CIAO DATE: 10/00

The External Effects of the European Union Refugee Regime: Impact on Asylum in the United States

Joan Fitzpatrick, Jeffrey Brotman and Susan Brotman

International Studies Association
41st Annual Convention
Los Angeles, CA
March 14-18, 2000

 

Introduction

Analysis of the external effects of the emerging European Union refugee regime generally focuses on East and Central European transit states, Mediterranean states and refugee-generating states. The potential impact of EU standards and procedures on major non-European asylum states is less visible and less frequently examined.

With the entry into force of the Treaty of Amsterdam, binding EU standards on procedures for status determination, reception of asylum-seekers, asylum eligibility, complementary/subsidiary forms of protection and temporary protection will be adopted on a fixed timetable. Because clear and detailed international standards on these matters are lacking, common rules drafted under the framework of the Treaty of Amsterdam represent the first significant transnational codification of refugee protection standards since the adoption of the 1967 Protocol and the 1969 OAU Convention. The delay in full communitarization of migration-related measures and the "variable geometry" of the opt-in, opt-out protocols for Denmark, Ireland and the United Kingdom diminish the immediate significance of the new harmonization process. But the resulting norms cannot but exert some gravitational force on policy in non-European asylum states, especially those like the United States that share similar democratic values and serve as magnets for asylum seekers.

No strong explanatory or predictive theory can map the future external effects of EU asylum policies on the United States. The fact that emerging EU legislation will carry the collective weight of the Community is not especially relevant, because these matters will continue for the foreseeable future to be governed at the national level in the United States. If the United States is to follow the EU's lead, it will be the result of emulation, not negotiation. Under Article 6 of the Treaty of Amsterdam, Community legislation must conform to basic human rights principles. Because the United States shares obligations under the 1951 Refugee Convention and 1967 Protocol and human rights treaties with its EU counterparts, minimum EU standards should exert upward pressure on U.S. practices that diverge in a restrictionist direction.

The diffusion of knowledge concerning harmonization under the Treaty of Amsterdam will take channels that do not lead to easy prediction of EU impact on U.S. policy. There is no transnational "epistemic community" whose technical expertise and common policy prescriptions have a strong shaping influence on the formation of national asylum policy. Knowledge of EU asylum harmonization is certainly not widespread in the United States, but its primary disseminators are a transnational advocacy, rather than scientific, community. This community will play a meaningful lobbying role if U.S. policy makers are to be influenced by the EU example. But their willingness to promote emulation of the EU hinges on whether "best practice" emerges from the Treaty of Amsterdam process.

Another potentially limiting factor is that Congress, which has no natural links to the EU and which is highly susceptible to fluctuating domestic political factors, sets much of U.S. asylum policy. Under the plenary power doctrine, asylum adjudicators and reviewing courts are reluctant to question policy choices of Congress even where legislation fails to conform to treaty obligations. EU influence on Congress will be at best indirect, and will hinge upon the willingness of the transnational advocacy community to lobby for legislation that converges with EU interpretations of shared treaty obligations and EU standards on other asylum-related matters.

Officials of the Executive Branch (primarily in the Department of State) have regular contact with European counterparts and an interest in promoting common understanding of international obligations under the Refugee Convention and Protocol. However, the Department of Justice issues most asylum regulations and adjudicates asylum claims. Again, the transnational advocacy community may propose regulatory innovations and submit comments on draft regulations in an effort to promote convergence between EU and U.S. standards. A model for this type of convergence is the "Considerations for Asylum Officers, Adjudicating Asylum Claims from Women" issued by the Immigration and Naturalization Service (INS) in 1995 and strongly influenced by an organized advocacy community that drew upon previous "best practice" in Canada.

United States courts and administrative adjudicators may rely on European interpretations of shared treaty obligations and thereby achieve a certain degree of convergence, but typically these bodies neglect such influences. As noted above, contrary Congressional directives are privileged in domestic law. Where administrative officials resist compliance with international norms under ambiguous statutory commands, U.S. courts rarely seek international or comparative guidance to override these restrictive Executive interpretations.

