Comments By Amnesty International
on the Commission proposal for a Council directive on minimum standards on procedures in Member States for granting and withdrawing refugee status
I. General remarks and essential principles.
After the entry into force of the Treaty of Amsterdam on 1 May 1999, a number of legally binding measures on asylum and refugee protection, including minimum standards on procedures for granting and withdrawing refugee status, are to be adopted within a period of five years.
To this end, the Commission issued a working document entitled "Towards common standards on asylum procedures" in March 1999. Amnesty International submitted written comments on this document in May 1999, stating the views of the organisation on the necessary elements for fair and satisfactory asylum procedures.
In its 1999 working document, the Commission envisaged two possible approaches to a first pillar instrument on asylum procedures: either to establish a certain level of procedural safeguards and guarantees which all Member States would have to provide, whilst allowing them some degree of flexibility, or to adopt a more prescriptive approach, which would require all Member States to apply exactly the same procedure, so that full harmonisation would be achieved (para. 9). The proposal presented by the Commission for a Council Directive on mimimum standards on procedures in Member States for granting and withdrawing refugee status (COM(2000) 578 final, of 20 September 2000) takes into account the approach envisaged by the Conclusions of the Presidency at the Tampere European Council in October 1999 that a common European asylum system, while including in the short term minimum standards, should lead, in the longer term, to a common asylum procedure and a uniform status for those granted asylum valid throughout the Union (p. 2).
Amnesty International has expressed its concern before that the process of harmonisation of asylum policies at EU level may result in the lowest common denominator for refugee protection. This proposal constitutes an example of this concern, as in the view of the organisation, it contains provisions that fall short of international refugee and human rights law, as it will be described below.
According to the Commission, the proposal "sets out the requisite measures for a simple and quick system for dealing with asylum applications" (p. 3, italics added). Amnesty International recalls that all asylum procedures must be fair and satisfactory, and that in accordance with international law, all refugees are entitled to a fair and satisfactory asylum procedure. In this regard, Amnesty International believes that some of the major shortcomings in asylum procedures are the use of concepts, such as manifestly unfounded claims, safe third country, safe country of origin, or accelerated procedures.
Amnesty International is concerned that the Commissions proposal endorses such practices as it leaves at the discretion of Member States the decision to resort to such concepts in order to exclude asylum seekers from accessing procedures where all the necessary procedural safeguards, such as for instance the right to effective legal assistance, are ensured. Furthermore, Amnesty International is also concerned by the possibility left to Member States to derogate from the rule that appeals must have suspensive effect. The combination of all these elements may therefore result in refoulement.
Amnesty International is aware of the legal framework provided by the Treaties in which the EU is to operate when adopting measures in the field of asylum. This legal framework limits EC instruments on asylum to minimum standards. However, minimum standards must be those currently provided by International Law, and no lower ones. Indeed, an essential element of the EU legal framework is provided by Article 6 of the Treaty on European Union (TEU). Under Article 6 of TEU, there is a legal obligation for the Union to "respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms [ ] as general principles of Community law".
One such international obligation of Member States is the principle of non-refoulement, enshrined in international refugee and human rights law. This principle constitutes the cornerstone of refugee protection and prohibits the return of individuals, directly or indirectly, to a country where they are at risk of serious human rights violations. The principle of non-refoulement is recognised by the international community as a norm of customary international law, binding on all states. Full compliance by Member States with this legal obligation requires providing access to all refugees to fair and satisfactory asylum procedures.
In its response to the Commissions proposal, Amnesty International wishes to restate the essential principles which, according to the organisation, constitute a minimum standard for fair and satisfactory asylum procedures under international law. These principles should apply to all procedures following an asylum claim:
1. The fundamental principle of non-refoulement demands that asylum procedures are adequate to identify effectively all those in need of protection.
2. All asylum-seekers, in whatever manner they arrive within the jurisdiction of a state (including those still at the border or in so-called "international zones"), must be referred to the body responsible for deciding on claims for asylum.
3. The body responsible for deciding on asylum claims must be an independent and specialised authority.
4. Decision-makers must have expertise in international refugee law and international human rights law. Their status and tenure should afford the strongest possible guarantees of their competence, impartiality and independence.
5. Decision-makers must be provided with the services of a documentation office whose task should be impartially to collect and provide them with objective and independent information on the human rights situation in asylum seekers countries of origin or any country to which they might be sent.
