Comment: EU asylum should not just be discarded

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The Independent Online
No citizen of any country in the European Union should ever need to seek asylum in another EU state, so which liberal pro-European could disagree that the time has come to abolish the right to do so? Well, we may be liberal and pro-European, but in our view this proposal is premature and potentially dangerous.

The abolition of asylum claims within the EU is, as we report today, one of the hitherto-unnoticed suggestions in the draft treaty tabled at last weekend's Dublin summit. The document proposes that "no citizen of a member state of the Union may apply for asylum in another member state." As no one can remember the last time any EU national was granted asylum in another EU country, this may seem like a bit of harmless tidy- ing up, of limited interest in the day-to-day. Nowhere in the EU as presently constituted is there any country where violence for political ends can be justified, and so it follows that there cannot be any "freedom fighters" seeking sanctuary. Nor can anyone in the EU suffer from, in the words of the 1951 Geneva Convention, "a well-founded fear of persecution" by their government on grounds of race, religion or nationality. So the argument goes.

And, as the EU is already an area in which there is free movement of people, made up of established democratic states which respect human rights, the Irish draft treaty argues that this would be a simplification to help create an "area of freedom, security and justice".

Well, hold on a minute. We should be treating the negotiations about Europe's future with the same level of seriousness and ambition as the drafters of the American Constitution. That is not our view: it is the view declared by John Bruton, the Irish Prime Minister, at the end of the summit last weekend. Let us put aside the unworthy thought that Mr Bruton, John Major and Helmut Kohl do not stand comparison with James Madison, George Washington and Benjamin Franklin. Let us instead welcome the idea of a European Constitution and look at what it means to be serious and ambitious about drafting it.

It is no good foisting a draft treaty entitled "Adapting the EU for the Benefit of its Peoples" on the peoples of Europe without a real attempt to consult and inform those same peoples. Specifically, the right to "internal asylum" may be largely theoretical, but it raises hugely significant issues, and it has not been debated in any meaningful way. There are further grounds for scepticism, in that far from being part of a disinterested attempt to simplify the laws of the EU "for the benefit of its peoples", this proposal seems to arise from a desire to appease the Spanish government. The Spaniards were outraged at the start of this year when the Belgian government refused to extradite two Basque separatists on terrorism charges. The Belgian authorities may have been swayed by reports of the appalling state of some Spanish jails, which could conceivably amount to "inhuman or degrading treatment or punishment" - a phrase from the European Convention on Human Rights which is often used as a definition of "persecution".

Now, all EU member states are signatories to the European Convention and so there should be no question of human rights abuse within the frontiers of the Union. But there is. The United Kingdom has in the past been found guilty of subjecting suspected terrorists in Northern Ireland to degrading treatment. And the procedures for enforcing rights under the Convention are cumbersome. More fundamentally, those rights are not part of EU law. They have been incorporated into the laws of some member states, but not others (such as Britain's).

It would be wrong in principle, therefore, for the EU to legislate to remove the right to internal asylum until it has also legislated to protect the human rights of its citizens. But this does indeed take us into the territory of a Constitution for Europe - which would be a good thing, but into which we should not stray by accident or stealth. The abolition of asylum within the EU would also be more credible if all EU countries had evidently fair procedures, and if the trend in our attitudes to refugees from elsewhere in the world were towards strengthening rather than weakening protection for the persecuted. Sadly, the trend is in the opposite direction. Michael Howard's posturing at the United Nations this week, to refuse asylum to those suspected of the "planning, incitement or funding of terrorism", cannot override the European Convention on Human Rights, which protects people from inhuman or degrading treatment "irrespective of the person in question". But it casts a dark shadow over the Home Secretary's intentions.

Until we do have a European Constitution, it is risky to argue that the Union is fast becoming such a perfect group of countries that the citizens of one would never need protection in another. The history of our Continent this century is not reassuring: we have seen paroxysms of violence and persecution in unlikely places. Politics can change, and there are still large fascist parties across Europe.

It might be argued that, because there are no applications for asylum within the EU (apart, apparently, from Jehovah's Witnesses who occasionally claim unsuccessfully that they are persecuted), there is no need for a right to asylum. A better argument would be that no protection should be removed until it can be shown that it will never be needed.