Introduction
Through contacts with the Swedish Immigration Board, the Swedish Red Cross, the Library of the Swedish Parliament and the Swedish university libraries, I have found four academic papers concerning refugee policy in a European Union perspective. All four are undergraduate studies.
Evidently, given the university libraries' lack of interest when it comes to most undergraduate papers, my list cannot with certainty be said to be complete. However, these four studies seem to be the only ones circulating outside the universities and thus have enjoyed a much wider readership than the average undergraduate studies.
Harmonization of asylum policies in Western Europe
This 1991 study by Kristof Tamas puts the question "Why and to what extent has harmonization taken place?" Starting out from theories of international regimes, Tamas tries to provide an answer by analysing if there is a need for a regime on refugee policy.
In his background description, Tamas says that during the second half of the 1980's, many countries restricted the right to asylum. He notices that the legislation on asylum varies "tremendously" from country to country in Western Europe. Often, applicants for asylum have been applying for asylum in country after country, since no country has been willing to assume the responsibility of examining their applications ("refugees in orbit"). However, during the last decade, "a coordination or a so called harmonization of asylum policies" in Western Europe have been discussed in a series of institutional settings. In his analysis, Tamas deals primarily with the Dublin Convention and the Schengen Convention.
To what extent has harmonization taken place? In his conclusions, Tamas establishes that the harmonization in the European Community has not implied any "particularly far-reaching restraints" on the refugee policies of the Member States. In fact, given the definitions of harmonization and cooperation presented in Chapter 1, it can even be concluded that "the conventions so far created concern[ed] cooperation rather than harmonization".
Now then, why has the "harmonization", or rather cooperation, taken place? Tamas' answer is that officially, the objectives have been to avoid nuisances such as "refugees in orbit", to uphold effective border controls, and avoid abuse of the right to asylum. The establishment of the internal market, implying "free movement of persons", was a starting point for the cooperation, but the Member States' respective objective to ensure sovereignty over their own actions have had a curbing effect on the cooperation. However, Tamas says that the resistance against giving up sovereignty, may for the individual state be balanced by the possibility of using the cooperation as a cover for further restrictions of the right to asylum.
Tamas' final conclusion is that if the protection for refugees, in accordance with the Geneva Convention, is not going to deteriorate, a more far-reaching harmonization of refugee policies is necessary. This, since harmonization of national legislation on asylum, based on an international regime, would imply the introduction of "norms, principles and rules" necessary for "mutual confidence" to prevail. In contrast, the then cooperation would, according to Tamas, give rise to "negative competition", i.e. a striving of each individual state to appear less attractive to asylum applicants than its neighbouring states.
Supranational or interstate cooperation?
Mia Thelander's paper, subheaded "A study of the European Community Member States' cooperation in asylum and immigration policy", sets out to "describe and analyze" the indicated cooperation. Primarily the structure of the cooperation is dealt with, this being done "from two alternative forms of international cooperation, supranational and interstate", but also its content is given an accounting.
Thelander starts off by establishing that the debate about the cooperation has "to a large extent been characterized by faulty and contradictory information". The European Community's "restrictive asylum and immigration policy" has been widely criticized, at the same time as the former Swedish Minister responsible for immigration states that the Community does not have any policy on asylum and immigration.
The author continues by pointing out that there exist "substantial differences" among the Member States as regards the interpretation of the Geneva Convention. This lack of coordination is said to have brought about a "vicious circle" in which Member State after Member State, in fear of becoming the "most generous country", constantly adopts more restrictive provisions on asylum and immigration. The only way to stop this "negative trend" is, according to Thelander, probably to "coordinate and harmonize the policies [on asylum and immigration] by means of common interpretations and provisions".
When discussing supranational cooperation, Thelander concludes that there is no explicit stipulation in the Treaty of Rome providing for cooperation in asylum and immigration policy. However, since harmonization of the Member States' provisions governing the entry and stay of aliens and the right to asylum, is a prerequisite for the abolishment of the internal borders, "one might argue", she says, that the "substantial differences" in asylum and immigration policy constitutes an impediment to the achievement of the objective "free movement of persons". This reasoning has, according to Thelander, been used by Members of the European Parliament to prove that the Treaty of Rome implicitly lends "some" competence to the Community.