The emerging EU refugee regime, even if not greatly emulated in substance, could also have a practical impact on refugee protection in the United States. For example, new Community legislation on refugee eligibility may be deficient in light of U.S. understandings of the 1951 Convention and 1967 Protocol, as was the earlier joint position on the subject. The German refusal to accept asylum claims from victims of non-state persecution resulted during the 1990s in the anomalous practice of refugee resettlement of Bosnian asylum seekers from Germany to the United States. A repeat of such resettlement, or the movement of asylum seekers from the EU to the United States, could result if Community legislation takes a restrictive turn.

The influence of earlier EU harmonization efforts on U.S. asylum policy has been modest, both because of the limited nature of the pre-Amsterdam process and because of peculiarities of asylum policy in the United States. Social policies affecting treatment of asylum seekers and refugees in the EU and the United States are sometimes starkly divergent. Domestic political factors may drive policy in an idiosyncratic direction. But where common problems are faced and existing domestic practices do not provide an adequate solution, the EU model could usefully shape U.S. asylum policy. Future developments remain highly speculative, not only in terms of the content of the EU standards but in terms of potential EU-U.S. interaction. This paper attempts to identify areas of more or less likely convergence, with tentative predictions.

 

Scope for Conscious Parallelism

Major asylum states in three regions face common problems and share international obligations and democratic values. During the early 1990s they experienced sharp increases in the rate of asylum applications, backlogged caseloads, perceptions of rampant abuse of the asylum system by economic migrants, concern with organized smuggling, anxiety over costs of status determination and pressure to regain control through detention or draconian non-entrée measures.

At the same time, the entry of foreigners was perceived as a matter of public order and safety and thus at the heart of national sovereignty. Ceding control over migration to supranational authority is a delicate matter politically, a fact reflected in the compromises of the Treaty of Amsterdam.

Intergovernmental consultations and the Executive Committee of the High Commissioner's Programme provide fora for policy coordination, but little convergence in national asylum procedures and standards has resulted from such dialogue. Formal recodification of refugee treaties has not occurred, despite frequent claims that the 1951 Refugee Convention is obsolete.

More intense dialogue over asylum harmonization occurred among members of the EU, in a process unfortunately associated with crime control objectives and roundly criticized for lack of transparency and consultation. Significant understandings reached in London in 1992 by EU ministers on matters such as "manifestly unfounded" asylum claims, for example, were not even published in the Official Journal. The European Commission shared the power of initiative with member states, the European Parliament played a marginal role, the United Nations High Commissioner for Refugees (UNHCR) was kept at a distance, and non-governmental organizations clamored for access. To the extent the EU produced binding agreements rather than soft law documents, these were separate public international law instruments, not Community legislation.

The implementation system under the Refugee Convention and Protocol is, even by human rights standards, unusually decentralized and dependent upon national good faith. There is no international refugee tribunal with authority to cancel refoulement at the behest of individual asylum seekers. The UNHCR has neglected its Article 35 capacity to demand reports on state compliance, and thus scrutiny and criticism of non-conforming national policies occurs ad hoc.

States parties have consequently enjoyed a high degree of autonomy in the substantive and procedural implementation of their obligations under the Refugee Convention and Protocol. The UNHCR Handbook and the Conclusions of the Executive Committee (ExCom) represent the most significant centralized sources of interpretive guidance, and one interesting question for the future is how EU legislation will accommodate UNHCR authority. Pursuant to a Declaration attached to the Treaty of Amsterdam, systematic consultation with UNHCR and other relevant international organizations is to occur during the drafting of Community asylum legislation.

The decentralization and incoherence of the international refugee regime has arguably operated to the advantage of the United States. For example, harsh deterrent measures such as high seas interdiction have been adopted and sustained in the face of international criticism, on a dubious claim of consistency with the Refugee Protocol. U.S. asylum law and practice present a strangely mixed picture, with generous elements and deeply troubling deficiencies. By examining the past, relatively modest impact of EU harmonization on U.S. policy, some clues concerning future influence may be gleaned.

