Attributed influence assessment 123

Comparing the recommendations tabled by the pro-migrant groups with the positions adopted by the institutions has illustrated that the similarity between the documents diverges widely – with a great resemblance of the recommendations of ECRE and the Commission’s proposal and very little consistency between the recommendations forwarded by CCOEMA and ECRE and the Council directive. As outlined in the course of the documentary comparison that precedes this section, the degree to which the recommendations of the interest groups are reflected in the Commission’s proposal for the directive and in the Council directive needs to be assessed against the background of the binding international obligations established in the Geneva Convention and the guidelines of the UNHCR on the Qualification Directive. Furthermore, it needs to be understood that similarities between the recommendations of the pro-migrant groups and the positions of the EU institutions do not automatically prove the influence of these groups. To further approach the actual influence of the pro-migrant groups, interest representatives of ECRE, AI Europe, and CCOEMA have been asked to self-assess their impact on the Qualification Directive. As CCOEMA is an umbrella group that represents six churches and Christian organisations, they have all been asked to comment on the performance of CCOEMA. Out of the six groups, three agreed to participate in an interview: Caritas Europa, CCME, and JRS. In addition, internal documents in which the outcome of the directive is assessed provide further information about the satisfaction of the groups with the policy results. To complement the self-assessment of the interest representatives, EU officials that were engaged in the formulation of the Qualification Directive have been asked to peer assess the influence of the pro-migrant groups.

The representative of AI Europe who was responsible for the Qualification Directive reported that she always felt taken seriously in the meetings with the EU officials and did not experience the consultations as mere means to demonstrate a democratic will. Nevertheless, she remained widely reserved as regards the actual influence of AI Europe. She does not

believe that NGOs can be proactively influential but rather pursue a strategy of limiting damage. ‘If we weren’t here, things would look much worse. But beyond that I can’t really say how much we have been able to change things,’ she said (Interview 28). The 2003 annual report of AI Europe, confirms the reserved self-assessment of the interviewed interest representative.

In the face of member states’ determination to seek the lowest common denominator or, as was increasingly the case, to leave matters open completely to national discretion, the effect was inevitably only limited (AI Europe 2004a: 2).

In its assessment of the Tampere Agenda, AI Europe stressed its satisfaction with the fact that the directive does not only interpret the Geneva Convention properly but also goes beyond international law standards by obliging member states to grant subsidiary protection to persons who do not qualify for refugee protection. Furthermore, AI Europe (2004b: 8) was especially content with the inclusion of non-state actors as sources of harm. It, on the contrary, disapproved of the inclusion of non-governmental actors as sources of protection and regretted the vagueness of the exclusion and cessation clauses. Finally, AI Europe (2004b: 10) showed itself very disappointed about the unequal treatment of refugees and beneficiaries of subsidiary protection.

The interest representatives that were interviewed on CCOEMA’s performance presented themselves as rather diffident about their capacity to co-shape decisions at EU level. One representative of JRS emphasised that it would be presumptuous to ascribe NGOs working in the asylum sector the capability of setting the political agenda. He, nevertheless, stressed that the strength of these NGOs is their ability to gather and distribute information and facts and mobilise the public at national level (Interview 14). The actual influence of NGOs, according to one representative of Caritas Europa, is difficult to assess, though. He explained that the most significant counterparts of NGOs are the member states, which, at the same time, are the most powerful decision-makers at EU level. As a consequence, the interviewee observed that nothing of the recommendations of CCOEMA was literally copied in the adopted Council directive. But ‘sometimes […] you find something that in one or another way refers to something said in the recommendations’ (Interview 1). In an interview with CCME, the representative alluded to all those core elements of the Qualification Directive that reflect the objectives of CCME. The interviewee especially pointed to gender related reasons for persecution and to the fact that the Geneva Convention is now integrated in EU law, therefore, binding at national level. Before the adoption of the Qualification Directive, as the

interviewee claimed, German-speaking EU member states in particular appear to have treated the Geneva Convention as inferior to national law. The representative of CCME, however, regretted the unequal treatment of refugees and beneficiaries of subsidiary protection that has not been overcome despite the approximation efforts on the part of the Commission. According to her, it is the family life and the prospect to work that are essential for the life of all beneficiaries of international protection in the receiving country (Interview 18).

With a view to the impact assessment of ECRE, one of its former legal officers emphasised that one has to differentiate its impact on the Commission from the impact on the Council. On the one hand, he revealed that they knew ‘that the Commission desk officers read everything we [employees working with ECRE] write as soon as we write it’ and that they ‘were able to see a lot of our work actually come out of the Commission proposal’. On the other hand, he admitted that ‘when it came to the Council, it all came crashing down’ (Interview 40). In its 2004 information note, ECRE assessed the outcome of the Qualification Directive from its perspective. ECRE (2004a: 7, 9, 13, 16) expressed its satisfaction with, firstly, the inclusion of non-governmental actors as actors of persecution; secondly, the inclusion of gender- and child-specific criminal acts as acts of persecution; thirdly, the inclusion of an express obligation to grant subsidiary protection; and fourthly, the equal treatment of refugees and beneficiaries of subsidiary protection with regards to social welfare and health care. The provisions, however, that contradict the recommendations tabled by ECRE outweigh those provision that are in line with what ECRE had suggested. ECRE presented itself particularly disappointed about the following provisions: close and restrictive family definition, definition of actors of protection (ECRE 2004a: 5 and 7), vague internal protection alternative, vague exclusion clauses (ECRE 2004a: 10), unequal treatment of refugees and beneficiaries of subsidiary protection (ECRE 2004a: 13-17), and the clause on the legal guardianship in regards to the representation of unaccompanied children (ECRE 2004a: 17).