By way of conclusion, Thelander draws attention to the established fact that the European Community does not have a policy on asylum and immigration. The assertion of the former Swedish Minister responsible for immigration is therefore formally correct, but, according to the author, it still has to be considered a "distortion of the truth" and is probably a way to avoid a discussion about the "criticized and complicated" interstate "cooperation". However, Thelander also calls in question the accusations made against the "cooperation" for bringing about a more restrictive policy. As accounted for above, she stresses the prospect of the opposite scenario. The cooperation would thus be a way to stop the "downward spiral" of restrictive measures adopted by the individual Member States.
The European Community, Sweden and refugee policies
Since a summary of my earlier paper, EG, Sverige & flyktingpolitiken, can be found in the Appendix, I will in this chapter confine myself to a presentation of a discussion related to Kristof Tamas' conclusions as accounted for above.
To begin with, let us recapitulate the definitions of cooperation and harmonization already accounted for; harmonization is the approximation of national policies; "the divergence between [the policies] has to be reduced" and might eventually disappear; cooperation is the "drawing-up of agreements that regulates the nation states obligations towards each other".
In the introduction of EG, Sverige & flyktingpolitiken, the question is raised if not the harmonization itself may lead to a further restriction of the right to asylum. Backing this proposition is the need for mutual confidence and the possibility that it materializes in a downward harmonization with the policy pursued by the least "generous" state as its target.
In line with this thinking, Tamas' medicine against a gradual restriction of the right to asylum, harmonization, would in itself imply a further restriction. However, in accordance with Tamas' reasoning, once the harmonization is completed, the possibility of subsequent restrictive measures by individual Member States is curbed.
Back to the paper being presented. It is noted that in the 1991 Report on Immigration and Asylum, it is affirmatively stated that the cooperation presupposes that the Member States have confidence in each other's refugee policies. To ensure this "mutual confidence", harmonization, of inter alia the right to asylum, is called for. In contrast, the Dublin Convention of 1990 - an outcome of the cooperation - establishes that an application for asylum shall be examined in accordance with the responsible state's national laws. It is consequently concluded that cooperation precedes harmonization.
Twenty-two pages earlier, when dealing with sovereignty, a division of autonomy is made into primary and secondary autonomy (sovereignty being "the autonomy of the nation state"). Referring to Lane 1977, primary autonomy is defined as the right to decide what actions to perform, secondary autonomy as the right to decide how to perform these actions.
By the provisions in the Dublin Convention, the state responsible for examining an application for asylum is determined. Through harmonization of provisions governing the right to asylum, and admission on humanitarian grounds, it is decided according to what rules an application shall be examined. Thus, cooperation implies giving up primary autonomy, harmonization giving up secondary autonomy.
It is finally concluded that the Member States obviously found it easier to give up "a portion of primary autonomy" than to start off by conceding secondary autonomy. However, when primary autonomy had been given up, "the Ministers responsible for immigration" suddenly seemed to "discover" that their respective country had lost control. To regain the loss, i.e. to ensure influence, and make sure that primary autonomy had not been given up in vain, they were now prepared to concede secondary autonomy, i.e. to accept harmonization.
It is also noted that similarly, the United Nations High Commissioner for Refugees, UNHCR, concludes that for the Dublin Convention to serve its objectives, harmonization of the right to asylum is necessary.
Asylum law - A study of Sweden and the European Community
In his paper, Maravgi Staifo sets out to "describe the evolution of the Swedish aliens legislation", primarily the provisions on asylum, and the European Community Member States' "cooperation in asylum and refugee matters and its effect on the Swedish asylum immigration" if Sweden joins the Community.
In the introduction, Staifo observes the existence of divergent opinions about the cooperation. On the one hand, the cooperation is said to imply "extended protection for refugees"; on the other hand, it is viewed as an outset of a "new iron curtain" along the external borders of the European Community.
Staifo then goes on with a retrospect of the Swedish aliens legislation, starting of by reminding us of the fact that between 1860 and the beginning of the 20th century, aliens were not subject to any kind of requirements for entry and stay in Sweden. The first Swedish Aliens Act subsequently entered into force 1 May 1915. Including this one, six Aliens Acts would march past before the present Act was passed by the Parliament in June 1989.