6. All asylum-seekers, at all stages of the procedure, must benefit from the right to legal counsel and interpreters, and the right to contact and to have access to UNHCR and to other non-governmental organisations.
7. Asylum claims should be examined at first instance through a personal appearance by every asylum-seeker before the decision-makers of the independent body, responsible for deciding on asylum claims, where there is a thorough examination of the circumstances of each case.
8. All asylum-seekers must receive written reasons if their asylum claim is rejected, and have the right to appeal against a negative decision. The appeal must normally be of a judicial nature and must in all cases have suspensive effect on expulsion.
9. Special circumstances may warrant the exceptional treatment of an asylum claim or a group of claims from persons in a similar situation. (These circumstances may include, for example, a determination that an asylum claim is manifestly unfounded in the sense that it is clearly fraudulent or not related in any way to the criteria for granting asylum). Such exceptional treatment would only permit that the appeal of the decision at first instance be expedited, but even such an expedited appeal must in all cases have suspensive effect on expulsion.
In addition to these essential principles, practical measures are needed as safeguards to ensure that the essential principles are fully observed in practice. Among the measures which Amnesty International believes to be essential are the following:
These principles should be seen as one coherent entity. Only the combination of these principles, taken as a whole, creates a structure that provides the absolute minimum to guarantee that refugees can be provided the necessary protection. It is important to stress that these principles constitute only the minimum standard essential to ensure a satisfactory asylum procedure.
II. Scope and definitions (Chapter I)
Amnesty International would like to make the following remarks concerning Article 2:
III. Basic principles and guarantees (Chapter II)
1. Access to the territory and to the asylum procedure
Article 4(2) of the proposal states that "Member States shall ensure that the applicant for asylum has an effective opportunity to lodge an application as early as possible". In its comments to this provision, the Commission states that "[r]ules on asylum procedures do not make sense if persons who wish protection from a Member State effectively fail to gain access to its asylum procedure" (p. 11). Article 3(1) clarifies that the Directive "shall apply to all persons who make an application for asylum at the border or on the territory of Member States" (italics added).
Amnesty International welcomes these provisions, asthe effective protection of the right to asylum and the principle of non-refoulement (enshrined in Articles 18 and 19 of the Charter of Fundamental Rights of the European Union) requires that access to the territory of asylum countries, as well as to fair and satisfactory asylum procedures is ensured to all applicants, whether in-country or at the border (including those in so-called "international zones").
The Commission also states that "any statement signaling a persons wish to obtain protection from persecution, or any manifestation or expression of the person indicating that he fears to be returned to his country, should therefore be treated as an application for asylum" (p. 11). The organisation recommends that the provision be worded to ensure the establishment of a clear obligation for Member States in this regard.
Ensuring access to protection would be in line with conclusion 3 of the Tampere Summit, whereby the Heads of State and Government reaffirmed that the common asylum policies "must be based on principles which [ ] offer guarantees to those who seek protection in or access to the European Union", and particularly with conclusion 13 which reaffirms "the importance the Union and Member States attach to absolute respect of the right to seek asylum".
However, the organisation is concerned that the implementation of other provisions in this proposal might in practice prevent such effective access (see below for instance, comments on Chapter V, on admissibility procedures). Equally, Amnesty International has stated repeatedly that while recognising that States are entitled to control immigration and entry to their territory, the organisation calls on them, in doing so, to ensure and demonstrate adequately that asylum-seekers have effective access to their asylum procedures and any restrictions on entry, such as visa requirements, the fight against forged documents, carriers sanctions, the increase in the effectiveness of immigration liaison officers, the conclusion of readmission agreements or other similar restrictive measures, do not obstruct this access in practice.
2. Individual and thorough examination
Article 6 provides thatdecisions on applications for asylum shall be taken individually, objectively and impartially.
Amnesty International welcomes this provision, as every asylum claim should be dealt with individually in a thorough examination of the circumstances of the individual case.This also includes the determination on what can be considered a safe third country and a safe country of origin (see below, sections IV and V of this paper).
3. Right to be informed
Article 7(a) of the proposal establishes that all asylum applicants "must be informed, prior to examination of their application for asylum, of the procedure to be followed and of their rights and obligations during the procedure, in a language which they understand".
Amnesty International welcomes this provision, and recommends that it ensure that all asylum seekers are fully informed of the legal consequences of their statements and other involvement during the procedure, as well as of the agreement they may give at any stage of the procedure.
Further to receiving information prior to the examination of the application, the provision should also ensure that all applicants are given effective access to all relevant information in the case at all stages of the procedure, and that they are given the opportunity to make observations on this information.
