The interest of European Union in regulating asylum is not to implement international human rights law standards but to control who is entering in the so-called ‘European Fortress' and who could bring benefits to this economic giant.
Prior to the Amsterdam Treaty, member states were cooperating regarding asylum matters within intergovernmental frameworks. This treaty brought the asylum issue at the European level to a new ‘locus' of the public power. Bringing this question of asylum to the regional level includes leading the implementation of international human rights standards and conferring, consequently, obligations on member states when implementing European Union asylum law.
Therefore, we are facing a fragmentation of the public power. At the international level, human rights standards are enacted such as within the Geneva Convention of 1951, which are then transposed at the regional level in the European Union, which is then implemented in the member states. This sounds absolutely logical and positive but, if we have a deeper look, we notice a ‘loss' of human rights standards. The will to harmonize at the European level results in what we call "minimum standards" to respect. Indirectly it is possible for the States to opt-out of this minimum standard. Furthermore, most of the implementation at the state level is done by directives, which leaves the choice to the Member State to implement it and especially to interpret it.
France will be illustration that the so-called "Patrie des droits de l'homme" (the homeland of human rights) is far away from this ideal and a long journey to change that lies ahead.
France has been very tricky about its international obligations with the so-called "waiting zones areas" and administrative retention centres. France always awaits condemnation by the European Court of human rights to change its legislation, though it is obvious that the state is violating human rights. Even when changing legislation the minimum is done. Judgments enacted by the European Court of Human rights are interpreted narrowly so that France gives the impression that it is exercising its public power and consequently its sovereignty.
What is even more shocking is the situation of minors asylum-seekers in France. French law does not differentiate them from adult asylum-seekers and does not provide for an adequate protection. Minors are also placed in the same waiting zones areas, isolated and not well informed of their rights. What is even worse is their inability to appeal a decision of rejection in their request for asylum. Indeed, according to the French legislation, children do not have the capacity to hire a lawyer or to appeal a decision; they need an ad hoc administrator to do it.
This gives rise to more difficulties and administrators are not systematically appealing the decisions.
This is morally unacceptable. Children seeking asylum are traumatized, if it is true that legally speaking they need to have a coherent story, the government should take into consideration the distress of their situation because it may prevent children especially from explaining their situation properly.
Children are lost in the waiting zones areas and it would be a good step if France were to change its legislation rather than staying passive and waiting for a condemnation by the European Court of Human Rights.
The example of child asylum seekers demonstrates the problem of harmonization and of the exercise of public power. How is the government more efficient if they only impose minimum standards? How do we insure that the interpretation of the law will be as uniform as possible? How should we adjust conflicting public powers at the European and national levels? How do we change the public power structure so that it will become exercised on behalf and in the interest of society?
Claire Schaepelynck is a masters student in international and European public law at Erasmus University of Rotterdam. She is writing her thesis on asylum and human rights.
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