By Maria O’Sullivan

Just as the arrival of boats carrying asylum seekers has been a high-profile political issue in Australia for some years, asylum has been similarly controversial in Europe. However, events there highlight how governments can deal with this controversial issue while protecting asylum seekers’ core human rights. Two important developments in particular have softened some aspects of Europe’s otherwise harsh national asylum seeker policies. First, there have been a number of important judgements of the European Court of Human Rights (ECHR) which place limits on national refugee policies. Second, European countries are working together to forge regional cooperation in managing boat arrivals. In this respect, Europe’s human rights framework is a model which should be influencing policy makers both in Australia and our region.

Much has been made in Australia of the numbers of asylum seekers attempting to gain entry to our borders. However, many of those who seek asylum in industrialised nations do so in Europe. In 2012, Germany received 64,500 asylum claims; France received 54,900 and Sweden 43,900. Tens of thousands of migrants and asylum seekers also cross the Mediterranean from Africa each year.

The increase in boat arrivals from Africa has caused a great deal of tension between key Southern European countries (such as Greece, Italy and Spain) and other European states. The Southern members argue that they bear an unfair burden in processing and providing for these asylum seekers while struggling to look after their own citizens.

A number of NGOs have reported that these Southern European countries have ‘pushed back’ asylum-seekers to Africa and have failed to conduct adequate search and rescue operations to assist unseaworthy vessels. These problems were illustrated by last October’s tragedy in the Mediterranean when more than 300 African migrants died after their ship sank off the Italian island Lampedusa.

Additionally, there is anti-immigration sentiment in some European countries, particularly those affected by economic crisis. Some anti-immigration political parties include the Golden Dawn in Greece, the Dutch far-right Freedom Party (PVV) and in France Marine Le Pen’s National Front.

Despite these issues, Europe’s legal structure is markedly different from that in the Australasian region. Australia does not have a domestic Bill of Rights and is not part of a regional human rights treaty. In contrast, forty-seven European states are signatories to the European Convention on Human Rights. EU Member States have also signed up the EU Charter on Fundamental Rights and to sophisticated regional refugee instruments which attempt to harmonise EU refugee law and practice. These binding documents ensure that Europe adheres to minimum standards on refugee law, procedures and living conditions based on the Refugee Convention. One significant development in 2013 was the adoption of ‘recast’ versions of these instruments which strengthen the protections granted to asylum seekers.

The practices of European countries are supported by strong regional oversight bodies, such as the European Court of Justice and ECHR. For instance, in 2011 the ECHR held that Greece had breached its human rights obligations because of deficiencies in its asylum system. Currently, no European country can transfer asylum seekers to Greece as a result of that ruling. The ECHR also ruled in 2012 that Italy had violated human rights by pushing asylum seeker boats back to Libya. These two key judgements continue to be highly influential on national practice in 2014 as they are binding on European signatories.

Unlike Europe, the Asia Pacific region lacks an effective regional asylum seeker protection mechanism. The Bali Process has operated since 2002, but this is a limited tool for the protection of asylum seekers as it is primarily an anti-people smuggling initiative.

The Australian government’s offshore processing is one of its most widely criticised policies. In contrast, Europe conducts no such third-country processing. While European countries are permitted to transfer asylum-seekers within Europe, these transfers are strictly regulated by the Dublin Convention. In 2013, a redraft of that Convention included family reunion as a primary consideration. This is a very important improvement considering that asylum seekers from war-torn countries such as Syria and those in Africa frequently become separated from their families. In contrast, harsh new Australian visa laws prohibit family reunion for refugees who arrived by boat.

Finally, further work is being carried out in Europe to improve cooperation on search and rescue operations. A European Parliamentary Committee recently approved a Regulation for coordinated surveillance of external sea borders which will better protect the rights of migrants in distress at sea.

In summary, while there remain significant concerns about aspects of European refugee law and policy, Europe’s strong regional human rights infrastructure continues to prohibit some harsh asylum policies. Many of the improvements in European refugee policy also arose out of a shared interest in harmonising laws and conditions. If Australia is to take the lead in establishing a Regional Processing Programme in the Asian region, it must also build a robust rights protection framework – domestically and regionally – and (in the longer term) work towards greater adherence to the Refugee Convention.

This piece is featured in the 2014 Castan Human Rights Report. You can read the full report and download a pdf here. 

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Further reading

BBC, ‘Mapping Mediterranean Migration’, http://www.bbc.co.uk/news/world-europe-24521614

The European Commission, Information on the ‘Common European Asylum System’http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/

European Council on Refugees and Exiles: http://www.ecre.org/refugees/refugees/refugees-in-the-eu.html

The Guardian information page on the European Court of Human Rightshttp://www.theguardian.com/law/european-court-of-human-rights

The Guardian information page on Immigration and Asylum: http://www.theguardian.com/uk/immigration

The European Convention on Human Rights http://www.echr.coe.int/Documents/Convention_ENG.pdf

The EU Charter on Fundamental Freedoms: http://www.europarl.europa.eu/charter/pdf/text_en.pdf