4. Access to interpreters
Article 7(b) states that all asylum seekers "must be given the services of an interpreter, whenever necessary" and that such services "must be paid for out of public funds, if the interpreter is called upon by the competent authorities" (italics added).
Access to competent, qualified and impartial interpreters should be ensured at all stages of the procedure, as the lack of interpretation may affect the opportunities of asylum seekers to present their cases properly. The services of qualified and impartial interpreters should be provided free of charge when the applicant does not have sufficient means to pay for them. Amnesty International calls for the wording of this provision to be revised in order to ensure that effective access to interpreters by all asylum seekers at all stages of the procedure is guaranteed and that the competent authorities have no discretionary power to decide whether to grant this access or not.
5. Rejection of claims
Article 7(d) establishes that "if an application is rejected, the reasons for the decision in fact and in law shall be stated and information given on the possibility for review of the decision and, where applicable, on how to file an appeal and the relevant time limits".
Amnesty International welcomes this provision, as a negative decision can only be appealed properly if the asylum seekers is informed of the considerations that have lead to that decision. If asylum-seekers do not have this information, they are faced with an impossible task: the rebuttal of unknown presumptions.
In this regard, Amnesty International is concerned that the actual scope of this provision may in practice be limited by the provision contained in Article 13(2), which allows Member States to restrict the access of the reviewing bodies to information concerning the situation in countries of origin and in transit countries, where this information is considered confidential (see below, under section 10).
6. Access to legal assistance
Amnesty International notes with great concern that the right to legal assistance at all stages of the procedure for all asylum seekers is not included in the guarantees listed in Article 7 of the proposal. Indeed, Article 9(4) of the proposal guarantees the right to legal assistance (which will have to be provided free of charge if the applicant has not adequate means to pay for it himself) only "after an adverse decision by a determining authority", this is, only at the appeals stage. Furthermore, under Article 9(3) only asylum applicants in the regular procedure have a right to have their legal adviser or counsellors present during the interview, while asylum applicants in the accelerated procedure, or whose claims are subjected to admissibility, are deprived of this right.
The right to communicate with UNHCR, however, is guaranteed in the proposal. Article 7(c) states that all applicants must be given the possibility to communicate with UNHCR or "with other organisations that are working on behalf of the UNHCR at all stages of the procedure". Such contact is further guaranteed by Article 17(a), which explicitly states that UNHCR shall have access to asylum seekers, including those under detention and in airport transit zones. Article 9(1) of the Commissions proposal states that "all applicants for asylum must have the opportunity to contact in an effective manner organisations or persons that provide legal assistance at all stages of the procedure" (italics added).
While these safeguards are welcome, they do not constitute sufficient guarantee of the right to legal assistance, which should be recognised to all asylum seekers at all stages of the procedure. Furthermore, the scope of Article 9(1) is hindered by Article 9(2), which allows Member States to "regulate the access of organisations providing legal assistance" to "closed areas designated for the examination of applications for asylum", provided such rules "do not render access impossible".
Amnesty International recalls that Member States have the obligation under international law to ensure human rights protection of all persons under their jurisdiction, and that this includes also those under detention and in international zones. In this respect, the European Court of Human Rights stated in the case of Amuur v. France (judgment of 20 May 1996), regarding the detention of asylum seekers in the international zone of Paris-Orly airport, that even though the applicants were not in the territory of the State Party concerned, within the meaning of its national legislation, "holding them in the international zone of [the airport] made them subject to French law" since "despite its name, the international zone does not have extraterritorial status" (para. 52). The Court reaffirmed this decision in the case of D. v. the UK (judgment of 21 April 1997), where it stated that "regardless of whether or not [the applicant] ever entered the United Kingdom in the technical sense [ ] it is to be noted that he has been physically present there and thus within the jurisdiction of the respondent State. It is for the respondent State therefore to secure to the applicant the rights guaranteed under" the Convention (para. 48).
Amnesty International recalls that asylum seekers are vulnerable and cannot expect to know how to exercise their rights in the asylum procedure. For this reason, effective legal assistance should be ensured. Lawyers assisting asylum-seekers should, where at all possible, be specialised in refugee law, and in all cases they should be given full access to their clients and sufficient time to familiarise themselves with and to prepare the case.