To complement the self-assessment of the influence of the pro-migrant groups, members of the Commission, Parliament, and Council staff have been asked to assess the impact of the interest groups on the Qualification Directive. The Commission official responsible for the Qualification Directive spoke of the directive as a ‘ground-breaking approach [that merges] into one single instrument the qualification of refugees, on the one hand, and the approximation of subsidiary protection status, on the other hand’ (Interview 34). Controversial questions in the negotiations, according to the Commission official, were the

following: firstly, does serious harm need to be indiscriminate; secondly, does a general threat that is not aimed at an individual justify international protection? For the mediation between the Commission and the member states, the Commission sought help from the UNHCR. The interviewee stressed the importance of the UNHCR as a fully-fledged international organisation, whose advice the EU institutions have to consider when it comes to the interpretation of the Geneva Convention. As such, the Commission official regarded the input on the part of the UNHCR as balanced because it has to pay attention to the national situation in the constituency of its member states. With regards to the contributions by pro-migrant groups, however, the interviewee questioned their balance and reasonableness, since such groups are not bound to national constituencies and, hence, might act more freely. Nevertheless, he did not neglect having consulted pro-migrant groups when the proposal for the Qualification Directive was drafted. ‘I am more than willing to acknowledge that we benefited from the expertise and input of these kind of think tanks because they were badly needed,’ he concluded. He particularly referred to ECRE praising it as an ‘extremely influential, powerful, well-equipped, and reliable lobby in the area of asylum’ (Interview 34). A member of the staff of the Secretariat of the LIBE Committee for the European People’s Party (EPP) assessed the pro-migrant groups to be very influential towards the Commission. As he stated, this arises from the circumstances that many Commission officials started their career paths as interest representatives and continued their career as EU officials. As such, they are open to the claims of NGOs (Interview 5).

The impact of pro-migrant groups on the Council, according to the rapporteur of the Qualification Directive, however, was far more limited. At the time the Qualification Directive was being negotiated, most NGOs were represented by EU umbrella groups that lobbied at EU level but did not necessarily transmit back to their national member organisation, which, therefore, did not lobby national ministries. The cooperation between both levels, she is convinced, is essential because effective lobbying requires that national organisations are constantly informed about the state of the negotiations in Brussels (Interview 23). A member of the Council staff confirmed that idea, explaining that it is more likely that NGOs are able to influence national administrations than the members of the Council General Secretariat (Interview 3).

As the UNHCR assisted the EU institutions in formulating the Qualification Directive, the assessment of the influence of pro-migrant groups on this policy-making process on the part

of the UNHCR should not be omitted. One of the policy officers at the UNHCR Bureau for Europe who had followed the negotiations on the Qualification Directive revealed that the UNHCR works closely with those pro-migrant groups that are present in Brussels. It even co- chairs a NGO platform on asylum and migration, which meets four times a year and serves the purpose of sharing knowledge and information. This cooperation sometimes also leads to the coordination of research and advocacy work. Even though the interviewee acknowledged the contributions by the pro-migrant groups as vital input for the decision-making process, she refrained from evaluating the overall influence of these groups on the outcome of the Qualification Directive (Interview 45). The fact that the UNHCR and the pro-migrant groups seem to have been in frequent contact with each other, however, encourages the conclusion that the impact of the UNHCR and the pro-migrant groups should not be dissociated from one another.

Concluding from the different opinions raised during the interviews, it can be noted that the influence of the pro-migrant groups on the EU institutions varies. While the interviewed EU officials confirmed that the Commission was very responsive towards the groups, they doubted that the groups were capable of exerting influence on national ministries or the Council General Secretary – either because they did not try to approach these bodies or because the bodies refrained from cooperating with the interest representatives. The interest groups confirmed the limited influence that they had on the Council. In the interviews and in their written documentation on the Qualification Directive, they all presented themselves disappointed about numerous provisions in the final directive. The responsive Commission could not countervail the strong opposition of the Council, since it could not rely on the Parliament as an ally in the negotiations with the Council because the Qualification Directive was discussed under consultation procedure. Nevertheless, the interest representatives showed themselves satisfied with many of the provisions achieved under the Qualification Directive. But they did not present themselves as opinion-makers in the negotiations. This reserved self- assessment also acknowledges the role of the UNHCR as the official institution that guided the EU in appropriately interpreting the Geneva Convention.

After having examined the preference attainment and the attributed influence of the pro- migrant groups, in the following section the assumptions about the factors that determine their ability to exert influence are tested.