4. RESTRICTED ASYLUM
The rationale sustaining this approach has been the growing reluctance of states to offer asylum-based protection (Newland 1999, Roberts 1998) often attributed to their concern with the economic burden and the exacerbation of existing racial, ethnic and national tensions; this trend was initiated by industrialised countries which multiplied measures designed to pursue it and thus created a model influencing reception countries in other parts of the world; as testified by the UNHCR ‘non-compliance with international treaty obligations for refugees is becoming something of a global norm’ (MacNamara 1997:57 quoted by Suhrke 1998). For Suhrke (1998) the most dramatic feature of the refugee scene in the 1990s is thus the globalised restriction on asylum. It has sometimes led to the coining of the phrase ‘the non-entrée’ regime (Chimmi 1998). The European Union in particular prepared conventions and a great number of soft instruments to that effect (Joly 1996). The theme of 'bogus' asylum-seekers abusing the asylum system is being peddled repeatedly to justify restrictions. Non-industrialised countries have also been shown to refuse entry in an increasing manner: it has been argued that this is grounded in the problems of declining economies, population pressures and a growing awareness of the ecological cost of hosting large refugee populations exacerbated by the example originating from the richer states (Joly and Surkhe 1997). Paradoxically it is when an increased number of states adhere to the Geneva Convention that it is less and less implemented. The wings of the Convention are being clipped through an array of measures, including a joint action by the European Union on its definition of a refugee which excludes those for whom agents of persecution are not the state (Joly 1999). In the meantime, the dismantlement of communist regimes and the end of the Cold War have entailed that Central and Eastern European countries are gradually signing the Convention but are at the same time queuing up to adopt the EU acquis communautaire and its asylum regime.

The European Union directed its initiatives at the Geneva Convention which has become a residual instrument for the governing of refugees in Europe: Convention status is limited to 10% of asylum-seekers in Europe in 1995 and 1996 (Secretariat 1995, pp.418-19). An arsenal of measures introduced at European and national levels make it increasingly difficult for an asylum-seeker to fit the Geneva Convention criteria. The interpretation of the definition criteria is stricter and narrower: standard of proof of persecution, agent of persecution, internal flight alternatives (EU Joint Position on the harmonised application of the term 'refugee' in Article 1 of the Geneva Convention). The Council Directive (2004/831EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted) establishes that applicants will not be deemed in “need of international protection if in a part of the country of origin”, they are not at risk of persecution or serious harm and “can reasonably be expected to stay in that part of the country” (Article 8) thus confirming exclusion from status on the basis of internal flight alternatives. However non refoulement retains its authority as an established principle of international law, independently of and beyond the Geneva Convention criteria which to an extent entails that Article 1 and Article 33 of the Convention do not always coincide. As a consequence the majority of refugees have other statuses than Convention status. Those are disparate and there is no uniformity. (i.e. Duldung, Exceptional Leave to Remain, Asile Territorial). With temporary protection, a new concept enters the scene which is implemented through a variety of instruments in European countries.

Several instruments may lead to the granting of some sort of protection either directly or indirectly: Guidelines from UNHCR documents, the European Convention on Human Rights and Fundamental Freedoms (ECHR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, some in-house guidelines (i.e. in Sweden, permitting the granting of protection to deserters and war resisters). At a European level the Schengen and the Dublin documents both include 'discretion' clauses which enable specific governments to grant protection for 'humanitarian reasons' (Dublin Convention Article 9) or for reasons relating to national law (Schengen Agreement 1990 Chapter 7). There are also references made to the ECHR in European Union resolutions and conclusions (Joly 1994). Two specific instruments directly inform temporary protection, at European level: the Conclusion on people displaced by the conflict in the former Yugoslavia (London 30 November 1992), and the Resolution on certain common guidelines as regards the admission of particularly vulnerable groups of persons from the former Yugoslavia (Copenhagen 1-2 June 1993). One important characteristic of these instruments is that they are much weaker that the Geneva Convention as they fail to carry the same binding authority: they are mere guidelines. This applies even to the innovative EU texts on temporary protection which give clear recommendations at European level on the granting of protection to some groups of refugees.

A major shift is taking place determining who qualifies for some kind of status. Under these newer instruments group determination is being reintroduced, negatively and positively: EU Conclusions on countries in which there is generally no risk of persecution are related to the drawing up of lists of countries whose nationals are confronted with a negative presumption when they apply for asylum while temporary protection introduces group determination positively. The criteria for awarding protection are often vague or indirect such as Article 3 and 8 of the ECHR or Article 3 of the Convention against Torture whereas temporary protection introduces precise criteria on a different basis to the Convention criteria; they are time and place bound as opposed to universal and therefore much more restrictive.

UNHCR recommended the following categories of persons who could qualify for temporary protection:
. Persons who had fled from areas affected by conflict and violence
. Those who had been or would be exposed to human rights abuses including [as a result of campaigning] of ethnic and religious persecution
. Persons who for other reasons specific to their personal situation were presumed to be in need of protection (UNHCR 1994b).

The EU criteria come close to those of UNHCR (1994) and include, in general ‘those nationals of former Yugoslavia coming directly from combat zones who are within their borders and who are unable to return to their homes as a direct result of the conflict and human rights abuses’ and more precisely with regard to ‘vulnerable persons’ those who

. have been held in a prisoner-of-war camp and cannot otherwise be saved from a threat to life or limb
. are injured or seriously ill and for whom medical treatment cannot be obtained locally
. are under a direct threat to life or limb and whose protection cannot otherwise be secured
. have been subjected to sexual assault, provided that there is no suitable means for assisting them in safe areas situated as close as possible to their homes.

Return to the country of origin is stipulated as the main objective associated to the temporary protection status (Joly 1998).

A series of obstacles are set up by potential reception countries to place Convention status beyond reach. In the first place physical access to the country is rendered difficult through sanctions to transporters (Schengen and Dublin Conventions), entry and transit visas. Once in a country of reception, it is not guaranteed that asylum-seekers will have their case examined as they run the risk of being sent back to a 'third host country' through which they may have transited through the implementation of an EU Resolution on a harmonised approach concerning host third countries and re-admission agreements with countries of origin and countries of transit. (Recommendation concerning a framework text of a readmission agreement between an EU Member State and a third country 30.11.94 and 1.12.94.). The EU resolutions
on temporary protection also stipulate that beneficiaries must be coming 'directly from combat zones'. Additional obstructions hinder access to the full procedure and a number of asylum-seekers are diverted onto a short procedure or 'fast track' on procedural or substantial grounds: the Resolution on manifestly unfounded application for asylum (London 30 November - 1 December 1992), the Conclusions on countries in which there is generally no serious risk of persecution. On the whole temporary protection beneficiaries do not have access to the procedure for convention status.

Two other significant changes modify the paths to protection: in some cases access to the procedure is made possible outside the country of reception, in the country of origin or transit (i.e. for some temporary protection beneficiaries); and it has become impossible to apply in more than one country of the European Union (Dublin and Schengen Conventions).

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