From the Member States’ point of view, the Maastricht Treaty was a positive step towards the development of more efficient asylum coordination. The Third Pillar codified and streamlined the old EPC co-operation structures. Co-operation remained of an intergovernmental nature, but some elements of the Community framework were also introduced. These consisted mainly in the participation of Community institutions, such as the Commission and the EP, and the built-in possibility of transferring some competence to the First Pillar. From the point of view of refugee protection, however, the new Treaty was less positive. The choice of an intergovernmental framework entailed an increase in the secrecy o f negotiations, a lack of democratic accountability and of public scrutiny. The respective roles of the Commission and the EP were very limited compared to their traditional ones and the Twelve failed to introduce any form of jurisdictional control.
Following the TEU, Member States continued to develop their asylum initiatives along the path set by the Schengen and Dublin initiatives. It was slowly becoming evident that those Conventions would not be able to function properly without further support measures. The Maastricht work-programme illustrated well the growing dichotomy between what even Member States perceived as the ‘correct’ choice in terms of refugee protection and what was simply considered politically feasible. The work-programme formally acknowledged the need for substantive harmonisation, only to subsequently ignore such need and proceed with proposing measures mainly aimed at controlling and curbing refugee flows. However, there were a few positive suggestions. The programme highlighted the need for exchange of asylum information in order to build a common platform for the DC. This proposal resulted in the setting up of the CIREA and the developing of country reports that were eventually made accessible - although grudgingly - to the public.
The Edinburgh initiatives did not represent any substantive harmonisation of national asylum laws. In the form of ‘resolutions’ or ‘conclusions’ they were only soft law initiatives that led to scarce and far from uniform implementation. The design o f the Twelve to build what was commonly defined as ‘Fortress Europe’
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started to slowly take shape. The ‘accelerated procedures’ principle openly disregarded many of the guarantees contained in the GC, such as not penalising applicants attempting an illegal entry, or making contradictory statements. Highly disputable principles, such as the ‘internal flight option’, were pushed through in the face o f popular opposition because the Third Pillar framework allowed governments the necessary secrecy.
Initiatives such as the one on ‘host third countries’ were undoubtedly aimed at creating a refugee ‘orbit’ around the Community (in direct contradiction with the claims of the DC). Moreover, the perimeter of this orbit kept being pushed further and further away by an ever more intricate web of readmission agreements. The hypocrisy of such a strategy was highlighted by the fact that Member States even resorted to ‘bribing’ neighbouring States with aid packages in order to dump their own unwanted refugees on them.
The ‘safe country’ principle was another keystone in the fortification of Europe’s perimeter. Again, since Member States were not capable of agreeing a common list o f ‘safe countries’, refugees ended up paying a heavy price due to the discrepancy between national policies. The various implementation surveys carried out showed that implementation could at best be described as erratic. This was symptomatic o f one of the biggest flaws in the Third pillar co-operation, namely the fact that soft law did not guarantee implementation. This highlighted the inherent paradox of the asylum system that the Twelve were in the process of building. The Schengen and Dublin initiatives had created a hard law asylum framework that still needed several adjustments in order to function in practice. However, by subsequently adopting soft law initiatives to support it. Member States failed to understand that the inability to monitor or ensure implementation would undermine the whole framework. In this respect, the asylum policy EU Members were slowly trying to build could not be characterised as a very successful one from their own point of view. It took the Twelve some years, though, to realise this failure. From the refugee protection point of view however, this failure, produced a rather fortunate collateral effect, in that prospective asylum seekers were still able to take advantage of the differences in national asylum legislation.
Bearing in mind what Member States were trying to build, it should not be difficult to imagine the potential odyssey of hypothetical refugees. Even if they had overcome the hurdle of visa restrictions and carrier sanctions, they would still have to make sure not to go in transit via any other country, otherwise readmission agreements or the host third country principle might entail a potentially endless chain of expulsions. In the event of those refugees making it directly into the Community and managing to lodge a claim, DC members would first have to allocate among themselves the responsibility for their asylum claims. Furthermore, potential applicants would have to ensure that all their papers were in order and that their entry was not illegal. Their story would also have to be perfectly coherent and supported by heaps of admissible evidence - the burden of proof being most likely placed on them anyway. Finally, their account should not have contained the slightest contradiction, in order for their applications to avoid accelerated procedures or being thrown out for being ‘manifestly unfounded’ - a term so vague even their lawyers would have difficulty explaining it to them. Surely this scenario could not possibly have been the one the drafters o f the 1951 GC had in mind. All this evidence pointed inevitably to the fact that EU Members were slowly abandoning their previous commitments towards true refugee protection.
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CHAPTER IV
ASYLUM CO-OPERATION BETWEEN MAASTRICHT AND AMSTERDAM