In view of the crucial importance of decisions on asylum claims, which have an effect on fundamental rights, such as inter alia, the right to life and to freedom from torture, Amnesty International calls for the relevant provisions in the proposal for an EC Directive on asylum procedures to be amended in order to ensure that this instrument guarantees that all asylum-seekers (including those under detention, in transit zones or in any other "closed area", and regardless of the procedure) are recognised the right to effective legal assistance at all stages of the procedure and that all asylum seekers are guaranteed effective access not only to UNHCR but also to other organisations working on behalf of refugees (whether working on behalf of the UNHCR or not) at all stages of the procedure.
7. Personal interview
Article 8(1) establishes that "before a decision is taken by the determining authority, the applicant for asylum must be given the opportunity of a personal interview on the admissibility and/or substance of his application for asylum with an official qualified under national law". Article 14 further establishes that "personnel interviewing applicants for asylum have received the necessary initial training for this purpose" (para. b) and that "personnel interviewing persons in a particularly vulnerable position and (unaccompanied) minors have received the necessary initial training with regard to the special needs of these persons" (para. c).
Amnesty International welcomes this provisions which "lays down the procedural guarantee that every applicant is entitled to a personal interview" (p. 13 of the explanatory memorandum). Amnesty International calls for Article 8(1) to be amended to state expressly that the competent authority must conduct a personal interview with all applicants for asylum, so that other provisions in the proposal, such as for instance, Articles 23 or 29, cannot be construed as allowing discretion to the competent authority to give the opportunity or not to the particular asylum seeker to have a personal interview. If the personnel interviewing applicants found then that the interview is not possible for reasons such as, for instance, physical or mental incapability, the competent authority must ensure that the asylum claim can be fully presented through other means.
Amnesty International is also concerned by the restrictions contained in Article 8 in relation to asylum seekers in accelerated procedures and to those whose claims are subjected to admissibility. As it has been stated above, in application of Article 9(3) asylum applicants in the accelerated and admissibility procedures cannot benefit from the presence of their legal adviser or counsellor during the personal interview. This situation is compounded by the fact that under Article 8(2), all asylum applicants (including those in accelerated and admissibility procedures) may be requested their agreement with the contents of the transcript of the interview, which shall be read out to them, while asylum applicants in accelerated and admissibility procedures cannot consult the transcript of the interview whose content they have agreed on, as the right to consult the transcript of a personal interview on the substance and to make comments on it, is not available to asylum seekers in accelerated procedures (Article 8.6). Therefore, asylum applicants in accelerated and admissibility procedures may present their agreement to a text they cannot consult, without being assisted on the legal consequences of their statements and of their agreement to them (for a decision on their case) and without further access and comments on that transcript.
Amnesty International recalls that all asylum applicants must be given effective access to all relevant information in the case at all stages of the procedure, and the opportunity to make observations on this information. Amnesty International calls for the relevant provisions in the proposal for an EC Directive on asylum procedures to ensure that all asylum seekers in all procedures are recognised the right to legal assistance at all stages of the procedure. This includes the possibility for all asylum seekers (including those in detention and in airport transit zones and regardless of the procedure) to have effective access to their legal adviser; the possibility for their legal advisers to be present during the interview; and the possibility to consult and make comments on the transcript of the interview.
Article 10 of the proposal contains special safeguards for unaccompanied minors. Amnesty International welcomes this provision and recalls that under international law, including the 1989 Convention on the Rights of the Child, minors enjoy special protection:
Article 11(1) of the proposal excludes the detention of asylum seekers "for the sole reason that his application for asylum needs to be examined". It further establishes in which specific cases asylum seekers can be detained for the purpose of making a decision in accordance with a procedure prescribed by law and only while detention is necessary. The grounds for detention include "in the context of a procedure, to decide on his right to enter the territory" (Article 11(1)(d)). Amnesty International notes that this is not one of the grounds included in EXCOMM Conclusion 44 (XXXVII) and recalls that any EC legal instrument regarding the legal basis and/or the conditions for detention of asylum seekers in the EU needs to comply with international law and standards. On the detention of asylum seekers in the EU and the applicable international standards Amnesty International refers to its report Detention of Asylum Seekers in the European Union (Brussels, December 2000).
Paragraph 2 of Article 11 establishes the obligation for Member States to provide by law "for the possibility" of a review of the detention of asylum seekers. Amnesty International recommends that this provision be worded to ensure that it cannot be interpreted as leaving it to the discretion of Member States the "possibility" or not to provide for that revision. Under international law, the establishment of a mechanism to review the detention of asylum seekers is mandatory.
