Informal European asylum governance in an international context ...

Informal European asylum governance in an international context
Maarten Vink and Claudia Engelmann, Maastricht University
Chapter for T. Christiansen and C. Neuhold (eds.) (2011). International Handbook on
Informal Governance. Cheltenham: Edward Elgar.
Introduction
Informal governance processes in asylum policy, particular in a European context, have
frequently been attributed importance, yet received little systematic study so far. This
chapter aims at providing a first analysis of informal asylum governance, with a particular
focus on formal and informal governance structures in the evolving European asylum
system. The analysis is embedded in the wider framework of international asylum
governance.
Asylum policy is a politically and normatively sensitive policy field that highlights
particularly well the tensions between supranationalism and the prevalence of
sovereignty. On the one hand, the movement and recognition of refugees has an
undeniable cross-border character, determined by increasing interdependence of the
nation states. Hence there is a rationale for states to cooperate and develop common
policies, especially at a regional level. Asylum policy is further closely linked to
distributional questions, as some countries have to deal with a significantly higher
number of asylum seekers than others. On the other hand, asylum touches upon the
very heart of state sovereignty because it deals with the question who can enter the
country, and remain there, and who cannot. Thus there is a great diversity in national
asylum policies across the globe. These differences relate to, inter alia, the definition of a
refugee, procedures for grating and refusing asylum and the rights granted to asylum
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seekers. There have been several efforts at the European level to harmonize asylum
policies across EU member states. While increasing policy competence by successive
treaty changes have partly formalized governance structures and led toward the
development of common standards, asylum policymaking still depends to a large degree
on exchange outside formal decision-making structures. In this chapter we illustrate
these informal governance structures with the example of informal information exchange
mechanisms in the area of country of origin-information (COI). The case study is
embedded and preceded by an analysis of the development of informal European
asylum governance within the international human rights framework of the 1951 Geneva
Convention.
Christiansen, Føllesdal and Piattoni consider informal governance as ‘the
operation of networks of individual and collective, public and private actors pursuing
common goals – which lead to cooperation, patterned relations and public decisions –
through regular though non-codified and not publicly sanctioned exchanges in the
institutional context of the European Union.’ (Christiansen et al. 2003, p.7). The two
elements that are central to the definition of informal governance are, first, information
exchanges based on procedures that are not codified by formal or written rules and,
second, information exchanges are not publicly sanctioned. In the field of asylum
governance, we see a variety of institutional venues develop since the early 1990s, after
the introduction of asylum policy as a new area of Union competence under the
Maastricht Treaty, ranging from more the ‘formal’ end of the scale (codification in
treaties, such as the standing committee within the Council to promote cooperation on
internal security set up under Article 71 TFEU (ex Article 36 TEU)) to median forms
(codification in terms of references, mandates) to the ‘informal’ end (no codification at
all). Informal politics occur in different kinds, such as in policy networks (the relationship
between the European Commission and interest groups), in advocacy coalitions and
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epistemic communities or in inter-institutional relations (between Commission, Council,
Parliament, member states and even the Court of Justice) (Christiansen et al 2003, p.4).
This chapter seeks to focus on the latter by mapping formal and informal
intergovernmental exchange.
The chapter is divided into three sections. Section one presents an overview of
the international asylum governance structures evolved around the 1951 Geneva
Conventions. Section two focuses on European asylum governance showing that
increasing policy competences by successive treaty changes have partly formalized
governance structures, although informality and the exchange outside formal decision-
making structures remains in many bodies. Section three exemplifies one area where
informality still prevails by looking at the exchange of information on countries of origin.
Asylum governance in an international context
International cooperation for the protection of refugees became an issue in the early
twentieth century. During that time and due to the emergence of European nation states,
refugees and migrants were no longer allowed to cross borders without permission.
Current events – the massive refugee movements produced by the Balkan Wars, World
War I and the Russian Revolution – posed a problem to this closure of national borders
(Lavenex 1999, p. 5). European states soon realised that not only some sort of legal
status had to be given to these persons, but also that the refugee problem was one of
common interest for the international community.
