For debate in the Standing Committee - See Rule 47

Pour débat à la Commission Permanente- Voir article 47 du Règlement

Temporary protection of persons forced to flee their countries

REPORT

Doc. 7889

18 July 1997

Rapporteur: Mrs Elisabeth Arnold, Denmark, Liberal, Democratic and Reformers' Group

 


Summary

In Europe, the granting of temporary protection to people forced to flee countries beset by war, civil strife, widespread violence or natural disasters is not governed by any international legal instruments and is a matter for the receiving countries to decide.

Temporary protection is a necessary complement to the Geneva Convention of 1951 relating to the status of refugees and the 1967 Protocol thereto. To gear the use of this protection tool both for the maximum benefit of the persons forced to flee and with respect to the European countries' receiving capacities, the Assembly recommends that the Committee of Ministers adopt common guiding principles for the member states' legislation and practice in this field and set up a rapid reaction system to cope with cases of massive influx. Further, the Assembly addresses to the member states a series of recommendations which the latter should respect in implementing their national temporary protection policies.

I. Draft recommendation [link to adopted text]

1. In Europe a number of people forced to flee countries beset by war, civil strife, widespread violence or natural disasters are not covered by refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol. Likewise, in the event of a massive influx, it is virtually impossible to process asylum applications individually.

2. The swift and flexible award of temporary protection to whole categories of people in danger is therefore an essential instrument which complements, but cannot substitute for, the protection system established by the Geneva Convention.

3. To gear the use of this instrument as closely as possible both to the beneficiaries' needs and to the host states' resources, it is imperative to establish a common reference framework which will serve as a basis for the European states' legislation and practice. At present, besides general provisions of international human rights and refugee law, there are no specific international legal obligations concerning the granting of temporary protection and the scope of the rights it entails.

4. Temporary protection is by definition limited in time. It is based on the presumption of return, which must take place as soon as the conditions justifying temporary protection cease to exist. Compliance with this principle is essential if the concept is to remain credible in the eyes of the member states and to be used in the future.

5. The Assembly stresses that return must be safe, dignified, orderly and phased and must take into account the country of origin's capacity to absorb the returnees.

6. If temporary protection is to function effectively, the process must be closely co-ordinated from beginning to end between all the states and international organisations concerned so as to avoid disproportionate distribution of people fleeing their countries and secondary movements of refugees between European states in the event that temporary protection is lifted unilaterally.

7. Temporary protection must be viewed in the broader context of a comprehensive effort to reestablish peace and prosperity in the country of origin. While a successful return is critical for reconstruction, hasty repatriation may be a further barrier to stabilising the country.

8. At present, the debate on temporary protection in Europe is closely linked to the situation of persons who have fled the conflict in some countries of the former Yugoslavia, in particular Bosnia and Herzegovina.

9. The Assembly therefore recommends that the Committee of Ministers:

i. adopt a recommendation to member states establishing common guiding principles for the member states' legislation and practice with regard to temporary protection, drawing upon the proposals contained in paragraph 9.iv below as well as upon the principles formulated by the Office of the United Nations High Commissioner for Refugees (UNHCR);

ii. provide in this recommendation for the introduction of a system for swift consultation and co-ordination between the member states if there is a risk of a massive influx of people seeking international protection, especially on such points as the admission of these people to the states' territory, their equitable distribution and the lifting of protection;

iii. invite the European Union to use the framework of the Council of Europe to co-ordinate its temporary protection initiatives on a pan-European scale and, when framing its standards in this area, to draw upon the principles set out in paragraph 9.iv below;

iv. ask the member states to:

  1. adopt a generous attitude towards people in need of international protection, allow them to be speedily and flexibly admitted to their territory and in particular exempt them from visa requirements;
  2. co-ordinate their temporary protection policies at European level and support the establishment of a rapid consultation and co-ordination system as proposed in paragraph 9.ii above;
  3. strictly respect the principle of "non-refoulement";
  4. ensure respect for the human rights of people under temporary protection and, where their stay is prolonged, upgrade their economic and social rights, including access to employment;
  5. ensure that people under temporary protection have access to primary and secondary education and make every effort to improve their access to higher education;
  6. organise vocational training schemes for people under temporary protection to help them reintegrate after their return and in the event of resettlement;
  7. from the very outset of temporary protection, facilitate family reunification for certain vulnerable groups, especially unaccompanied under-age children, and where the stay is substantially prolonged, allow family reunification for spouses, under-age children and other dependents of people under temporary protection;
  8. examine asylum applications by people under temporary protection as soon as possible and, in any case, two years after the beginning of temporary protection at the latest;
  9. refrain from returning persons whose applications for asylum have been rejected as long as the conditions justifying temporary protection persist;
  10. where the conditions justifying temporary protection persist for an extended period, and in any case after two years, grant all beneficiaries stable legal status entitling them to the same economic and social rights as other residents;
  11. once temporary protection has been lifted, favour the principle of voluntary return and refrain from forcibly repatriating certain categories of people, especially those who might have reason to fear persecution, victims of torture, traumas due to war and rape and sick people who cannot receive medical care in their countries of origin;
  12. implement these recommendations as soon as possible and apply them to both future situations and to persons already under temporary protection.

II. Explanatory memorandum by Mrs ARNOLD

Contents

 

1. Introduction

2. Reasons for and principles of temporary protection

a. Admission into the territory of the receiving State

b. Protection against "refoulement"

c. Respect for fundamental human rights

d. The hope of a rapid return to the country of origin

3. Situations in which the concept of temporary protection has already been applied

The former Yugoslavia

4. The rights of people enjoying temporary protection

Education

Employment

Welfare

Family reunification

Access to the procedure for applying for refugee status

5. Duration and outcome of temporary protection

a. The conditions justifying temporary protection ceased to exist within a "reasonable" lapse of time (taking into account current practice, a two year period could be envisaged)

b. The conditions justifying temporary protection persist and the stay is prolonged

6. The need for a harmonised approach

"Burden sharing"

7. Conclusions


1. Introduction

1. In Europe the international legal instruments on refugees grant protection only to those who fall within the definition of the refugee set forth in the Geneva Convention of 1951 on refugee status and the 1967 protocol thereto (hereafter referred to as the "Geneva Convention"). Whether or not protection is granted to people obliged to flee their countries because of armed conflict or a situation of widespread violence (also called "de facto refugees" or "non-conventional refugees") and what rights such protection entails is a matter for the receiving country to decide.

2. The countries of Europe have made various arrangements for dealing with "non-conventional refugees" and granting them temporary protection of one form or another where appropriate, be it called "temporary admission" as in France, "exceptional leave to remain" as in the United Kingdom, "collective protection" as in Norway, etc. (hereafter referred to as "temporary protection"). These arrangements are based on specific legislation or on various combinations of existing laws and administrative decisions.

3. As a result, conditions regulating access and the granting of temporary protection differ substantially from one country to another, as do the scope of the rights granted to the beneficiaries and the measures taken in the event of extension or termination of this protection.

4. At the present time any broadening of the refugee definition set forth in the Geneva Convention would appear to be unacceptable to most European states, some of which would prefer, on the contrary, to see it made more restrictive. In the circumstances temporary protection is a necessary, indeed indispensable complement to the Geneva Convention. However, in order for this protection to be used effectively and to the best advantage of those concerned, an in-depth study needs to be made of its form and the arrangements for its application, to identify the general principles in order to draw up a common reference framework to serve as a basis for the legislation and practices of the states of Europe in this field.

5. Temporary protection in Europe is mainly linked to the situation of people who fled the conflict in certain countries of the former Yugoslavia, particularly Bosnia-Herzegovina. This report will not focus on this case in particular, but it will draw the relevant conclusions.

