Caritas Europa Migration Commission
Comments on the proposal for a European Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status
[COM (2000) 578 final, 20 Sept. 2000]
Caritas Europa is the European body of a worldwide catholic development and welfare agency promoting the rights of people who are socially excluded, marginalized and vulnerable. It’s work is underpinned by the social teachings of the Catholic Church and the Gospel value of the dignity and fundamental human rights of all peoples – that every individual has a value that can never be lost or ignored. We believe that every public policy should be judged by the effect it has on human dignity, human rights and the common good.
This concern for humanity, particularly for the persecuted that is so deeply rooted in the Christian faith, is also reflected inter alia in the 1945 UN Charter, 1948 UDHR (and the two Covenants thereof), 1951 Geneva Convention, 1984 UNCAT, 1989 UNCRC and the ECHR.
After the entry into force of the Treaty of Amsterdam on 1 May 1999, it was agreed that a number of legally binding measures on asylum and refugee protection, including minimum standards on procedures for granting and withdrawing of refugee status are to be adopted within a period of five years (May 2004).
The proposal presented by the Commission for a Council Directive for minimum standards on procedures in Member States for the granting and withdrawing refugee status (COM (2000) 578 final, 20 Sept. 2000) takes into account the European Commission’s Working Document [SEC (1999) 271 final], as well as the conclusions of the Presidency at the Tampere European Council in October 1999 for a Common European Asylum System.
Caritas Europa welcomes the general approach to dealing with asylum procedures, that seeks in a non-bureaucratic way, to ensure consistency in respect of procedural guarantees, minimum requirements regarding decision-making process. Although there is a clear need to harmonizing the application of concepts and practices in EU Member States we have serious concerns with regard to some provisions in the proposal concerning ‘inadmissible applications’, ‘manifestly unfounded claims’ and the ‘safe third country’ notion. We are aware however, as already indicated and as in the past, Member States would strive to narrow the scope of the said Directive - the danger of devaluing to the lowest common denominator therefore remains as real.
Caritas Europa takes the view that access to territory for asylum seekers is the key to agreeing minimum common standards of asylum procedure. Having the best and most generous asylum system is of little use if barriers and obstacles are placed in the path of asylum seekers fleeing persecution. The current regime of visas (including the imposition of visas requirements on countries in turmoil), carrier liabilities and interdiction makes it almost impossible for asylum seekers to legitimately seek asylum in the EU.
Caritas Europa welcomes the Directive pointing out one crucial minimum requirement regarding the decision-making procedures to be that “decisions are taken by authorities qualified in the field of asylum and refugee matters” and that personnel responsible for examination of applications receives appropriate training. However, we feel that current flaws in the procedures are a significant factor why persons in need of protection fail to get recognition. This is why we would welcome a harmonized high-level profile of decision-makers in asylum cases throughout Europe. In particular: Decision-makers must be fully trained and culturally competent to deal with asylum-seekers of different educational, cultural and social backgrounds, and able to understand the psychological complexities that may be involved, for example in dealing with traumatized persons. Regular training and access to information technology should be provided. Research and documentation centres should be created, to compile country of origin information and asylum-related jurisprudence. Where additional expertise is necessary, asylum authorities should be able to consult expert opinion.
It is also worth saying at the outset that it has been a feature of recent years that problems have been caused by differing interpretations of the term refugee as per the 1951 Refugee Convention, by several EU Member States. It would seem sensible to reach agreement about this, before agreeing on asylum procedures especially because it impacts on such concepts as ‘safe third country’, ‘safe country of origins’ and ‘manifestly unfounded’ claims.
Finally, we are concerned that there is too much room in the said Directive for “derogation” and “discretion” allowed to Member States to apply uniform procedures, and the use of concepts such as ‘manifestly unfounded’, ‘safe third country’, and ‘country of origin’ claims. See for example: Art 33, Para 2 (re: suspensive effect); Art 26, Para 3 (re: procedural guarantees to the withdrawal or cancellation of refugee status); Art 34 (re: reasonable time limits regarding the examination of asylum application – lack guidance on what constitutes ‘reasonable time limits).
Caritas Europa would like to point out that under international refugee law (Art 1(a) of the 1951 Refugee Convention) refugee status is not granted but recognised (see for example Para 28 of the Handbook on Procedures and Criteria for Determining Refugee status).
Article 6: Right to individual decisions: we welcome the provision that decisions on asylum should be taken on an individual basis on the objective circumstances of that person. However, our concern remains, regarding the apparent building up elsewhere in these proposals of the principles of "safe third countries" or "safe countries of origin" (Art’s. 21, 22, 30, 31 and Annexes 1 and 2).