Preceded by several other attempts to coordinate and acknowledge international
responsibility of refugees, the central international organisation for the protection of
refugees – the United Nations High Commissioner for Refugees (UNHCR) – was
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established in 1949. UNHCR prepared the 1951 Geneva Convention relating to the
Status of Refugees. The Geneva Convention is, together with its 1967 Protocols, still the
primary source of refugee law (for a comprehensive overview of international asylum
law, see Goodwin-Gill and McAdam 2007). It creates minimum standards for granting
not only basic protection but also granting rights to refugees and asylum-seekers,
including the right to work and the right to education. Negotiations leading to the Geneva
Convention reflected the main tension in asylum policy: The balancing act between
rights of the individual and rights of the state. A binding obligation on states to provide
asylum in the form of a subjective right of the refugee to receive asylum has never been
established. The international refugee regime has been – and still is – based on the
sovereign right of the nation state to grant asylum rather than on the right of the refugee
to be granted asylum (Lavenex 1999, p. 12). Nevertheless, what has been established
and is considered as a norm of customary international law today is the notion of non-
refoulement. Non-refoulement, in the context of the Geneva Convention, means that no
state can return a refugee to his or her country of origin, when his or her life or freedom
would be threatened on account of his or her race, religion, nationality, membership of a
particular social group or political opinion (Article 33). Non-refoulement is the central
principle in asylum law, contained not only in the Geneva Convention but also in the UN
International Covenant on Civil and Political Rights, the UN Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment and the European
Convention on Human Rights.
Today, the structure of the international refugee regime centers on the Geneva
Convention, and the UNHCR as its core compliance agent. From the very beginning, the
agency was primarily mandated to protect refugees. The protection mandate included,
inter alia, the development of international refugee law, promoting the Geneva
Convention, and supervising compliance with the main requirements of the Convention.
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The territorial scope was limited to Europe and the work of the UNHCR was also limited
in time. Although the protection mandate showed clearly that states did not want to
create an operational agency, the UNHCR took the initiative and its mandate was
extended from refugee protection to material assistance. The UNHCR legitimized the
need for its material assistance by raising funds independently and taking the lead role
in responding to refugee crisis, such as the one in West Berlin in early 1953. This
informal expansion of the mandate led towards formalization in the form of the creation
of a UNHCR program for permanent solutions and emergency assistance (Loescher
2001, p. 36). The UNHCR also initiated an expansion of its activities to the developing
world. These activities were legitimized by the UN General Assembly, who also granted
UNHCR the authority to raise funds and to initiate assistance programs beyond the
geographical mandate (Loescher 2001, p. 36). Eventually, these activities were
formalized by the 1967 Protocol removing the geographical and temporal limitations of
the 1951 Convention. Based on the new mandate, UNHCR soon expanded its activities
on the African continent. Since the 1960s, it increasingly ran programs by itself, offered a
great variety of services for refugees and has ever since been the core coordinator of
international assistance to refugees and victims of “man-made” disasters (Loescher
2001, p. 40).
After the end of the Cold War, fundamental changes not only occurred in the
international refugee regime, but also in the way UNHCR operated. In-country-
assistance and protection increased and the UNHCR became part of UN peacekeeping
and peacemaking operations. In general, humanitarian operations grew and the link
between refugees and internal security became recognized. This also meant that
UNCHR, in particular the Deputy High Commissioner and the Assistant High
Commissioner (UNHCR 2010a), played an important role in international political
negotiations and closely followed the development of EU asylum law and policy (cf.
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Loescher 2001, p. 43). For example, the UNHCR issued recommendations to Spain for
its European Union presidency (UNHCR 2010). The agency also follows closely the
planned establishment of a single European asylum procedure (UNHCR 2001).
The protection dimension of UNHCR’s mandate also encompassed the
development of international refugee law. Here, the driving role of UNHCR soon came to
a halt. Reflecting the increasing regionalization of refugee regimes and growing
disagreement over the basic categories both of the international refugee regime and how
international responsibility should look like, a further formalization of international
refugee law in form of treaties became very unlikely. Still, the international asylum
regime was far from being sufficient and protection gaps existed – and all actors
involved, including UNHCR, were well aware of this fact. A change in modes of
cooperation and decision-making occurred – towards informal settings. These took
different shapes. A prominent example for informal consultations at the international
level is the Global Consultations on International Protection initiated in 2001, at the
fiftieth anniversary of the Geneva Conventions. Its aim is to set the agenda for refugee
protection in the twenty-first century relating mainly to the analysis of problems
confronting proper implementation of the Geneva Convention (UNHCR 2001).
Negotiations took place during regional meetings, government and UNHCR discussions,
expert roundtables and ministerial meetings. The first central outcome was the 2003
Agenda for Protection aimed at contributing to the development of international refugee
law. A series of activities were agreed upon which will serve as a guide to governments
and humanitarian organizations in promoting the Geneva Conventions. The Global
Consultation Process and the Agenda for Protection have only been a starting point for
future informal international asylum consultations. Regional meetings on the
implementation of the Agenda are planned and informal working groups will be
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established looking more in-depth into the protection gaps, and how to foster better
cooperation and partnership to bridge them (UNHCR 2008).