6. In the context of the preparation of this report, the Committee on Migration, Refugees and Demography organised a hearing in Paris on 12 April 1996. It brought together representatives of governmental and non-governmental humanitarian organisations, representatives of the governments of Germany and Sweden and several experts, and its findings were used extensively in the preparation of this text. Similarly, the "Survey on the Implementation of Temporary Protection" published by the Office of the United Nations for Refugees (UNHCR) on 8 March 1995 and the "Report on Temporary Protection in States in Europe, North America and Australia", drawn up following the Inter-Governmental Consultations on asylum, refugee and migration policies in Europe, North America and Australia proved very useful indeed.

2. Reasons for and principles of temporary protection

7. Temporary protection may be defined as a flexible and pragmatic means of:

8. Temporary protection may also be granted for humanitarian reasons and to avoid the refoulement of asylum-seekers whose asylum applications have been rejected. Thus refugees from Rwanda, Afghanistan, Liberia, Somalia, Sudan, etc. enjoy this protection in different European countries.

9. With regard to the principles of temporary protection, examination of the different eventualities reveals the following common denominators:

a. Admission into the territory of the receiving state

10. The conditions of admission to the territory of the receiving country should be identified in reference to the UNHCR recommendation of March 1994 on the former Yugoslavia, which establishes the following categories:

11. Other categories may be added to this definition, such as people fleeing from natural or ecological disasters.

12. In practice admission depends essentially on visa policies. For example, the fact that Italy requires no visa of citizens of the republics of the former Yugoslavia means that any national of the former Yugoslavia belonging to one of the categories listed above may, de facto, enjoy temporary protection in Italy. However, the case of Italy is an exception since most European countries have made visas compulsory for citizens of Bosnia-Herzegovina and the Federal Republic of Yugoslavia.

13. Exemption from visas is of vital importance to the concept of temporary protection, for if it is to serve its appointed purpose, rapid and flexible admission is essential. The introduction of visa requirements by one country may produce a "domino effect", with neighbouring states following suit in order to protect themselves against disproportionate influxes. This actually happened in Europe in 1992-93. Visa policies should therefore be co-ordinated, and unilateral decisions should be avoided.

14. Denmark has combined its decision to require a visa with a procedure for examining applications for temporary protection in the country of origin, with the result that those who fulfil certain conditions are admitted. This is a more useful solution than simply stopping admissions altogether. In the event of mass influxes, however, this type of arrangement does not allow for swift reaction on an appropriate scale.

15. The persons admitted are generally issued with temporary residence permits valid for several months (often three or six months) and renewed at regular intervals. Some states have now started to issue permanent residence permits.

16. To avoid admission, attempts have been made to provide protection outside the territory of the receiving state. In Bosnia-Herzegovina the attempt to set up "protected areas" was nothing short of disastrous — as witnessed by the mass graves in Srebrenica and elsewhere. Where there is no genuine guarantee of safety, therefore, the use of such protected areas as an alternative to admission should be avoided.

b. Protection against "refoulement"

17. Once admitted, persons under temporary protection should be protected against refoulement as long as the circumstances that caused them to flee remain unchanged.

18. The European Commission and Court of Human Rights have established that an asylum-seeker may plead Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("no one shall be subjected to torture or to inhuman or degrading treatment or punishment") to avoid refoulement. Although it is conceivable that somebody under temporary protection might have recourse to this article, little is likely to come of it since the case law indicates that the inhuman treatment suffered must be aimed at the refugee in person, which is not generally the case of de facto refugees.

c. Respect for fundamental human rights

19. Those persons under temporary protection who find themselves in one of the European States Parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms enjoy the rights guaranteed by this convention, Article 1 of which states that "the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this convention". Inter alia Section I guarantees the right to life (Article 2), and consequently, one might argue, the right to receive the basic essentials for life; protection against refoulement (Article 3); the right to liberty and security of person (Article 5), which limits the arbitrary power of the authorities with regard to the detention of persons under temporary protection; the right to respect for one's private and family life (Article 8), which may be argued in connection with family reunification; the right to freedom of peaceful assembly and to freedom of association (Article 11), enabling people under temporary protection to form associations, and the right to an effective remedy before a national authority in the event of violation of the rights set forth in the Convention (Article 13).