After having completed his historical journey, Staifo proceeds by thoroughly examining the grounds for asylum. When presenting statistics, he pays special attention to the "considerable" decrease in the number of aliens awarded asylum as convention refugees between 1989 and 1992. In 1989 and 1990, 17% of the aliens entitled to asylum were considered convention refugees, in 1991 the figure was 8%, and in 1992 only 5%. According to Staifo, a "probable explanation" of this downward trend is that the application of the provisions on asylum has been restricted.
Staifo then goes through the grounds for refusing asylum, e.g. the application of the so called principle of first host countries, before advancing to a description of the cooperation in the European Community. He begins by observing that the number of aliens applying for asylum in Western Europe has been more than fivefold from 1983 to 1991. Thereafter follows a presentation of the Treaty on European Union, the Schengen Convention, the Dublin Convention, the External Frontiers Convention, and the Report on Immigration and Asylum.
The author ends his study by ascertaining that the Dublin Convention restricts the opportunities for an asylum applicant to have his application examined by more than one country and that this brings about a situation were the applicants, to an increasing extent, turn to the countries pursuing the most "liberal" refugee policies. These countries might then "feel impelled" to restrict their provisions on asylum. As an example, Staifo offers Germany's much debated restriction of the right to asylum.
Moreover, according to Staifo, the External Frontiers Convention's provisions on sanctions on carriers which do not ensure that their passengers are in possession of travel documents and of the necessary visas, will "make it more difficult" for asylum applicants to reach the Member States of the European Community. This, since there is a considerable risk that aliens, not in possession of the papers required, but nevertheless in need of protection, will be denied transportation.
Introduction
The three governmental reports presented below are published by the Swedish Ministry of Foreign Affairs. The second report deals specifically with different aspects of the abolishment of the internal border controls in the European Union, while the two other ones also cover other policy areas affected by Swedish membership. The report first in line was published before the membership negotiations started in February 1993. The two following were published during the autumn of 1993 while the negotiations were under way.
Consequences of Swedish membership in the European Community
The publishing of this report, a so called "Green book", coincided with the Swedish application for membership in the European Community in June 1991. As a "part in the Government's striving to provide comprehensive and detailed information", it sets out to "provide a basis for the continued discussion about the consequences of Swedish EC-membership".
The report goes through various policy areas, e.g. trade policy, environmental policy, etc., and after having turned over 278 pages, we find the heading "Free movement of persons". In this chapter, it is established that the realization of the internal market "includes" the abolishment or, "in any case simplification", of the checks on entry at the internal borders. It is therefore also concluded that accordingly, matters concerning the checks at the external borders, e.g. visa policy and the distribution of responsibility for asylum applications, are appropriate subjects for consideration.
It should be noted that the first matter, visa policy, was subsequently dealt with within the scope of the External Frontiers Convention (and later the Treaty on European Union). However, at the time of the publishing of the report, the only agreement completed, concerning the checks at the external borders, was the Dublin Convention, dealing with the second topic, the distribution of responsibility for asylum applications.
The report declares that Sweden, along with other EFTA-countries, the United States and Canada, have announced interest in an accession to the Dublin Convention. Subsequently a so called "parallel convention" was drawn up for the purpose of making it possible for non-Member States to accede the desirable (?) convention.
It is further emphasized that the External Frontiers Convention has to be coordinated with the Agreement of the Nordic Passport Union. Several "technical solutions" are said to have been discussed. However, no hints concerning the substance of these solutions are given in the report.
The report's final conclusion is that Sweden, as a Member State of the European Community, "naturally" will participate in the work to accomplish the abolishment or "simplification" of the internal border checks. The participation concerns inter alia "asylum matters" and involves an accession to the Dublin Convention - "in the event that such an accession has not become a reality already before then". However, the report does not account for any consequences of the participation itself.
Border controls in the perspective of Swedish membership in the European Union
Two and a half years after the publishing of the report "Consequences of Swedish membership in the European Community", a committee, as instructed by the Government, presented the report here considered. It promises to describe the consequences of, on the one hand, Swedish "participation in the frontier-free internal market" and, on the other hand, Swedish adoption of the European Union's provisions concerning the checks on entry at the union's external borders.
The report starts off by giving a background to "a Europe without internal borders", it goes through the concepts external and internal border, and discusses the interpretation of article 7a of the Treaty of Rome. Following these three opening chapters, the consequences of the "free movement of goods" is accounted for. And, thereafter, we find a description the consequences of the "free movement of persons".