Besides the Global Consultation Process, international asylum governance
encompasses a wide range of other fora for informal intergovernmental information
exchange. These fora differ very much in their setting. Whereas the Global Consultation
Process is an open and transparent forum, another example of informal exchange – the
Intergovernmental Consultations on Asylum, Refugee and Migration Policies in Europe,
North America and Australia (IGC) – is not at all known for its transparency. The IGC is
an informal non-decision-making forum for intergovernmental information exchange.
Asylum governance is not only driven by the international arena but also by
regional actors. A regional level response to changes in international migration trends
has led towards the creation of regional consultative processes grouping representatives
of states, civil society and international organisations in loose fora. These processes
include, inter alia, the Budapest Process (1991, aimed at reducing irregular migration
from Eastern and Central Europe towards Western Europe), the CIS Conference
Process (1995, addressing population movements in the former Soviet Union area), the
Puebla Process (1996), the Manila Process and the Inter-Governmental Asia-Pacific
Consultations on Refugees and Displaced Persons (1996). Von Koppenfels (2001, p. 63,
69, 74) describes these as fora for cooperation and information-sharing and identifies
common criteria, including their informal and open nature and their neither law-making
nor law-enforcement capacities.
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European asylum governance – cooperation but no commitment
European asylum governance is determined by two institutions, the Council of Europe
and the European Union. The former was responsible for drafting the central human
rights document in Europe – the European Convention on Human Rights (ECHR) – and
now aims at monitoring its member states and assisting them in implementing the
Convention. This legalized approach can be opposed by the European Union as the
political counterpart. With regard to the EU asylum regime, two developments can be
identified. On the one hand, the creation of an institutionalized and formalized asylum
body and, on the other hand, the institution of many fora in which informality not only
prevails, but is actively supported by EU bodies. Both the Council of Europe and the
European Union will be analysed, whereas the more prominent role is reserved for the
European Union and its formal and informal asylum governance structures.
The European Convention on Human Rights of 1950 is the central human rights
instrument in Europe. It provides the legal basis for European asylum governance.
Although the ECHR does not contain specific provisions on the right to asylum, the
provision that ‘no one shall be subjected to torture or to inhuman or degrading treatment
or punishment’ (Article 3) is functionally a refoulement-prohibition (for a discussion on
asylum-related issues in the ECHR see Mole 2007). As early as in the 1950s, the
Council of Europe (CoE) had raised the importance of cooperation among the member
states and proposed the harmonization of national asylum policies. In doing so, the CoE
was driven by humanitarian reasons: The aim of the Council of Europe’s activities was
the implementation of core human rights and humanitarian treaties, including the
Geneva Convention as well as the improvement of the situation of asylum seekers and
refugees. For this very reason, the CoE encouraged cooperation among member states
and proposed a common European system for the determination of responsibility for
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handling asylum claims. Both main (formal) CoE bodies – the Committee of Ministers
and the Parliamentary Assembly – discuss asylum issues. They do so in two specialized
bodies, made up of intergovernmental experts, who prepare asylum-related work of the
superior body: the Committee on Migration, Refugees and Demography, set up by the
Council of Ministers, and the Ad Hoc Committee of Experts on the Legal Aspects of
Refugees. Most soft-law instruments drafted by these bodies relate to the
implementation of the Geneva Convention and the call for harmonisation of national
asylum policies. For example, in a recommendation from 1981, the CoE Committee of
Ministers called for a harmonisation of national asylum procedures formulating principles
on how to deal with asylum requests (CoE 1981). A comprehensive attempt to reach
agreement on a common determination of responsibility rules with the CoE has been
drafted in 1989, but was too late: By 1989, the CoE had lost its leading position in the
discussion on the harmonisation of European asylum policy – cooperation in these
matters had shifted away from the humanitarian platform of the CoE to
intergovernmental fora of the EC (Lavenex 2001, p. 82).
Today, the role of the Council of Europe in asylum governance has changed. It is
still involved in asylum law-making, especially with regard to topics that are not yet
covered by other international or regional instruments. For example, the Committee of
Ministers in 2006 adopted guidelines on forced return of illegal residents (CoE 2005). An
important role is also played by the European Court on Human Rights as well as by
domestic courts. The latter play a crucial role in enforcing the European Convention on
Human Rights. Joppke (1998) explains the phenomenon of unwanted immigration and
the rulings of national courts as being responsible for the big gap between restrictive
goals of national immigration policies and the actual liberal policy outcomes (cf.
Guiraudon and Lahav 2000). Furthermore, the Council of Europe supports states that
are in the process of setting up or developing their national asylum systems.