Article 7: Right to be informed in a language they understand: We welcome this in principle but it is questionable whether these proposals go far enough. It is important that asylum seekers are fully aware of the whole process at every stage. It is also important that they are able to fully explain their situation and present their case in their own language. Thus in all cases, there should be access to a publicly funded interpreter at all stages and not simply "where necessary" when "called upon by the competent authorities".
Adequate interpreting resources should be made available to all applicants, to ensure that they are able to present their case and understand the procedures and legislation to which they are subject.
Article 8: Right to consult the transcript: While according to Article 8 (6) in the regular procedure every applicant should have the opportunity to consult the transcript of a personal interview the proposal does not try to establish that this rule should also apply in the admissibility and accelerated procedures. Consequently it would remain in the discretion of Member States whether or not to allow applicants to consult the transcript. At the same time there is no doubt that in this stage of the procedure any misunderstanding or incorrect transcript will have much worse effects than any other later in the regular procedure (no suspensive effect of remedies; deportation possible before decision on appeal). Although in some Member States it is not standard to provide all asylum seekers with transcripts of all interviews, Caritas Europa wants to stress that the information given in the admissibility procedure often is more sensitive than the interview in the regular procedure. Therefore the same rights should apply.
Article 9: Right to legal assistance: It is good that Article 9 (1) recognises the significance of the role of legal advice but then the provisions outlined do not offer adequate safeguards to ensure this. Article 9 (4) only provides for a right to legal assistance at the appeals stage - this is far too late. Good decision-making can only be ensured through properly presented cases and this requires legal assistance at all stages of the process and in all types of case. Article 9 (4) refers to the right of presence of a legal adviser but only in "the regular procedure" - presumably those subject to accelerated /admissibility procedure are at the discretion of Member States and this is of great concern to Caritas Europe.
It is extremely important to maintain the principle of a right to legal assistance, free of charge at all stages of the process and in all types of cases. Article 9 (2) does not adequately address this issue as it allows Member States to “regulate the access of organisations providing legal assistance” to “closed areas designated for asylum applications”, provided such rules “do not render access impossible”.
Whilst we welcome the confirmation of the right to an appeal (Article 32), it should also be noted that the basic principle should be that the system for the submission and consideration of asylum claims should be swift and straightforward with the applicant being enabled by the provision of appropriate legal advice and the assistance of an interpreter, as of right and free of charge. We think it is vital that this should be built into the EU system as a minimum standard.
Article 10: Safeguards for unaccompanied minors: we welcome the safeguard of the appointment of a legal guardian for unaccompanied minors in Article 10, but feel this should be "forthwith" or "immediately" rather than "as soon as possible" (Art10 (1). We feel it should also define an unaccompanied minor as anyone below the age of 18.
Article 11: Detention: Caritas Europa believes as a general rule that asylum seekers should not be detained. Asylum applicants should only be detained as a last resort in exceptional cases when non-custodial measures have proven on individual grounds not to achieve the lawful and legitimate purpose. We welcome the proposal (Art 11(1) that excludes the detention of asylum seekers “for the sole reason that his application for asylum needs to be examined”. It also establishes in which specific cases asylum seekers can be detained for the purpose of making a decision in accordance with a procedure by law and only while detention is necessary. Furthermore it establishes (Art 11(2)) the obligation of Member States to provide by law “for the possibility of a review “ of the detention of asylum seekers.
While we agree with the spirit of these proposals we would like to point out that:
a) the grounds for detention include “in the context of a procedure, to decide on his right to enter the territory (Art 11 (1) (d)) is not one of the grounds allowed in EXCOMM Conclusion 44 (XXXVIII). We maintain that any EU legal basis regarding detention should comply with international law and standards.
b) we welcome the suggestion of a right to review the detention of asylum seekers Article 11 (2) but would emphasise that this should be a full independent judicial review and should be mandatory on Member States, not “as a possibility” as provided in the proposal.
c) according to Art 5 ECHR everyone has the right of a review of detention by a judge. We propose establishing the principle that any decision on detention should be issued by a judge as well.
In general, we do not think that a separate admissibility procedures (i.e. fast-track/accelerated) for so-called ‘manifestly unfounded’ cases, contributes to a "simple and quick" system. They simply add unnecessary hurdles and layers of complexity. A single procedure where good quality decisions are made on all facts of an individual's case at the first stage would ensure a smooth and rapid appeals process and an overall fair and efficient system.
Article 22: Safe third country: we welcome the suggestion that referral to a ‘safe third county’ should reflect the applicant’s needs and links. We believe that the provision in Article 22 (2) should be strengthened to say that referral should only take place where there are guarantees of re-admittance, not simply "grounds for considering that the applicant will be readmitted.”