 

Past EU Influence on U.S. Asylum Policy

In two somewhat interrelated areas, pre-Amsterdam EU initiatives have figured in a modest way in shaping U.S. asylum policy. These are the safe third country concept and expedited removal, both of which were codified by Congress in 1996. The first measure has not yet been implemented, in part because Congress imposed the second. The two are also related in that summary rejection of asylum claims within the European context may rest upon the availability of a "safe third country," or alternatively on an evaluation that the claim is "manifestly unfounded." In U.S. practice, expedited removal is imposed if an arriving asylum seeker lacks proper documents and is unable upon arrival to articulate a "credible fear" of persecution.

Safe Third Country

The Dublin Convention, the most concrete and legally binding product of EU asylum harmonization, has been the subject of relentless criticism while proving a disappointment to authorities. It is slated to be replaced by an instrument of Community law, which may take a fundamentally different approach. The process for determining the state responsible for considering an asylum application has added layers of complexity to the early stages of the status determination process, while exposing applicants to risks of chain refoulement.

The decision by the U.K. Court of Appeal that Germany and France are not safe third countries because of their refusal to recognize asylum claims by victims of non-state persecution reflects the incompleteness of the EU's previous harmonization process. Agreements to defer adjudication to other national authorities cannot be made in confidence absent shared, internationally lawful norms for asylum eligibility.

Despite its flaws, the Dublin Convention arguably had more influence on U.S. asylum law than other EU initiatives, although so far only in a formal sense. The idea of "safe third countries" to which arriving asylum-seekers can be removed expeditiously, without guilt or expenditure for assessment, holds a powerful attraction for asylum states. The U.S. Congress proved susceptible to this lure, and the tidal wave of restrictionist immigration legislation enacted in 1996 included a "safe third country" provision.

However, the implementation of this provision was made contingent upon "a full and fair procedure for determining a claim to asylum or equivalent temporary protection" in the third country and "a bilateral or multilateral agreement" with it. No such agreements have yet been concluded. Though negotiations between the United States and Canada did occur, they were suspended and then terminated because other elements in the 1996 legislation undermined Canadian confidence in the fairness of the U.S. asylum system. In particular, Canadian authorities reacted negatively to the expedited removal process. While that process includes provision for "credible fear" screening of arriving asylum-seekers, it remains quite unclear whether the screening is adequate and whether border officials are consistently referring to asylum officers those who express a fear.

 

Expedited removal

The European practice of truncated border procedures for arriving asylum seekers may have set an unfortunate example for U.S. policy-makers, though domestic pressures also fueled political demand for a summary process. Those subject to expedited removal are arriving aliens who lack documents or whose documents are believed by border officials to be false or otherwise inappropriate.

Under pressure from refugee advocates, Congress included an exception from expedited removal for persons able to articulate a "credible fear" of persecution during initial questioning. The House of Representatives sought to establish a very high threshold of proof for a showing of "credible fear," but the final standard was more relaxed, if vague. Ironically, in the debate between members of Congress over the definition of "credible fear," the EU resolution on manifestly unfounded claims played a moderating role, along with Executive Committee Conclusion 30 (1983) on the same subject.

The focus of expedited removal is technical deficiencies in the mode of arrival. By showing a "credible fear," however, the asylum seeker proffers a substantive justification for arrival that either explains or overcomes these procedural defects. The debate in Congress over the threshold for "credible fear" essentially involved disagreement over how this balance should be struck. Which irregularly arriving asylum seekers should be permitted access to adjudicatory officials, beyond the inspections officers at the border, was the question. The answer essentially turned on the nature and quality of the substantive claim that the asylum seeker was able to articulate upon arrival and during the subsequent phases of credible fear screening. Those who survive "credible fear" screening are permitted a full removal hearing, with time to prepare a proper asylum application and to present it in an adversarial setting.

The relevance of standards on manifestly unfounded asylum claims to expedited removal is not intuitively obvious. Claims that are manifestly unfounded are profoundly deficient in substance, either because the story is clearly false or because the articulated fear does not relate to a basis for refugee status. The mode of the applicant's arrival logically has no relevance to the well-foundedness of the claim. A person long resident in the asylum state may file a manifestly unfounded claim; claims made upon arrival are not inherently more dubious or ill-conceived.