The report establishes that to "maintain a high level of security", the abolishment of the internal border checks in the European Union brings to the fore "the need to strengthen the external border checks" and necessitates cooperation in the fields of immigration and combat against crime.
Further on the report discusses the External Frontiers Convention. It also accounts for a Recommendation regarding practices followed by Member States on expulsion of people unlawfully present in their territories and mentions a Recommendation regarding transit for the purpose of expulsion from 1992. Neither of these two documents are available to the public. Thereafter, inter alia the 1993 Draft Recommendation concerning checks on and expulsion of third country nationals residing or working without authorization is introduced. The report also mentions that a convention on an international information system for identification of aliens who apply for asylum in more than one Member State might be drawn up.
When the External Frontiers Convention is discussed, it stated that by the EEA Agreement and the Agreement of the Nordic Passport Union, Swedish and other Nordic nationals may enter the European Union via Denmark "in the same line as nationals of the EC-countries". However, recalling the discussion in Chapter 1, it is obvious that the report misses the point that via an internal Nordic border, persons may enter Denmark without standing in a "line" waiting for compulsory passport/identity inspection. This holds true since "freedom from passport inspection" prevails within the Nordic Passport Union.
After the above defective conclusion, we find the heading "Immigration and asylum policy". First, the Report on Immigration and Asylum, the Dublin Convention, and the Resolution on a harmonized approach to questions concerning host third countries are introduced. It concludes that the Dublin Convention is not contrary to Swedish law or practice and that by it, an asylum applicant can be refused entry if his application already has been examined by another Member State.
Then follows an examination of the Resolution on manifestly unfounded applications for asylum and the Conclusions on countries in which there is generally no serious risk of persecution. The report concludes that these two documents necessitate amendments of the Swedish Aliens Act.
It then finally states most laconically that Swedish membership in the European Union would increase the possibilities to "master streams of refugees".
Awaiting Swedish membership in the European Union
Like its 1991 predecessor, this report is a "Green book". It is a "part in the Government's striving to provide comprehensive and detailed information" about what Swedish membership in the European Union involves. "It is therefore my hope", writes the former Swedish Minister of European Affairs, Ulf Dinkelspiel, in the foreword, "that this information and analysis [...] shall constitute an important contribution to the debate about Swedish EU-membership".
Under the heading "Border controls, cooperation in the in fields of justice and home affairs", the Dublin Convention is said to deal with "certain police cooperation". What this means is not made clear. As the previous "Green book" pointed out, the Dublin Convention is about the distribution of responsibility for asylum applications.
The remaining part of the same section is primarily a very brief summary of the corresponding chapter on "free movement of persons" in the report "Border controls in the perspective of Swedish membership in the European Union". However, no consequences of the implementation of the Dublin Convention, or of the recommendations and resolutions mentioned in this report, are accounted for in the current "Green book".
Academic papers
What overall picture emerges from the four summarized papers? Let us begin with Kristof Tamas and his assertion that during the second half of the 1980's many countries restricted the right to asylum. As was shown, based on theories of international regimes, Tamas concluded that to avoid further restrictions a more far-reaching harmonization of refugee policies is necessary since a harmonization of national legislation on asylum would imply the introduction of "norms, principles and rules" necessary for mutual confidence to prevail. Pending the harmonization, the cooperation, e.g. the application of the Dublin Convention, gives rise to "negative competition", i.e. a striving of each individual state to appear less attractive to asylum applicants than its neighbouring states.
Similarly Maravgi Staifo concluded that the application of the Dublin Convention brings about a situation were the asylum-seekers, to an increasing extent, turn to the countries pursuing the most "liberal" refugee policies and that therefore these countries might "feel impelled" to restrict their provisions on asylum. One restrictive measure and Tamas' "negative competition" begins.
It cannot be sufficiently emphasized here that in the Report on Immigration and Asylum, it is stated that the cooperation presupposes that the Member States have confidence in each other's refugee policies. To ensure this mutual confidence, like Tamas, the Ministers responsible for immigration call for harmonization of inter alia the right to asylum. In addition, as I noticed, similarly the United Nations High Commissioner for Refugees, UNHCR, considered harmonization of the right to asylum to be a necessary prerequisite for the working of the Dublin Convention.