Amnesty International believes that detention of asylum seekers should be avoided. No asylum seeker should be detained unless it has been established that detention is necessary, is lawful and complies with one of the grounds recognised as legitimate by international standards. In all cases, detention should not last longer than is strictly necessary. All asylum seekers should be given adequate opportunity to have their detention reviewed (both on its legality and of its necessity) by means of a prompt, fair, individual hearing before a judicial or other similar authority whose status and tenure afford the strongest possible guarantees of competence, impartiality and independence. The organisation opposes the practice of detaining asylum-seekers when adequate and effective safeguards do not exist or are not followed.
10. Decision-making authorities.
The proposal includes provisions relating to the activities of the decision-making authorities in Articles 12 to 14.
Amnesty International recalls that the nature and competence of the determining authority is of great importance. As the human rights, including the right to life and freedom from torture, of individuals may be at stake, the responsibility for decision-making must be taken by an appropriate body and adequately qualified officials.
The determining-authority must be a specialised body. The status and tenure of the decision-makers should afford the strongest possible guarantees of their competence and impartiality. It is essential that the nature of the body established to examine and decide on asylum claims ensures decision-making which is independent, based only on human rights and other considerations relevant to asylum, and not influenced by other considerations such as immigration or foreign policy.
Amnesty International notes that Article 13(2) leaves it at the discretion of Member States to allow or not access to the reviewing bodies to information concerning the situation in countries of origin and in transit countries, where this information is considered confidential. Amnesty International calls for asylum decisions at all stages of the procedure to be based on thorough and impartial information, including information on the situation in the country of origin or transit. A restriction of access to such information may deprive the asylum applicant of an effective right of appeal and may constitute a breach of international law. In this regard, the European Court of Human Rights has already expressed its views on the use of confidential material in asylum cases. The Court stated in the case of Chahal v. the UK (judgment of 15 November 1996) that it "recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved" and that "that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice" (para. 131).
Amnesty International calls for the provision in Article 13(2) to be reworded to ensure that access by the reviewing bodies to all the relevant information for the decision of the case is ensured, in compliance with international law, and in particular, with the European Convention of Human Rights, as interpreted by the European Court of Human Rights.
Article 14 establishes the obligation of Member States to ensure that the competent authorities are properly trained to deal with asylum applications. Paragraph 2 of Article 14, however, only requires the training of the reviewing authorities in the same conditions than the determining authority when the former had requested so. Amnesty International recalls that the officials responsible for examining and making decisions on asylum requests at all stages of the procedures should have the expertise and knowledge especially required for the performance of their tasks, including expertise in international refugee and human rights law.
11. Fresh applications
Article 16(3) establishes that "if the applicant places himself at the disposal of the authority for the purpose of the examination of his application for asylum after the examination of the application has been discontinued pursuant to paragraphs 1 or 2, his request may be considered a new application for asylum". In accordance with Article 28(1)(f) this application may be considered manifestly unfounded if the application raises "no relevant new facts with respect to his particular circumstances or to the situation in his country of origin".
These provisions do not take into account that in certain cases, an asylum seeker may withdraw an application for asylum voluntarily due to the fact that the status of asylum seeker may not compatible with some other title to stay, such as a residence permit on the grounds of marriage or the enjoyment of another form of protection. When asylum seekers lose their title to stay in the country while still in need or protection, they may wish to continue their application for asylum even in the absence of "relevant new facts with respect to his particular circumstances or to the situation in his country of origin". Amnesty International calls for this provision to be reworded to take due account of these circumstances, so that asylum seekers who have withdraw their asylum application voluntarily due to such or similar circumstances, are not "penalised" when deciding to continue pursuing their asylum claim.
IV. Admissibility (Chapter III)
Article 18 of the Commissions proposal establish that Member States may dismiss a particular application for asylum as inadmissible on the following three grounds:
1) If another Member State is responsible to examine it, in application of the appropriate legal instrument.
2) If there is a first country of asylum.
3) If there is a safe third country.
All the grounds included in Article 18 to declare an application inadmissible are based on the presumption that certain countries are safe for a particular asylum seeker. On the safe third country concept and the necessary safeguards, Amnesty International refers to its comments on the Commission staff working document regarding the revision of the Dublin Convention (Brussels, October 2000).