In the European context, however, the applicant's travel route (i.e., through a "safe third country") may very well result in summary exclusion without substantive consideration of the claim. Moreover, applicants fleeing claimed persecution in a "safe" country of origin risk having their claims regarded as manifestly unfounded because of the presumption against the credibility of their fears. But because the United States has not implemented its "safe third country" provision and has no formal list of safe countries of origin, expedited removal is not applied in conjunction with these concepts.

Once Congress conceded that bona fide asylum seekers should be exempted from expedited removal, a standard for testing bona fides became necessary. In this indirect manner, the manifestly unfounded notion, portrayed as setting a low threshold for escaping summary rejection, became an argument against a stringent definition of "credible fear." For example, Representative Patricia Schroeder unsuccessfully pleaded with her colleagues on the House Judiciary Committee in 1995 to emulate EU experience:

[My amendment] brings the standard to bear that has been the one held by international consensus in the European Community for over 12 years. So if my amendment were adopted, the we would be in line with the -- what the European Community and the international consensus has been vis à vis refugees.

Rep. Schroeder appears to be conflating the EU standards on manifestly unfounded claims with Executive Committee Conclusion 30. Refugee advocates had cited Conclusion 30 during testimony on earlier versions of the expedited removal legislation, urging a broadly defined exemption for arriving asylum seekers. Restrictionists in the House specifically rejected international guidance. The Administration urged Congress to add language that would clarify that "by using the term `manifestly unfounded' the committee intends to adopt the international standards, e.g., in the resolution on `manifestly unfounded' asylum applications adopted by the immigration ministers of the European Union," and not the standard for frivolous claims that previously governed issuance of work authorization to asylum applicants. From the Administrative perspective, the EU standard raised the bar for credible fear screening above other more relaxed interpretations of this unclear term.

Ultimately, a compromise on "credible fear" was adopted, but EU standards do not appear to have played a significant role. The Immigration and Naturalization Service (INS) has chosen not to issue regulations elucidating this new and untested legal concept. Its meaning may evolve through administrative practice, but unfortunately that practice is non-transparent to an unusual degree in U.S. asylum law.

 

Future EU Influence on U.S. Asylum Policy

The agenda for asylum harmonization under the Treaty of Amsterdam is an ambitious one. Five key areas to be tackled during the initial phase are procedures for status determination, reception of asylum seekers, standards for asylum eligibility, complementary/subsidiary forms of protection and temporary protection in situations of mass influx. Of these five, two are unlikely to exert significant influence on U.S. practice because of disparities in legal and social cultures. Of the remaining three, some modest effect could occur, depending upon the success of the EU process.

Procedures for Status Determination

The Commission will produce a legislative proposal, building upon the earlier soft law resolution on minimum guarantees, within the initial two year period under the Treaty of Amsterdam. This initial harmonization process will deliberately respect the variations in administrative practice among the participating EU states. However, basic principles of fairness and efficiency will be established.

The articulation of these basic principles might have some marginal influence on U.S. policy. For example, the Commission suggests that a clearly defined and agreed burden of proof should be established for EU states, and that accelerated procedures might be unsuitable for cases presenting issues of credibility, internal flight alternative and the exclusion clauses of Article 1F. However, U.S. officials may be reluctant to rethink asylum procedures that have been significantly reconfigured over the past decade. And basic principle of fairness and efficiency may simply be too vague to cast U.S. asylum practices into doubt.

Were the EU to move dramatically toward centralized status determination, this development would be of interest to other asylum states. Replication of centralized regional status determination in the Americas seems unlikely, however, given the diversity of the region. The United States and Canada could possibly achieve some efficiencies by consolidating their mechanisms. But the failed negotiations over "safe third country" and Canada's tradition of generosity in asylum policy suggest likely obstacles.

Reception of Asylum Seekers

Partly out of concern for minimum respect for human rights and partly out of a pragmatic concern to avoid secondary movements to more generous states, the EU seeks to harmonize minimum standards for reception of asylum seekers. Relevant issues include work permits, education, housing, medical care, social welfare benefits and family reunification. Emerging EU norms are likely to reflect the strong social welfare and communitarian values of European societies.