Equally, the onus should be on the sending State to show that that country is safe for that individual and confirm that they will be admitted to an asylum process that will assess their claim without danger of refoulment. We believe that the non-refoulement obligation is best met by Member States by the provision of a full and satisfactory asylum procedure at first instance, where all asylum claims are thoroughly examined by a competent authority.
We are seriously concerned that the safe third country notion as chosen in the proposal puts the burden of proof on the asylum seeker. It should be emphasised again that all cases should be examined and decided on the individual's own circumstances, regardless of the fact that readmission agreements exists. We believe that there are no safe countries in any blanket sense.
We are concerned that Article 23 seems to infer that asylum seekers faced with removal to a ‘safe third country’ may not be interviewed contrary to what is stated in Article 8.
We also believe that the right of appeal against ‘safe third country’ removals has to be suspensive - the right to appeal from another country is ineffective, a token right that is virtually impossible to exercise. This is particularly important in the context of the observation above (i.e. refugee definition) that agreements on procedures and referrals should come after basic agreements about who is or is not a refugee otherwise there is the clear risk of refoulement.
Finally, in the case that the applicant has family ties with someone legally resident in the country considering applying the safe third country clause, or in the case that there are other social or cultural links connecting him to this country the safe third country notion should not be applied.
Chapter IV: Substantive determination procedures;
Section 2. Articles 27 and 28: The accelerated procedure: All Asylum claims should be subject to the same safeguards such as the right to have a legal adviser present and the right to read and comment upon any transcript of the interview.
We are concerned about the criteria suggested for identifying cases as "manifestly unfounded". In particular with regard to Article 28.1(a) it has to be stated that applicants commonly have no, or false documentation and this should not being used against them in relation to their asylum claim. Since the legal entry is very limited for asylum seekers, the use of false documents often is result of the “non-arrival”-policy implemented by Member States. As to Art 28.1(b): To require explanations to be "sufficiently convincing" or to have "serious reasons for considering they have acted in bad faith" seems an extremely subjective and discriminatory basis on which to be justifying an inferior procedure.
Similarly, we are concerned about the consequences of re-examining an asylum claim as new, when it had previously discontinued (Art 16) after the applicant was unavailable for about 30 working days. The likelihood of such application being dismissed as ‘manifestly unfounded’ if they raise no new facts is real. Inevitably the merits of the application may not be treated substantively. There may be extremely good reasons why an application for asylum is put off until the later stages of removal as circumstances change and people's options will alter. We believe that it is important that in these cases it is important to establish the right to continuation of procedure.
Safe country of origin (Art 28(e) together with Art 30, 31 and Annex II): this is of serious concern as it is clearly contrary to the basic requirement to consider each individual case on it's own merits and there is a wealth of documentation from previous experiences of "lists" of supposedly safe countries that is, in reality, far from safe for some individuals. The right to asylum is an inalienable and basic human right enshrined in Article 14 of Universal Declaration of Human Rights and this is not dependent on nationality or country of origin. To restrict access to a fair, just and efficient process on the basis of such blanket definitions is inherently unsafe and contrary to international law.
Articles 32 and 33: we welcome the 3 tier system of decision-making, reviewing and Appellate Courts, particularly the right to appeal any decision taken on the admissibility and/or the substance of an asylum claim and the suspensive effect thereof. However, we are profoundly concerned that the suspensive effect to appeals will fracture when Member States exercise their right to derogate in certain cases (viz. ‘safe third country’ and ‘manifestly unfounded’ applicants). A deportation carried out before the final decision taken puts in question the value of the review procedure and causes serious risk of refoulement. In this regard this provision may violate Art 33 of the Geneva Convention and Art 3 and 13 ECHR. We urge of the view that the suspensive effect to appeals should be in all cases, without discrimination.
Art 34: Lodging an appeal: The principle laid down in Art 34(1) asks Member States to define reasonable time-limits for giving notice of appeal and for filing the grounds of appeal; the proposal only concretises the time limit for filing the grounds of appeal in regular cases. We would consider it better if the time limit was generally laid down in the Directive to be 20 days.
Additionally, Caritas Europa recommends the European Union should establish an independent quality assessment of asylum procedures and asylum decisions in Member States. This would ask for defining criteria, agreeing on indicators.
Caritas Europa would like to reiterate that since all EU Member States are parties to the 1951 Geneva Convention, the UN Convention against Torture and the European Convention on Human Rights, their respect for human rights obligations is not a matter of choice, but of duty.
Brussels, 18 May 2001