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The asylum governance framework today is very much determined by the
European Union. Asylum policy in the European Union consists of a mixture of formal
and informal decision-making structures. Engendering informal governance structures is
nothing special for asylum policy, but a general propensity of the EU system:
The clash between, on the one hand, highly formalized routines for decision-
making and, on the other hand, the need for continuous negotiation of policies in
order to achieve successful outcomes, creates ample opportunity for networking
and other forms of informal dealings. In many ways, informal governance can be
seen as the glue that holds the cumbersome and contradictory system of EU
governance together. (Christiansen et al. 2003, p. 5).
The side-by-side of formal and informal structures is prominent in asylum policy too.
Over the years, the EU developed a more institutionalized and comprehensive approach
to asylum and migration. Through the 1970s and 1980s various informal ad-hoc groups
were established, which soon mushroomed, institutionalized, and expanded their
mandates to new occurring problems. One example is the TREVI group, created in 1975
and aimed at coordinating anti-terrorist work among EC governments. Throughout the
1980s, it started to convene regularly during each Council presidency and expanded its
mandate to football hooliganism, serious international organized crime and border
controls (Kostakopoulou 2006, p. 233). It is estimated that EU member states created
over 20 new intergovernmental groups between 1986 and 1991 (Monar 2001, p. 754).
Other developments also fuelled the need for intergovernmental cooperation and thus
the proliferation of working groups – including the development of a Single European
Market (Single European Act 1985), the abolition of internal borders and the agreement
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on joint external borders (Schengen 1985) as well as the increasing number of asylum
seekers in Western European states in the late 1980s and early 1990s. The evolving
although still nascent asylum governance structure had two main problems – which
would become so exemplary for EU asylum policy. First, a complex system of working
group structures developed, leading to duplication and a lack of coordination. Second,
most of these groups remained informal proving that although member states were
willing to cooperate in multilateral settings, no state wanted to commit itself to
supranational decision-making. Cooperation yes, commitment no – could be the key
heading the development of a European asylum system, and one of the explanations for
its informal nature.
While inside the European Communities a slow and informal cooperation regime
emerged, outside the EC another asylum system developed – Schengen. Starting of
with agreements on common visa policies, Schengen was, at this time, much more
successful in coordinating multilateral cooperation than the EC – whereas success
meant that participating states agreed on a border regime: The two Schengen
Agreements of 1985 and 1990 regulated the common entry rules into the territory of the
signatory states. Schengen soon became more institutionalized with widening its
membership and scope, and by addressing issues beyond visa matters, including
asylum, drugs and firearms. Then again, Schengen also introduced overlapping and
non-inclusive decision making structures and regional groupings into the European
asylum governance process (Ucarer 2002, p. 24). In sum, in the early 1990, two
European asylum systems had emerged, one inside and one outside the European
Communities. Dissatisfaction with both systems was widely expressed. It related not only
to the above-mentioned two criteria that would become exemplary for European asylum
governance (complexity; cooperation but no commitment), but also to the secrecy that
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surrounded any negotiations and the difficulty of agreeing binding measures and then
monitoring them (Kostakopoulou 2006, p. 235).
With the Maastricht Treaty in 1993 a formal linkage of the asylum regimes to the
Community process was established. Asylum policy became included in the third pillar of
the European Union and as a consequence thereof, there was now a formal
institutionalized setting within which immigration and asylum cooperation occurred. In the
following years, formalization of European asylum governance took various faces
(Kostakopoulou 2006, p. 236): existing committees that operated so far mainly informal
on several political and executive levels became formalized; a five-tiered decision-
making structure has been introduced – with the JHA Council at its top, followed by
Coreper and an overarching Committee (K-4 Committee) both preparing the JHA
Council meetings and three steering groups heading a still complex system of working
groups; asylum policy was transferred to a new Directorate-General of the Council
Secretariat; the Commission, with now having a shared right of initiative, became the first
time associated with JHA issues and established a small task force within the
Secretariat-General; and the EP had now to be regularly informed about JHA decisions
and consulted by the presidency of the Council.