From the perspective of the United States, the safety net extended to many asylum seekers in the EU is little short of astounding. The United States does not provide accommodation for asylum seekers except in detention facilities. Those unlawfully present in the United States are generally denied all social benefits, with the exception of emergency medical assistance and use of public facilities (parks, libraries, police and fire services, etc.). Undocumented children are permitted to attend public schools through the secondary level, not specifically as asylum seekers but because this is generally regarded as appropriate public policy and because state efforts to exclude them are unconstitutional. Under 1994 regulations, asylum seekers are denied work authorization until their claims are granted or, if still pending, until 180 days have elapsed since filing. Family reunification comes only upon a grant of asylum, which can carry derivative benefits for spouses and minor children.

Social benefits and work authorization for asylum seekers in the United States are denied as a deliberate deterrent measure. But the lack of social generosity persists even after the acquisition of lawful immigrant status. From a U.S. policy perspective, recent immigrants absorb important lessons in self-reliance by being excluded from portions of the social safety net. If immigrants assimilate these values, U.S. society is far less conflicted than many European polities about weaving them permanently into the fabric of the national community.

For the United States, forcing asylum seekers to depend upon their own resourcefulness and their informal family and community supports is, oddly, a mark of belonging in a culture stressing individualism and small government. In the EU, exclusion of asylum seekers from the benefits that form such an integral part of social life signals a lack of belonging and a disfavored status as "non-communitarians." Thus, conditions of reception for asylum seekers in the EU and the United States will not likely converge. Eligibility for Refugee Status

The 1951 Convention and 1967 Protocol are less laconic and deficient in defining eligibility for refugee status than in specifying procedures, conditions of reception and protection for persons fleeing in mass influx or from non-persecutory harm. Thus, reinterpretation of the refugee definition collectively by the EU Council may prove the most controversial plank of the initial Treaty of Amsterdam communitarization process. The earlier soft law resolution, by conceding that EU states could adopt narrow approaches toward agents of persecution, attracted sharp criticism. Agreement on generous standards of eligibility may prove difficult, while harmonized standards that depart significantly from the UNHCR Handbook or norms in other asylum states will cast doubt on the legitimacy of the EU process.

Substantive U.S. asylum law is expansive and progressive in significant respects. For example, a well-founded fear of persecution by non-state actors is clearly a ground for protection against refoulement. Past persecution is an alternate basis for relief. Resistance to coercive family planning policies is statutorily recognized as a protected political opinion. The Board of Immigration Appeals has accepted some innovative social group claims founded on gender-based harm, sexual orientation and clan membership.

On the other hand, U.S. asylum policy departs from prevailing international standards in disturbing respects. While the impulse of U.S. policy makers at the time of the enactment of the 1980 Refugee Act was explicitly to bring U.S. law into conformity with the 1967 Protocol, sensitivity to the international dimension of U.S. asylum policy appears to have diminished in recent decades. The Refugee Protocol is interpreted as having no extraterritorial effect, to justify interdiction without screening. A strict nexus between threatened harm and a protected status ground is often demanded. The grounds for exclusion under Article 1F and expulsion under Article 33(2) are unduly broad both by statutory mandate and by interpretation. In these matters, particular domestic political factors (such as Floridian fears of mass Haitian arrivals or hostility to "criminal aliens") drive U.S. policy making without regard for treaty compliance or shared understandings with other asylum states.

This erratic process of Refugee Convention reinterpretation is illustrated by the most significant U.S. statutory revision of the refugee definition since 1980, when in 1996 resistance to coercive family planning methods was added as a basis for asylum. The amendment reversed a series of administrative and judicial decisions rejecting such claims, for lack of nexus to a protected status. Peculiar domestic politics concerning abortion and contraception played an indisputable role. The tension between making a popular political gesture and undermining control objectives is manifest in the statutory cap of 1,000 annual asylum grants on this basis, the sole asylum quota in U.S. law.