20. Similarly, states should respect Conclusion 22 (XXXII) adopted by the Executive Committee of the UN High Commissioner's Programme on the protection of asylum-seekers in situations of large-scale influx, under the terms of which beneficiaries must be treated in accordance with internationally recognised humanitarian standards, enjoy all the internationally recognised fundamental civil rights (and in particular those set forth in the Universal Declaration of Human Rights), receive all necessary assistance and basic necessities, have access to the courts and the administrative authorities and enjoy the right to live with their families.

d. The hope of a rapid return to the country of origin

21. A speedy return home is the normal outcome of temporary protection. So long as a speedy return remains a realistic prospect, it may be argued that integration would make the return more difficult and increase the cost to the host country. If the concept of temporary protection is to remain credible and acceptable for the host countries in the event of a future crisis, the return must be effected as soon as the reasons for the protection have disappeared. However, as the length of stay is extended the prospects of a "rapid" return grow dimmer, and attitudes towards the persons concerned should therefore change (see also section 5 below).

3. Situations in which the concept of temporary protection has already been applied

22. Even though the use of the term of "temporary protection" is relatively recent, the actual concept is not. "Temporary refuge" was given to those who fled the Spanish civil war from 1936-39, especially by France and the United Kingdom. Similarly, Hungarian refugees in 1956 and Czech refugees in 1968 were given temporary hospitality (especially in Austria), Albanian refugees were received in Italy, and several European countries took in Tamils from Sri Lanka. And in other parts of the world mention should at least be made of the well-known case of the "boat people" in south-east Asia.

23. When one compares past arrangements for temporary protection with the current situation of refugees from certain countries of the former Yugoslavia, substantial differences become apparent. For example, countries in the region admitted the "boat people" of south-east Asia with a view to resettling them in third countries (the solution for refugees from the former Yugoslavia is repatriation); they were confined in camps (in Europe, they are admitted to the host country) and, finally, the cost of their stay was largely shouldered by third countries. In the above-mentioned example of Austria, most of the refugees were also resettled in third countries.

24. Let us also remember that the regional instruments for the protection of refugees on the African and American continents are of broader scope than the Geneva Convention and therefore apply to people who, in Europe, would fall within the scope of temporary protection "only". The 1969 Convention of the Organisation of African Unity governing those aspects of the matter specific to the problems of refugees in Africa extends the protection of refugees to people compelled to leave their country not only for reasons covered by the Geneva Convention, but also "owing to external aggression, occupation, foreign domination or events seriously disturbing public order in part or all of their country of origin or nationality". These criteria were also included by the countries of central America, Mexico and Panama in the "Cartagena Declaration on Refugees", which although not legally binding has been incorporated in the legislation of several states in the region.

The former Yugoslavia

25. In spite of these antecedents, the concept of temporary protection in Europe has developed in particular as part of the global response to the humanitarian crisis in the former Yugoslavia, proposed by the UNHCR and ratified at ministerial level at the international meeting on humanitarian aid to the victims of the conflict in the former Yugoslavia held in Geneva in July 1992.

26. The appeal launched by the UNHCR was well received and between 700 000 and 1 million refugees from certain countries of the former Yugoslavia found protection outside the former Yugoslav republics (including some 330 000 in Germany, 125 000 in Sweden, 80 000 in Austria, etc.). An international consensus developed to the effect that people who could not be effectively protected on the spot and were compelled to flee should receive international protection until a solution to the crisis was found. However, as the conflict drew on and on and the stream of refugees continued, most of the European countries gradually closed their borders.

27. As the fighting raged on, the UNHCR called for an improvement of the standards of treatment of the beneficiaries of this protection. As a result, in April 1995, the UNHCR noted that while the forms of temporary protection offered varied considerably, standards of treatment had gradually improved in general.

