal to oversee the application of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol has meant that states have developed their interpretations of refugee law independently; harmonization, on the other hand, inevitably leads to equalizing down at the expense of the refugee when it is attempted to attune those independent approaches. Taken together with the link to migration, particularly irregular migration, the focus within the EU is on numbers and on so-called ‘bogus’ asylum seekers. With an immigration control mentality driving refugee policy, it is little wonder that the approach of the European Union has consisted in part of measures designed to move decision-making to third states.

 * University of Essex.

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