Practices in the EU are given little attention when U.S. adjudicators interpret statutory language drawn directly from the 1951 Convention. For example, the EU Joint Position on a harmonized refugee definition provides that the "severity of the expected persecution is to be weighed against the nature of the criminal offence of which the person concerned is suspected" under Article 1F(b). Although the EU standard was brought to the attention of the United States Supreme Court in Aguirre-Aguirre, the Court made no allusion to it in rejecting the balancing approach. The Court also declined to follow similar guidance in the UNHCR Handbook.

The Supreme Court instead emphasized a principle of U.S. administrative law which directs reviewing courts to defer to an agency's interpretation of statutory language. This domestic canon essentially ignores shared international obligations, and clashes with a competing principle that statutes should be construed consistently with international law if at all possible. In Aguirre-Aguirre, the Supreme Court stressed the plenary power of Congress over immigration regulation and the peculiar diplomatic sensitivity of asylum protection. This reasoning downplays the relevance of UNHCR guidance and privileges the interpretive autonomy of the Executive Branch, even with respect to statutory language drawn directly from the 1951 Convention and rarely applied in U.S. practice. This deferential posture toward the political branches does not support an optimistic prediction that U.S. courts will boldly promote convergence with a progressive EU reinterpretation of the refugee definition, should one emerge under the Treaty of Amsterdam.

Without the involvement of the same transnational advocacy community that may disseminate EU standards by lobbying Congress or commenting on regulations, U.S. adjudicators are unlikely even to be aware of the emerging EU asylum regime. The extent to which Community asylum legislation will be referenced in amicus curiae briefs depends again on whether "best practice" results from the current harmonization process.

If Community legislation were significantly to clarify previously obscure aspects of refugee eligibility, it is conceivable that U.S. policy makers could emulate the EU. Past experience suggests that accomplishment of control objectives more easily attracts attention from distant policy makers. The Treaty of Amsterdam mandates common standards for the withdrawal, as well as the grant, of refugee status. The cessation clauses of the Refugee Convention have not been frequently applied by developed asylum states. A growing interest in facilitating repatriation and avoiding permanent integration of refugees is reflected in 1996 provisions enacted by the U.S. Congress to emphasize the temporary nature of asylum. Were the EU to begin seriously to terminate refugee status on grounds of changed conditions and to find public support for this policy, U.S. policy makers might follow suit.

Temporary Protection and Complementary/Subsidiary Forms of Protection

These topics are addressed in tandem because they are frequently confused. The Treaty of Amsterdam reflects this confusion, referring to complementary protection "for persons who otherwise need international protection" in the same article mandating Community legislation on temporary protection. However, the Commission appears well-aware that the need for responses to situations of mass influx where individual status determination is not possible or advisable (temporary protection), and the need for protection of certain persons who may not qualify as Convention refugees and who may arrive singly rather than as part of a mass influx (complementary/subsidiary forms of protection), are distinct matters.

The United States has yet to grapple with this realization. It lacks a policy on "temporary protection" as that term is now understood in the EU. However, Congress did successfully codify in 1990 a type of complementary protection (called Temporary Protected Status), which may provide some inspiration and guidance to the EU as it harmonizes the widely varied forms of humanitarian leave to remain that prevail in the region. Moreover, 1999 U.S. regulations incorporating the non-refoulement provision of the Convention Against Torture into both the affirmative and defensive asylum procedures may also encourage the EU to consolidate application of human rights bars to deportation with refugee status determination.

Temporary Protection During Mass Influx

Since 1997, the European Commission has pressed for harmonization of temporary protection (TP). The unwonted experience of mass influx in Europe during the 1990s, from Bosnia and later from Kosovo, significantly increased the profile of TP as a desirable alternative to Convention refugee status. The draft proposals for Council Joint Action submitted by the Commission in 1997 and 1998 constructively address several salient issues, including the process for triggering collective TP, periodic reassessment of conditions, minimum standards of treatment, benchmarks for termination and provision to limit the suspension of consideration of claims to Convention refugee status. The June 1998 draft unfortunately introduced greater flexibility for national variations in standards of treatment of TP beneficiaries. The drafts are disappointingly equivocal on the endgame when safe and dignified return remains impossible after an extended sojourn, and do not unambiguously oblige EU states to grant secure residence.