28. After the conclusion of the Dayton Agreements, certain European states considered that there was no longer any need for temporary protection. Most, however, accepted the point of view of the UNHCR, also supported by the Parliamentary Assembly of the Council of Europe, that any premature return of refugees before proper arrangements had been made to receive them would be inhuman to the people concerned and likely to destabilise the peace process. In December 1996 in London, in her statement to the "Implementation Council for the Peace Agreement in Bosnia", Mrs Sadako Ogata, United Nations High Commissioner for Refugees, declared that, taking into account the progress accomplished in the efforts for consolidation of peace in Bosnia, the need for a global temporary protection regime for refugees fleeing the situation in ex-Yugoslavia had ceased to exist. Nevertheless, she added that their return must be progressive and organised and particularly vulnerable categories of persons must continue to enjoy protection.

4. The rights of people enjoying temporary protection

29. Before fighting broke out in the former Yugoslavia, the European states granted temporary protection either on the basis of their existing legislation on asylum, immigration and aliens, or on an ad hoc basis. This is still the case in many countries, while in others specific legislation or measures have been adopted.

30. The rights granted in these different laws vary considerably from one country to another. It is almost generally accepted today that the longer the stay, the more extensive the rights enjoyed, which draw closer to or even level with those enjoyed by conventional refugees. In the case of refugees from the former Yugoslavia, this "upgrading" has already occurred in most of the receiving states. Germany and Switzerland, however, have maintained the rights at their original level.

Education

31. According to the available information, all the host states provide access to primary and secondary education. Children of pre-school age are a problem, since there is insufficient room in nurseries and nursery schools, and prospects are very limited for those who want to study at university. While bearing in mind the pressures on the receiving states, a determined effort should be made to improve this situation. Support should be given in this respect to the urgent declaration made by the Higher Education and Research Committee of the Council of Europe and endorsed by the Committee of Ministers, recommending generous attitudes in this respect. Similarly, in addition to traditional schooling, vocational training courses should be organised, since the skills thus acquired would be useful in finding work on returning home, and in rebuilding the country of origin.

Employment

32. In most states the temporary residence permits granted to people under temporary protection give them the right to work. In some countries, however, (Germany and Denmark, for example) access to the job market is very limited, and subject to conditions different from those governing nationals.

33. At times of large-scale influxes, immediate access to the job market for people under temporary protection could give rise to instability, tension and hostility towards the refugees. However, as the duration of stay increases, inactivity begins to have disastrous effects on the morale. Furthermore, people who work are self-sufficient and provide for their own needs, sparing states the expense of the allowances they would have to pay them were they unemployed. It is therefore preferable, where appropriate, gradually to phase in the right to work on the same terms as apply to nationals.

34. To combat apathy, it is advisable to follow the example of certain countries like Norway or Denmark and set up "reactivation and training" programmes. In Denmark, for example, the Bosnian guests organise their lives in reception centres, participate in the organisation of training programmes and elect their own panels of representatives. The role of the different non-governmental organisations in this field is particularly important and their participation in this effort must be encouraged.

Welfare

35. Welfare systems differ substantially. In certain countries the level of benefits is the same as for conventional refugees, while in others it is restricted to emergencies only. According to the information at our disposal, however, the level of welfare provided is sufficient everywhere to cater for the basic needs of the people concerned.

Family reunification

36. The UNHCR has recommended that in the event of a prolonged stay, family reunification should be allowed for spouses, children not yet of age and other dependants of the beneficiaries of temporary protection.

37. At present there is apparently no provision for the reunification of beneficiaries of temporary protection with their families. With the exception of a few rare cases where there are urgent humanitarian reasons, reunification is not allowed in, for example, Germany, France, the United Kingdom and Switzerland. Certain states, such as Italy, Sweden, Norway and Spain, do allow it, while others grant it only to certain categories of protected persons. Some states allow reunification with family members scattered in different receiving states, but not with those still in the country of origin.

38. The temporary nature of the protection may justify refusal to allow family reunification in the initial stages of the stay, except for specific categories such as unaccompanied children, where it must always be allowed. The longer the stay, however, the less justification there is for denying this right. This principle has been accepted in Denmark, for example, where reunification is allowed (subject to certain conditions) after three years.