Despite these important formalization efforts, there are some crucial factors
fuelling informal cooperation and decision-making. The most important was the
prevailing unanimity requirement: Consequently, the European Communities and the
European Parliament were circumscribed, whereas the Council developed as the
dominant actor, absent any parliamentary and juridical scrutiny. The two central
international conventions were agreed upon – the Schengen Implementation Convention
(1990, regulating compensatory measures for the removal of frontier controls) and the
Dublin Convention (1990, establishing a system of responsibility for the examination of
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asylum claims). These instruments were criticized for representing only the lowest
common denominator and leading to a suboptimal outcome of European asylum
cooperation (Kostakopoulou 2006, p. 236). A low political visibility and accountability of
decisions taken was also criticized with regard to the bureaucratic framework: The
(above explained) five-tiered decision-making structure was highly secretive and
complex, gave rise to coordination problems and undermined effectiveness
(Kostakopoulou 2006, p. 236; Lavenex and Wallace 2005, p. 464). Coordination was
further hampered by the composition of the committees: Participants in the extended
networks of Council committees belonged to diverse national ministries, forces and
agencies, and were rooted in distinctive state traditions, which in the end led towards
particular complexities in national representation and policy preparation (Lavenex and
Wallace 2005, p. 462). Decision-making was further hindered by the fact that ministry of
interior officials had to learn the habit of transgovernmental cooperation from scratch,
because they had remained the least internationally-minded within national governments
throughout the first forty years of western European integration (Lavenex and Wallace
2005, p. 463). In the end, the call for reform of the third pillar did not take long.
With Amsterdam (1999), European asylum governance became more
communitarized. First, asylum and immigration were moved from the third
‘intergovernmental’ pillar to the first ‘Community’ pillar. The move implied potentially a
greater role for the Commission, the Parliament and the Court. Furthermore, the
Schengen Convention – and its asylum related provisions – were now incorporated into
the treaty framework. In order to coordinate the complex structure, new cross-pillar
coordinating committees had to be established to link relevant negotiations within the
different working groups (levels), which existed in both pillars, such as the Strategic
Committee on Immigration, Frontiers and Asylum SCIFA and its sister-organisations
SCIFA+, or the High-Level Working Group on Asylum and Migration HLWG.
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Second, Amsterdam was determined by what Lavenex and Wallace call a
‘formalization of flexibility’ (2005, p. 466) establishing a number of strong
intergovernmental elements in the first pillar. The new Migration Title IV would for
another five years (1999-2004) be regulated by Maastricht rules: right of initiative for the
member states, council unanimity voting and only consultative powers for the European
Parliament. Only after that period would the Commission obtain the exclusive right of
initiative and would the Council – possibly – move to co-decision with the European
Parliament and to qualified majority voting. The Court of Justice would only later become
competent to rule, after the entry into force of the Lisbon Treaty. The association of non-
member states with the migration regime further complicated the situation: some states
were fully associated with Schengen and Dublin (Norway, Iceland, Liechtenstein), while
others negotiated bilateral agreements (Switzerland). All these special arrangements,
the side-by-side of few supranational and many bilateral agreements considerably
increased the complexity of the JHA institutional framework and invited inconsistency in
the application of JHA provisions across the EU (Kostakopoulou 2006, p. 240).
Origins for the ongoing increase in informal governance not only stemmed from
the complex asylum structure and the general attitude toward cooperation without
commitment to formal coordination, but were also at the very heart of what EU member
states wanted to accomplish – a Common European Asylum System (CEAS). With the
Treaty of Amsterdam, member states had agreed on measures to be introduced under
the first pillar by May 2004 (TEU, article 61). These included agreements on a system of
exclusive responsibility for the examination of asylum claims (Dublin II), standards on
reception conditions for asylum seekers, temporary protection, qualifying for protection
and asylum procedures. Nevertheless, the substantive harmonization of refugee policies
remained much more difficult. With the Hague Program (November 2004), member
states agreed to establish a Common European Asylum System. The CEAS would
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encompass a common asylum procedure and a uniform status for all of those that are
granted asylum or subsidiary protection. For these purposes it is not only necessary to
adopt further legislation but also to enhance cooperation between the member states, as
the JHA Council acknowledged:
The current EU-framework does not yet provide enough structural support for
practical cooperation. Many activities are [… ] carried out on a project led basis
and /or via workshops. However, these activities which are extremely relevant in
order to ensure harmonization of practices between national administrations,
once established, need proper funding for maintenance, administration and
further development which at present cannot be ensured. This is essential to
build up a solid basis for continuous and well-coordinated practical cooperation.
(EU JHA Council 2008, p.4)
One of the main tools to enhance cooperation has been the establishment and
strengthening of informal cooperation mechanisms. For example, teams of judges or
police officers inspected the standards of administration in other member states; so-
called contact committees in the area of asylum were established by the Commission in
the member states aimed at exchanging experiences in interpreting relevant legislative
instruments (what Lavenex and Wallace call ‘experimentation with mutual inspection’);
another informal network created was the EU’s asylum practitioners network (EURASIL),
where member states exchange best practices, information and jurisprudence. The
Commission, unsuccessfully, encouraged informal cooperation in another way too and
wanted to introduce the ‘open method of coordination’ (OMC) into asylum and migration
policy. OMC is an intergovernmental cooperation framework, where member states are
15

evaluated by peer pressure, the Commission only having surveillance power and the EP
and the ECJ playing no role at all. This attempt has met opposition in the Council. The
Commission nevertheless created an informal consultative committee on asylum and
immigration, that has been referred to as ‘OMC minus’ (Lavenex and Wallace 2005, p.