Nevertheless, the two draft proposals provide a solid foundation for Community legislation on TP. The EU model will represent the first formally coordinated regime for regional temporary protection. The predecessors, the OAU Convention and the Cartagena Declaration, deal only with a broadened definition of those eligible for protection, and do not address in detail the triggering mechanisms, common standards of treatment and other important matters.

EU legislation on TP will not itself consolidate all complementary and subsidiary forms of protection. If the legislation tracks the earlier Commission proposals, the decision to institute a TP regime during a specific crisis will be political, rather than an objective application of neutral criteria of eligibility.

Moreover, agreement on responsibility sharing need not occur simultaneously with the elaboration of TP standards under the EU plan. In June 1998 the Commission chose to present a separate Proposal for a Joint Action concerning solidarity in the admission and residence of beneficiaries of the temporary protection of displaced persons, presumably so that continued failure to agree on this matter would no longer postpone adoption of the TP Joint Action. Under the Treaty of Amsterdam, the politically delicate task of apportioning responsibility to accommodate mass influx is exempted from the five year deadline.

Although the United States has repeatedly faced situations of mass influx within its own region and recently cooperated in the Humanitarian Evacuation Programme for Kosovars, it continues to pursue ad hoc responses to mass migration crises. Some discussions have occurred regarding the construction of a regional system of temporary protection, but the economic and political disparities between the United States and its likely regional partners present challenges not faced within the EU.

Mass influx to the United States from nearby refugee-generating states may exact a costly domestic political toll because of ideological and racial sensitivities. Thus, U.S. officials prefer to tailor their responses to shifting public opinion. Policies have ranged from interdiction and forced repatriation, to extraterritorial "safe havens" (primarily Guantánamo naval base), to parole, to refugee admissions.

The Kosovars evacuated to the United States were admitted as refugees, and not placed in any form of temporary protection, despite the relatively short duration of the crisis. One explanation is that resettlement assistance is not available to beneficiaries of TPS, unlike refugees. TPS beneficiaries, like asylum seekers, are expected to fend for themselves. However, in the case of TPS, work authorization permits entry into the formal labor market. In contrast, EU states generally provide accommodation and other social benefits to those granted TP, while work authorization may be extended more grudgingly. Convergence between the U.S. and the EU on the question of social benefits during TP appears as unlikely as convergence on standards of reception for asylum seekers. Nor is the U.S. practice of granting refugee resettlement in order to assure access to social benefits (as in the case of the Kosovars) likely to sway the EU from its project of formalizing TP.

Agreement on basic TP standards in the EU may reinvigorate a tentative standard-setting process that has occurred within UNHCR, possibly leading to guiding principles or an Executive Committee Conclusion that might shape future U.S. practice. Further, the United States may collaborate with EU states in future mass migration emergencies that have been designated by the Council for TP, thus indirectly adopting the EU triggering criteria if not modeling EU standards of treatment.

Complementary/Subsidiary Forms of Protection

A wide variety of forms of humanitarian leave to remain currently exists in EU states. One of the challenges of harmonization under the Treaty of Amsterdam is to bring uniformity to these disparate measures, both substantively and procedurally.

The U.S. experience in codifying one form of complementary protection for non-Convention refugees has brought a degree of welcome coherence to a matter that was plagued by lack of transparency and Cold War ideology. Prior to the enactment of Temporary Protected Status (TPS), the Attorney General periodically granted a highly informal leave to remain (called, rather misleadingly, "extended voluntary departure" (EVD)) to certain groups unable to meet the refugee definition but who faced serious danger or hardship upon return. During the civil wars in El Salvador and Guatemala, the Attorney General resolutely refused to grant EVD to the large numbers of asylum seekers who arrived in the United States from those troubled nations. Controversy raged over this refusal, prompting the emergence of the "Sanctuary movement" and ultimately resulting in a statutory grant of TPS to Salvadorans in 1990.

Grants and termination of TPS have since occurred in a much less politically charged atmosphere. While the Attorney General's decision-making has not been a model of clarity, most grants and terminations of TPS have been reasonable, although there have been some notable omissions.