39. Article 8 of the European Convention on Human Rights, concerning family unity ("everyone has the right to respect for his private and family life") could perhaps be put forward as an argument in favour of the reunification of persons under temporary protection with their families. Note, however, that there is no provision for the right to family reunification in the Geneva Convention.

Access to the procedure for applying for refugee status

40. Temporary protection is extended both to people covered by the Geneva Convention and to those who do not fulfil the conditions set forth therein for the acquisition of refugee status. Most European states suspended the examination of applications for asylum made by refugees from the former Yugoslavia, considering that they would not be staying long and that it was therefore unnecessary to set long and costly asylum procedures in motion. This was in 1992, when the countries of western Europe were "snowed under" as a result of an unprecedented number of applications for asylum (approximately 700 000). This went against the UNHCR recommendation that persons wishing to submit a valid application for refugee status should not be prevented from doing so.

41. Your rapporteur considers that it is very important to provide for the examination of applications for asylum in parallel to the existence of temporary protection in the shortest possible time and at the latest within a given lapse of time (in Denmark, for example, the deadline is two years, and in Norway three years). The granting of refugee status guarantees the legal security of the person concerned, facilitates their integration and, when the temporary protection comes to an end, prevents the expulsion of people likely to be persecuted on returning home.

42. Note, however, that rejection of the application for asylum must not be considered as a reason for sending the person home, as long as the conditions that justified the temporary protection still prevail.

43. Certain European states have begun to process applications for asylum from people from the former Yugoslavia (France, Denmark and the Netherlands, for example). The marked decrease in the number of applications for asylum submitted in recent years (in 1995 the figure was down to less than half that registered in 1992) was no doubt instrumental in this decision.

5. Duration and outcome of temporary protection

44. The decision to repatriate must be taken when the situation in the country of origin is considered auspicious. Assessing the situation is a highly delicate process and your rapporteur considers that the signal to terminate temporary protection must be given by the UNHCR, since governments often come under pressure from their electorates. It is also imperative that the states concerned co-ordinate the lifting of temporary protection to avoid secondary movements of refugees between the receiving states.

45. To turn to the outcome of temporary protection, two solutions may be envisaged:

a. The conditions justifying temporary protection ceased to exist within a "reasonable" lapse of time (taking into account current practice, a two year period could be envisaged)

46. In this event, temporary protection has fulfilled its purpose and the people concerned must return home. Their return must be safe, dignified, voluntary, orderly and phased. The returnees must be given the necessary information on the real situation in the place to which they are returning, including the legislation concerning them, administrative formalities, the availability of housing and employment, etc. When preparing their return, they must be able to make short "reconnaissance" trips back to their places of origin, without forfeiting the possibility of returning to the receiving country.

47. Repatriation plans must be drawn up in close collaboration with the UNHCR, or, if a large number of countries are concerned, by the UNHCR in consultation with both the countries of origin and the host countries. The Dayton Agreements set a very good example by calling on the UNHCR (Appendix 7) "to develop in close consultation with asylum countries and the Parties a repatriation plan that would allow for an early, peaceful, orderly and phased return ...".

48. Certain categories of people, however, must not be compelled to return to their home country, particularly those who have reason to fear persecution as defined in the Geneva Convention, and victims of torture, traumas caused by war, rape, etc. These people must be given refugee status or regular and renewable residence permits.

49. Stateless persons are a separate category altogether and the question of their status should be settled prior to repatriation.

50. Voluntary return remains the basic principle. However, bearing in mind the exceptions mentioned above, your rapporteur considers that if the concept of temporary protection is to remain credible and be used by the states in the future, returns other than on a voluntary basis must not be ruled out. The opinion of the UNHCR on carrying out possible involuntary repatriations must be decisive.

b. The conditions justifying temporary protection persist and the stay is prolonged

51. In this situation the host state may choose to maintain the statu quo and await a change that would make repatriation possible. Once a "reasonable" time has elapsed, however, your rapporteur considers that there is a risk of this attitude leading to the permanent social exclusion of the group of people in question. The undesirable effects of this approach, both for the people concerned and for the host state, are evident.