Moreover, Tamas noted that the legislation on asylum varies "tremendously" from country to country in Western Europe and received support from Mia Thelander, who pointed out that there exist "substantial differences" within the European Community as regards the interpretation of the Geneva Convention. She established that this is the reason why many countries have restricted the right to asylum and that the lack of coordination has brought about a "vicious circle" in which Member State after Member State, in fear of becoming the "most generous country", constantly adopts more restrictive provisions. Like Tamas, Thelander concluded that the only way to stop this "negative trend" is probably a harmonization of the Member States' refugee policies.
Thelander further established that the debate about the cooperation/harmonization has "to a large extent been characterized by faulty and contradictory information". She criticized the former Swedish Minister responsible for immigration for attempting to avoid a discussion about the issue and also called in question accusations made against the cooperation/harmonization for bringing about a more restrictive policy. In EG, Sverige & flyktingpolitiken, I raised the question if the harmonization, i.e. not exclusively the cooperation, might do just that on account of the need for mutual confidence and the possibility that it materializes in a downward harmonization with the policy pursued by the least "generous" state as its target. If this objection holds true, harmonization would in itself imply a further restriction, but once the harmonization is completed, the possibility of subsequent restrictive measures by individual Member States would be curbed.
Staifo observed the existence of divergent opinions about the cooperation/harmonization. On the one hand, he wrote, it is said to imply "extended protection for refugees"; on the other hand, it is viewed as an onset of a "new iron curtain". In his conclusions, he agreed with the latter opinion on the ground that sanctions on carriers and the Dublin Convention might contribute to the realization of a "wall" along the external borders of the European Community. Staifo's conclusions are, however, not complete as he fails to account for the possible effects of harmonization of provisions on asylum and admission humanitarian grounds - Tamas' and Thelander's medicine against "negative competition".
When it comes to sanctions on carriers, Staifo concluded that this provision will "make it more difficult" for asylum applicants to reach the Member States since there is a considerable risk that aliens, not in possession of the necessary documents, but nevertheless in need of protection, will be denied transportation. I reached the same conclusion. Thus, harmonization or not of admission rules, the sanctions involve a risk that persons with well-founded claims for asylum will be denied the opportunity of applying for asylum. If a person does not get this chance, it does not matter if the admission rules are further restricted or if the "negative competition" is curbed by imposed harmonization.
The overall picture? Harmonization of national provisions on asylum and admission humanitarian grounds implies the introduction of "norms, principles and rules" necessary for mutual confidence to prevail. As the cooperation presupposes that the Member States have confidence in each other's refugee policies, without harmonization, the cooperation will increase the already existent "negative competition" brought about by lack of coordination of national admission policies. Therefore, to put an end to this competition leading to more and more restrictive national admission policies, harmonization of these rules are necessary.
Governmental reports
What about the governmental reports "striving to provide comprehensive and detailed information"? Do they "provide a basis for the continued discussion about the consequences of Swedish EC-membership"? Do they "constitute an important contribution to the debate about Swedish EU-membership"?
We are informed of the fact that to "maintain a high level of security", the abolishment of the internal border checks in the European Union brings to the fore "the need to strengthen the external border checks" and necessitates cooperation in the fields of immigration and combat against crime.
We are then told that the Dublin Convention is not contrary to Swedish law or practice and that by it, an asylum applicant can be refused entry if his application already has been examined by another Member State (cf. Staifo's conclusion). The Resolution on manifestly unfounded applications for asylum and the Conclusions on countries in which there is generally no serious risk of persecution necessitates amendments of the Swedish Aliens Act. It is concluded that Swedish membership in the European Union would increase the possibilities to "master streams of refugees".
It is stated that the External Frontiers Convention has to be coordinated with the Agreement of the Nordic Passport Union, but we are not told how this is to be done. It is reported that by this agreement, and the EEA Agreement, Swedish and other Nordic nationals may enter the European Union via Denmark "in the same line as nationals of the EC-countries". We are, however, not told that via an internal Nordic border, persons may enter Denmark without standing in a "line" waiting for compulsory passport/identity inspection.
It can thus be concluded that if consequences is to denote the outcome for the persons who are subject to the agreements resulting from the "cooperation in the fields of justice and home affairs", the summarized reports do not have much to tell us about the consequences of Swedish membership in the European Union when it comes to refugee policy.