TPS does not function as an admissions program. Only persons who are already present in the United States at the time TPS is granted or redesignated can benefit. TPS thus bears similarity to some forms of complementary and subsidiary protection available in EU states. However, TPS is granted on a time-limited basis for groups defined primarily by nationality, through an application process that is separate from refugee status determination. The specific hardships faced by individuals are not the focus.

Hardship relief from deportation was truncated by Congress in 1996. It was not traditionally viewed as a type of quasi-asylum. Hardship relief was designed to waive grounds of deportation for persons who were lawful permanent residents or who had resided for an extended period in the United States, and thus were deeply integrated in the community and would suffer significant losses or harm (especially to citizen family members) if forcibly repatriated.

At the present, hardship cases outside the statutory grounds for cancellation of removal can only be accommodated by the exercise of informal prosecutorial discretion by INS charging officials. Like a duldung, this "toleration" bestows no secure legal status upon the beneficiary.

New arrivals may have a strong claim to humanitarian leave to remain. Emerging EU standards to protect persons fleeing generalized violence and other significant non-persecutory risks thus may provide a useful model for reform of the narrow hardship provisions in U.S. law, for the benefit of persons whose countries of origin have not been designated for TPS.

Human rights protections against deportation have assumed an increasingly prominent role in the work of mainstream human rights bodies, especially in Europe. The European Court of Human Rights has a substantial jurisprudence under Articles 3 and 8 concerning bars to repatriation where a risk of torture, cruel, inhuman or degrading treatment or punishment or an unjustified deprivation of the right to family life may result. The Committee Against Torture has considered a number of significant cases, largely against European states, posing similar non-refoulement issues. The Human Rights Committee has less experience in deportation matters, although Articles 7 and 17 of the International Covenant on Civil and Political Rights (ICCPR) closely parallel the torture and family life provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Among the foreigners eligible to claim the protection of these human rights bars to deportation are asylum seekers. EU harmonization appears likely to extend to human rights bars as well as to bring a measure of coherence to the disparate national practices in EU states relating to humanitarian leave to remain for non-Convention refugees. While the Commission has noted the value of integrating human rights bars into the refugee status determination process, the Action Plan set by the Council calls for common standards on asylum procedures by 2001, while harmonization of complementary/subsidiary forms of protection will occur on the five year timetable. Thus, integration will likely be delayed.

The United States has made some progress recently in integrating human rights bars to refoulement into the refugee status determination process. Persons filing affirmative asylum claims with an INS asylum officer may also (or alternatively) present a claim to relief under Article 3 of the Convention Against Torture. Similarly, persons in removal proceedings may request a grant of relief under the Convention Against Torture from the presiding Immigration Judge, just as they may seek asylum and withholding of removal in the course of those proceedings.

However, the United States has failed specifically to implement its obligations under Article 7 of the International Covenant on Civil and Political Rights, which is roughly equivalent to Article 3 of the European Convention on Human Rights. The peculiar resistance of the United States to its human rights treaty obligations and its decision to exempt itself from individual complaint mechanisms under human rights treaties mark significant disparity between U.S. and EU practice. While EU standards on complementary and subsidiary forms of protection are likely to incorporate the human rights bars to refoulement imposed by the European Convention on Human Rights and the ICCPR, the United States is under no equivalent pressure to integrate ICCPR obligations into its asylum process. The notion of international constraints upon the power of deportation is still uneasily accepted in the United States, more than three decades following ratification of the Refugee Protocol.

 

Conclusion

This paper offers admittedly speculative observations. The results of asylum harmonization under the Treaty of Amsterdam cannot yet be predicted, and no clear pathways exist to diffuse emerging EU standards into the U.S. asylum policy making process. Where shared challenges and gaps are recognized, EU standards that strike a politically palatable balance between control and humanitarian objectives may be emulated by the United States. However, in other underdeveloped areas where the EU might achieve real progress, as in constructing a regional framework for temporary protection and in defining complementary/subsidiary forms of protection, the United States may prove resistant to example. Convergence may well come slowly, and only by means of "consensual knowledge" actively disseminated by a transnational advocacy community that accepts emerging EU standards as "best practice" under shared treaty obligations.