52. As recommended above, prolongation of stay should lead to the upgrading of the rights of the people under temporary protection. Gradually this process should lead to their obtaining a precise and stable legal status.

53. Further to the conclusion of the Dayton Agreements for peace in Bosnia-Herzegovina, prospects of repatriation to this country opened up. Hopes of a rapid return were quickly dissipated, however, since the fact that progress on the civil aspects of the peace process has been very slow has caused substantial delays in the setting up of guarantees of physical and material security for the returnees. Consequently, certain states have adopted liberal approaches to integration (Norway, Luxembourg, Italy, France, the United Kingdom), while others (such as Germany) fear that any integration will make the eventual return more difficult if not impossible.

54. In cases where it is considered that there is no longer any hope of a return in the more or less foreseeable future, resettlement in third countries may also be a lasting solution to the situation of people under temporary protection, particularly when one or more countries have taken in a "disproportionate number". The notion of a "disproportionate number" should be considered not in terms of the absolute number of persons taken in, but in relation to the circumstances of the receiving country (population, national product, etc.).

6. The need for a harmonised approach

55. Some degree of harmonisation of temporary protection is necessary at the European level in the interest both of the beneficiaries (to guarantee them a minimum standard of treatment) and of the receiving states (to avoid disproportionate distribution and secondary movements of people under temporary protection between host states).

56. To achieve this, your rapporteur recommends setting the goal of harmonising temporary protection systems on the basis of a set of "common guiding principles", rather than through binding legal instruments such as a convention. The following arguments support this suggestion:

57. Consequently, our efforts should concentrate on drawing up basic principles and implementing them in the legislation and the practices of the European states. These principles could be drawn up by relevant bodies within the Council of Europe, particularly the Ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR), and adopted by the Committee of Ministers in the form of a recommendation to the member states. Your rapporteur feels that such a text, even if it did not have force of law, would constitute a political commitment of considerable importance on the part of member states. This work should be done in close consultation with the UNHCR, and the proposals set forth in the draft recommendation, particularly those concerning access to temporary protection, the rights of beneficiaries and the outcome of this protection, must be taken into consideration.

58. Harmonisation work is also under way in the European Union. Following the texts adopted by the ministers with responsibility for immigration in 1992 and 1993 concerning persons originating from the former Yugoslavia, the Council of the European Union adopted a "resolution on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis" in September 1995 and a "decision on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis" in March 1996. In the above-mentioned resolution, the Council recognised that a mass influx of displaced persons into the territory of member states may require prompt and co-ordinated action in order to avert a serious threat to human life.

59. In March 1997 the European Commission submitted a proposal on "joint action for temporary protection of displaced persons" to the Council of Ministers. This joint action aims at creating a framework for common decision-making between member states regarding the opening up, prolongation and phasing out of temporary protection regimes as well as at establishing a minimum threshold as regards rights and benefits for the persons under temporary protection.

60. This "joint action" doubtless constitutes a positive step, many aspects of which correspond to the proposals put forward in the present report, and your rapporteur hopes that the Council of Ministers of the European Union will take the necessary steps. Two comments must, however, be made in this connection. Firstly, the "joint action" does not recognise the obligation of member states of the European Union to grant those under temporary protection a secure legal status after a fixed period of time. It does no more than stipulate that if, five years after the introduction of a temporary protection regime, the Council of Ministers has not adopted a decision to phase out the regime, member states should examine whether long-term measures should be introduced for beneficiaries of temporary protection. Secondly, the "joint action" does not apply to persons already under temporary protection, for example those who have fled the conflict in Bosnia and Herzegovina.

"Burden sharing"

61. For various reasons (geographical proximity, the presence of a minority or an expatriate community belonging to the same group as people fleeing a state in conflict, more lenient admission conditions, the higher level of rights granted, etc.) certain states may receive a disproportionate number of people in search of international protection.

62. So that these states do not get the impression that they are being "punished" for objective reasons or because of their more liberal or more generous protection policies, the other states must contribute to their effort. Financial and technical aid is often necessary, particularly if the host states have economic difficulties of their own to deal with (the states neighbouring on Bosnia-Herzegovina are a case in point).