476). The examples show that there is a great need for cooperation among the EU
member states. A big part of this cooperation happened outside the formal institutions –
but inside the EU asylum structure. As stressed, it was not only tolerated but even
encouraged by the formal EU bodies.
Informal governance structures explained above have, to a large extent been
created by the European Commission or the Council of Ministers – hence a third party.
Nevertheless, arenas for informal governance can also be self-created and emerge
autonomously (Christiansen et al. 2003, p. 6); this can be assumed for most of the
arenas created outside the provisions of the EU. These include among others the G-5
and the Intergovernmental Consultations on Migration, Asylum and Refugees. These
venues play an important role in the exchange of information on third countries and will
therefore be dealt with in the following part of this chapter.
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JHA
Council
High Level
Working
Group on
Asylum and
Migration
European
Support
Office
(from 2011)
Application of COI
exchanged in all
the fora by:
European Union Europe
DG Home
Affairs
SCIFA ,
SCIFA +
Eurasil
WP
Asylum
National
asylum
authority
funds
funds,
supports
G5/G6
National
asylum
authority
G-Disc
staff exchange
funds, participates in
Salzburg
Forum
National
asylum
authority
Council of
Europe
funds,
supports
National
asylum
authority
Figure 1. European Asylum Governance in International Context: Formal and Informal Fora
provides expertise
Intergovernmental
Consultations on
Asylum, Refugee
and Migration
Policies
provides expertise
UNHCR
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Case study: information exchange on third countries and informal structures
A complex institutional structure – created to balance supranational and
intergovernmental interests – fuelled cooperation outside formal institutions, within and
beyond the European Union. This claim is now illustrated by looking at a concrete
example – the exchange of country of origin information (COI). COI is crucial for any
decision taken by member state authorities in determining whether it is safe or not to
send an asylum applicant back to his or her country of origin. In line with the Refugee
Convention a person may not be sent back if ‘his [or her] life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social
group or political opinion’ (Article 33). COI is not only decisive for refugee status
determination, but also to formulate asylum policies, such as plans for voluntary
repatriation or developing preventive approaches aimed at removing or reducing the
reasons for flight (UNHCR 2004, p. 1). All national asylum authorities operate, on
different levels, COI collections. In addition, publicly available COI is collected and stored
by a number of organisations. The most prominent is Refworld – a COI database
managed by UNHCR. It includes a myriad of COI, such as policy documents and
positions, and documents relating to international and legal frameworks. Similar
information, although in much smaller scale is stored by many international and non-
governmental organisations. Nevertheless, an intergovernmental system for collecting,
analysing and distributing COI remains underdeveloped (UNHCR 2004, p. 19).
There are several explanations why intergovernmental exchange on COI takes
place. First, the notion of non-refoulement is a central normative constraint to national
asylum policies and providing therefore a poster child example to what Guiraudon and
Lahav (2000) call the shift of migration. In order to circumvent normative constraints (in
casu the notion of non-refoulement), national governments have shifted migration policy
18

downwards (decentralization), outwards (non-state actors) and – most important for this
case study – upwards. COI is dealt with in the form of intergovernmental cooperation
groups because national governments can regain some of the control they have lost
over asylum matters because of national jurisprudence. Intergovernmental cooperation
allows for decision-making behind closed doors and without holding someone to account
(Guiraudon and Lahav 2000, p. 178). In addition, states are interested in an exchange
on COI because they want to improve consistency in decision-making within and
between countries of asylum, because COI has distributional consequences. If France
determines the situation in a country of origin as unsafe (i.e. allowing more asylum
seekers from that country to get asylum in France), it is interested in similar
determinations by other European countries in order to avoid that asylum seekers from
this particular country of origin all seek asylum in France. International cooperation on
COI has been taken place for many years and through a number of mechanisms, formal
and informal, bilateral and multilateral, within and beyond the EU. A brief description of
these shall show the complex system of formal and informal exchanges in a more
concrete manner, building up on the rather general mapping in the previous parts of this
chapter.
