ECRE’s
Recommendations to the
Justice and Home Affairs Council 14-15 October 2002
ECRE notes the agenda before Justice and Home Affairs (JHA) Council on 14-15 October. Ministers will be asked to pronounce themselves on a number of key issues for refugee protection in Europe. ECRE wishes to express its recommendations to the JHA Council for a Common European Asylum System that is protection-centred, firmly committed to the safeguarding of human rights and orientated at existing best State practice.
·
Definitions of a refugee and of persons otherwise in need
of international protection must reflect Member States obligations under
international refugee and human rights law
ECRE recalls that the Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees. This was confirmed in the 13 December 2001 Ministerial Declaration of States Parties to the 1951 Refugee Convention that recognised “the enduring importance of the 1951 Convention as the primary refugee protection instrument”. In this regard, ECRE calls on the JHA Council to ensure that subsidiary protection status is not used as a substitute for refugee protection for individuals who meet the criteria of a “full and inclusive” interpretation of the Refugee Convention as advocated by the Tampere European Council in October 1999.
Subsidiary protection status plays a
crucial role in protecting individuals who cannot be removed on the basis of the application of relevant
international human rights law provisions. These not only refer to protection
from torture or the prohibition of the death penalty, but inter alia, to the right to a fair trial or the right to
respect for family life. ECRE urges the JHA Council to ensure that all these categories
of individuals are recognised a right to a subsidiary protection status.
Leaving the decision on the status of certain categories of individuals who are
protected by international human rights law to the discretion of Member States
may lead to the existence of groups of individuals left in a state of
“legal limbo” in some Member States. This would not only be
contrary to the expressed commitment of Member States to honor their
international protection obligations, but also to the harmonising spirit of the
Directive.
ECRE is also concerned by the
linking of the refugee definition to exclusion considerations that implies a
presumption of excludability at the onset of asylum proceedings. This is rather
alarming with potentially serious consequences for the individuals concerned,
as it might result in refoulement. The exclusion clauses are of an exceptional
nature and should be applied scrupulously and restrictively because of the
potentially serious consequences of exclusion from refugee status for the
individual concerned.
·
All asylum applications, including those from
nationals of EU candidate countries, must receive a substantial examination of
all circumstances in a fair and inclusive procedure
ECRE notes that Ministers may pronounce themselves on the applications for asylum of citizens from the EU candidate countries. ECRE would wish to express concern about any steps taken by Member States that may risk effectively removing the right of nationals from candidate countries to have a full and inclusive examination of their claim in an EU Member State. Human rights concerns persist in some of the candidate countries, such as with regard to the protection of Roma populations. All applications for asylum should involve a substantive examination of all circumstances within a procedure where all the necessary legal and procedural safeguards for the protection of refugees are guaranteed.
·
The EU must work towards the effective integration of
persons in need of international protection
The question of integration
of those recognised in need of international protection is still far from being
fully addressed by the EU. Through a range of initiatives over the last few
years, the EU has made considerable progress in promoting refugee integration
as a dual process involving both receiving societies and refugees and their
communities. Notwithstanding, ECRE believes that there are still considerable
barriers to the full integration of refugees into European societies. To start
with, refugee integration is closely related to the quality and length of the
asylum determination procedure and the conditions of reception. With regard to
the latter, ECRE is concerned about certain provisions of the Directive on
reception conditions that allow for restrictions in the rights of asylum
seekers to several rights, such as access to the labour market. Further,
integration is closely related to the legal status granted to persons in need
of international protection. From an integration perspective, of particular
concern are discussions regarding refugee access to long term residence status
and lesser benefits than those available to refugees for persons with
subsidiary forms of protection with regard to the duration of residence
permits, access to employment, employment related education and integration
facilities.
- Unstable and unsafe conditions in
Afghanistan make an EU assisted return programme highly inappropriate
In principle,
ECRE fully supports any programmes that aim at assisting Afghan nationals who
genuinely consent to return voluntarily to Afghanistan. Notwithstanding, ECRE
would warn against the use of financial and other incentives aiming at inducing
people to consent to return within the context of assisted return programmes.
As it has been recognised by UNHCR, and by the President of the European Union,
Per Stig Møller, the lack of security in Afghanistan continues to be a
cause for concern and the safety of returnees can in no way be guaranteed.
Large-scale returns are likely to have a detrimental effect on the stability in
the country, and will therefore not lead to sustainable return, which would be
in the interests of the individuals concerned and the European Union.
10 October 2002