63. In this context one should bear in mind the proposal to set up a multilateral assistance fund for refugees in the countries of central and eastern Europe made by the Parliamentary Assembly in its Recommendations 1236 (1994) on the right of asylum and 1278 (1995) on refugees and asylum-seekers in central and eastern Europe.

64. At the European Union level, the European Parliament has asked the Commission to draw up a project relating to a European fund for refugees which the member states could use to face a large-scale influx.

65. Beyond material assistance, the "burden sharing" rule should also be used to achieve a fairer distribution of the people in need of temporary protection. This is an extremely sensitive question and there is no denying that in the case of the refugees from Bosnia-Herzegovina it proved impossible to reach an agreement on admission quotas. In one extreme case a train full of Bosnian refugees spent several days desperately searching for a destination and was turned away on several occasions. This question should be reconsidered in the oft-proclaimed spirit of European solidarity. The same problem would also arise, of course, in the event of the resettlement of people under temporary protection.

7. Conclusions

66. The conflict in certain countries of the former Yugoslavia has rekindled a general discussion about the use of temporary protection. It is now quite clear that this experience will be decisive for the future of this concept in Europe. A majority of European countries generously opened their borders to those who fled the war, and your rapporteur can only commend them for it. But she also understands the disappointment of some of these countries which, having been assured it would only be a matter of months, are sometimes being asked not to repatriate the people concerned, and even to integrate them into their own populations.

67. A situation such as this calls for patience and humanity, and suitable solutions should be sought for the different groups concerned. Temporary protection must be considered as an integral part of a comprehensive approach designed to restore peace and prosperity in countries stricken by war. By pooling our resources in the different fields of reconstruction in Bosnia-Herzegovina, Your rapporteur is convinced that we shall succeed in finding solutions satisfactory to all.

68. This report highlights the usefulness of temporary protection and endeavours to determine certain common principles for implementing it in such a way as to serve the interests of the persons in need of protection as well as taking account of the possibilities of the states concerned. Your rapporteur hopes the proposals contained in the draft recommendation will lead to action by the Committee of Ministers along these lines and will be taken up in the legislation and the practices of our member states.


Reporting committee: Committee on Migration, Refugees and Demography.

Budgetary implications for the Assembly: none.

Reference to committee: Doc. 7410 and Reference No. 2041 of 9 November 1996.

Draft recommendation unanimously adopted by the committee on 24 June 1997.

Members of the committee: Mrs Aguiar (Chairperson), MM. Iwi_ski, Junghanns (Vice-Chairmen), Açba, Mrs Aguilar (Alternate: Mrs Guirado), MM. Akselsen, Amoruso, Andres, Árnason, Mrs Arnold, MM. Aushev, Beaufays (Alternate: Ghesquière), Billing, Bogomolov (Alternate: Ustiugov), van den Bos (Alternate: Jurgens), Brancati (Alternate: Brunetti), Branger, Mrs Brasseur, MM. Brennan, Caceres, Cardona (Alternate: Vella), Christodoulides, Chyzh, Clerfayt, Dinçer, Ehrmann, Mme Fehr, MM. Filimonov, Fuhrmann (Alternate: Mrs Karlsson), Mme Garajová, MM. Godo, Gross, Sir John Hunt (Alternate: Mr Atkinson), Mr Jaki_, Mrs Johansson, MM. Kalus, Kara_, Lord Kirkhill (Alternate: Mr Wray), Mr Kukk, Mrs Kušnere, MM. Laakso, Lauricella, Laurinkus, Lazarescu, Leitner, Lesein, Liapis, Luís, McNamara, Mészáros, Micheloyiannis, Minkov, Moser, Nogalo (Alternate: Mrs Buši_), Mrs Plechatá, MM. Rakhansky, von Schmude, Sincai, Solonari, Mrs Soutendijk-van Appeldoorn, MM. Tahir, Vangelov (Alternate: Tripunovski).

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

Secretaries of the committee: Mr Newman, Mr Sich and Mrs Nachilo.