Provisions on mutual information exchange can be found in two central EU
legislative pieces: The Dublin Convention (article 14) and in the London Resolution
dealing with safe countries of origin. The latter states that
Member States have the goal of reaching common assessment of certain
countries that are of particular interest in this context. To this end, Member States
will exchange information within an appropriate framework on any national
19

decision to consider particular countries as ones in which there is generally no
serious risk of persecution. (Council of the European Union 1992, para. 2)
Several informal fora have been created to fulfil this role. The most prominent and active
one is the EU Network of Asylum Practitioners (EURASIL). It is an informal and
permanent expert group in the Home Affairs DG. EURASIL aims at facilitating the
exchange of information and to enhance common understanding with a view to have
harmonizing effects on asylum practices in the EU member states. It groups expert
practitioners from national administrations active in the field of asylum. Members and
their representatives vary according to the items on the agenda (European Commission
2010). Normally, there are also five observer states (Switzerland, Norway, Iceland,
Canada, USA) and UNHCR, who participate in the meetings. Working group sessions
mainly focus on specific countries of origin (such as Iran, Afghanistan or Russia) and
address very practical questions on how different participating states deal with asylum
seekers from these countries. In addition to working group sessions, EURASIL also
facilitates online information exchange in the form of a COI database. What Noll notes
for EURASIL´s predecessor CIREA, can also be assumed for EURASIL: ‘Although its
function is primarily a consultative one, it cannot be excluded that [… ] [the] assessment
of the situation in countries of origin may have a critical impact on the outcome of
protection claims in Member States.’ (Noll 2000, p. 131) EURASIL’s work is confidential,
i.e. assessments of the situation in a country of origin, criteria on which this assessment
is based upon and information on how the reports are used are not available. In 2011,
the work of EURASIL will be taken over by the European Asylum Support Office (EASO),
which has been created in line with member states’ intention to create a Common
European Asylum System. The office shall play an active role in organizing, promoting
20

and coordinating activities relating to the information on countries of origin (Regulation
No 439/2010 of the European Parliament and of the Council establishing a European
Asylum Support Office’ of 19 May 2010, art. 4). Besides EURASIL, other working
formats aimed at facilitating COI exchange have been created by the member states.
For example, the Temporary Desk Iraq has been set up in 2009 to enhance practical
cooperation on protection, resettlement and return with regard to asylum seekers from
Iraq. It groups seconded officers from asylum and immigration services in interested
states as well as a number of other interested parties (G-Disc 2010).
There is also a formal setting within the EU which is indirectly mandated to collect
COI – the cross-pillar High Level Working Group on Asylum and Migration (HLWG). Set
up by the JHA Council in 1999, the HLWG’s task is to develop strategic approaches for
an EU policy for the most important third countries. In the light of this mandate, COI is
collected. The information collected and the way it might potentially be used by the
member states has been criticized by NGOs and advocacy groups (see for example
Gent 2002, p. 14). Nevertheless, the HLWG does not play a big role in the exchange of
COI, because only a limited number of countries of origin have been covered (six so far)
and it is unclear what the current work of the HLWG encompasses, the last action plan
had been issued in 1999.
Informal exchange on COI among European countries – but outside the EU
framework – takes place in additional fora. Although these fora differ in terms of
composition, institutionalization and working methods, they all share the critic of lacking
transparency and accountability and circumventing the official institutions of the EU:
• The G-5 is an intergovernmental group of five interior ministers (France, Italy,
Spain, Germany, and UK) that exists since 2003. It is sometimes called G-6
21

including Poland, which has joined the group in 2006. The group attempts to,
inter alia, establish a list of ‘safe countries of origin’, which necessarily requires a
COI exchange. It has explicitly been created to speed up the move towards
operation goals and to circumvent lengthy decision-making procedures in the EU
JHA Council. Bilateral agreements shall – in the future – be the basis for EU-wide
laws (Lavenex, Wallace 2005, p.466).
• The Salzburg Forum is another group meeting at the ministerial level. It was
created in 2000 and includes members from Austria, Czech Republic, Hungary,
Poland, Slovakia, Slovenia, Romania and Bulgaria. It aims at enhancing
operational cooperation by jointly working on, inter alia, on country of origin
information (Lavenex 2010, p. 467).
• The G-Disc is an informal forum for cooperation and exchange of Directors-
General of the Immigration Services of all 27 Member States and 5 other
European States. Interestingly, it is partly funded by the EU.
One of the longest standing platforms for informal COI exchange at the international
level is the Intergovernmental Consultations on Migration, Asylum and Refugees (IGC).
The IGC provides ‘a forum for participating States, international organizations and the
European Commission to exchange information on refugee, asylum and migration issues
in an informal, confidential and non-binding way’ (CIC 2010). States from Western
Europe, North America and Oceania are members of the IGC. In addition, UNHCR, IOM
and the European Commission take part in its activities, though only as observer.
Although the IGC describes itself as an informal arena it became more and more
structured over the years, including the establishment of a secretariat (1991) and the
issuance of annual management plans (not publicly available). Data information sharing
22

is the key activity of the IGC. The history of exchanging COI dates back to the year
1996. Existing databases cover, among others, asylum application data, asylum decision
data, asylum application data on unaccompanied minors, smuggling data and return
data (IGC 2009). COI is shared via a website, including country assessment reports,
forum discussions and teleconferences to share information on specific countries (such
as Iran, Congo and China) (CIC 2010). Information exchange within the IGC context,
specifically the COI-working group, is however focused more on procedural issues, in
terms of discussing best practise of the collection of information and how that should be
used for the determination of safe countries of origin, than on harmonizing substantive
country of origin positions. Meetings are closed door sessions and access to the
information database is restricted to members. According to one of the member
governments, membership provides policy and operational information not readily
obtained by other means. One of the participating countries stresses that it ‘is more
informed and effective in formulating domestic policy. [Government departments] learn
from others’ experiences and this is reported to translate into the selection of ‘best
practices’ in policy and program development. This type of information is often not widely
shared as lessons learned are rarely openly discussed in more formal meetings or
documented’ (CIC 2010).
Successive but incomplete formalization?
The chapter has shown that informal governance is a prominent phenomenon in asylum
policy. With regard to the international level, the UN High Commissioner for Refugee’s
role as being the core compliance agent for the Geneva Convention relating to the
Status of Refugees has changed much over the past years. Having acquired its power
on rather informal channels by filling protection gaps on own initiative, UNHCR’s role
23

ecame soon formalized in a number of treaties. Today, internal asylum governance is,
again, characterized by a high level of informality: the growth of informal regional
consultation processes reflect the increasing regionalization of refugee regimes.
Regional cooperation, such as the Global Consultations on International Protection,
develop working agendas for the upcoming years and thus show an increase of informal,
international cooperation in asylum governance.
With regard to the European level, the demand for exchange on asylum policies
among states increased in particular in the 1970s and the 1980s. Since no existing
institutional setting could meet this demand, informal governance structures developed
and increased. With the institutionalization of asylum policy and, later on, the
incorporation of asylum into the Community pillar of the European Union, working groups
became part of the EU structure. Despite increasing formalization in European asylum
governance, informal exchanges keep on playing an important role. The reason for that
is straightforward: states may have an interest in cooperating, but are often reluctant –
certainly in a politically sensitive policy area such as asylum policy – to commit to a strict
international regulatory framework. EU asylum policy is discussed in many fora,
horizontal and vertical – there are no clear hierarchies visible within or between the
institutions. As Christiansen et al. stress, informal governance is very prominent where
no clear hierarchies exist (Christiansen et al. 2003, p.8). Thus the complex EU asylum
system is the central reason for the prevalence of informal governance. Moreover,
informal governance is determined by the fact that the EU lacks direct enforcing powers
(Christiansen et al. 2003, p.8). Like in any other EU policy field, the implementation of
EU asylum policy depends on national asylum authorities. This necessitates the
involvement and exchange with these authorities, also beyond the formal structures. It is
noteworthy that these informal exchanges are not only tolerated but even encouraged by
the European Union. In an attempt to create a Common European Asylum System,
24

various EU bodies encourage informal cooperation via different means, such as the IGC,
staff exchange or the ‘OMC minus’.
With regard to the near future, it could be assumed that informality might
decrease due to several reasons: First, informal governance is also rooted in the attempt
to circumvent lengthy decision-making processes requiring unanimity. This argument will
be no longer valid in 2014: With the entry into force of the Lisbon Treaty, co-decision will
be introduced as the central decision-making procedure for asylum and migration.
Furthermore, the role of the ECJ and the parliament will grow and it is likely that juridical
and parliamentary scrutiny will, at least, question informal exchanges and the linked
secrecy surrounding many of these exchanges. The case study showed that informal
exchange relate, inter alia, to country of origin information. With the European Asylum
Support Office (EASO) taking up its work in 2011, these informal cooperation platforms
shall be pooled in a new organisation, an EU agency. The expectations for the EASO
are high, in terms of strengthening cooperation between member states in view of further
harmonisation. In line with the general lessons drawn from the trend of instituting
agencies within the EU, as well as continuing national sensitivities in this policy domain,
it is unlikely that this agencification will move European asylum governance away from
the dominant informal governance dynamics of the past two decades.
25

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