As Amnesty International has repeatedly stressed, International refugee law does not require that a refugee must seek asylum in the first country whose territory he or she reaches. It is the country where a refugee applies for asylum which is obliged to consider the application substantively and to ensure that the refugee is not directly or indirectly returned to persecution. A State can only be released from its obligation to consider an application for asylum if that responsibility is assumed by a safe third country. States can only be considered as safe third countries (outside or within the EU) if they provide effective and durable protection, which includes effective access to a fair and satisfactory asylum procedure. Guarantees in this regard must be obtained in each individual case, regardless of any readmission agreement.
The decision as to whether a country can be considered safe for a particular asylum-seeker can only be determined on a case-by-case basis in a procedure that examines fully this point and that fulfils the essential principles which, according to Amnesty International, should form a minimum standard for a fair and satisfactory asylum procedure (see above, section III(6) and (7)).
The following comments are to be read in the light of the above-made statements.
1. Application of the Dublin Convention or a similar instrument
Article 18(a) allows Member States to consider asylum applications inadmissible if another Member State "is responsible for examining the application, according to the criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country or stateless person in one of the Member States".
On the system for the determination of responsibility to examine asylum claims by Member States, Amnesty International refers to its comments on the Commission staff working document regarding the revision of the Dublin Convention (October 2000). In particular, Amnesty International notes that it is not enough that a Member State be responsible, but also that such responsibility be accepted in each individual case, as a State can only be released from its obligation to consider an asylum application substantively if that responsibility is assumed by a safe third country (outside, but also within the EU), and it must first establish that the third country is both safe and explicitly guarantees that it will take on the responsibility. Article 18(a) should therefore be amended to ensure that inadmissibility on this grounds can only be declared if the responsible Member State is both safe in the particular case and has explicitly guaranteed that it will take on the responsibility.
2. Safe third countries
The last grounds for considering asylum applications inadmissible are that "a country which is not a Member State is considered as a safe third country for the applicant" (article 18(c)). A country is considered as a safe third country if the requirements set out in Annex I (Article 21), combined with those in Article 22 are fulfilled.
Article 21 allows Member State to retain or introduce lists of safe third countries by law, provided those countries fulfil the criteria established in Annex I. Notwithstanding this designation, the conditions of Article 22 to ensure that the country is safe for the individual applicant need also be observed, namely, that:
These safeguards are not sufficient, in the view of Amnesty International, to ensure that refugees will be indeed protected from refoulement. Therefore, Amnesty International calls for Article 22 to be amended to ensure that the provision includes the following safeguards:
V. Substantive Determination Procedures (Chapter IV)
The Commissions proposal sets out two procedures for the substantive determination of an asylum claim: a regular procedure and an accelerated procedure. Some of the basic principles and guarantees included in Chapter II of the proposal must be ensured in both procedures (see Article 7), while some only apply to the regular procedure (see for example Articles 8(6) and 9(3)). Additional guarantees for the regular procedure are contained in Article 25. Amnesty International recalls that all asylum procedures must be fair and satisfactory, and calls for the essential principles for fair and efficient asylum procedures described under section I of this paper to be ensured in all procedures.
1. The regular procedure
a) Burden of proof
Article 25(1) sets the obligation for Member States "to ensure that an applicant for asylum is given the opportunity to cooperate with the competent authorities in order to present the relevant facts of his case as completely as possible and with all available evidence".
Amnesty International welcomes the provision contained in Article 25(4), whereby, Member States shall ensure that if the applicant has made a genuine effort to substantiate the claim, the determining authority should "give the applicant the benefit of the doubt, despite a possible lack of evidence for some of the applicants statements". However, the condition for this safeguard to apply is that the examiner find "the applicants statements to be coherent and plausible, while not running counter to generally known facts".
In the view of Amnesty International, an applicants claim should never be rejected solely because the initial account supplied by the applicant was not complete, or because statements made during the interview are inconsistent with statements made on arrival. Untrue statements made by the applicant should not by themselves constitute a reason for rejection of the asylum claim and the use of false documents should not be prejudicial to him. Such position would be consistent with the observations of the UN Committee Against Torture and the European Court of Human Rights, which have repeatedly stated that some incoherence in the applicants statements should not affect the general veracity of an account (see for instance, Mutombo v. Switzerland, CAT decision of 27 April 1994, para. 9.2; or Asker et al. v. Turkey, judgment of 24 April 1998, paras. 26 and 56).
Amnesty International notes that the provision refers to information on the travel routes as one of the relevant facts of the case, and recalls that under international refugee law, the travel routes of asylum seekers are irrelevant for the determination of refugee status.
Amnesty International further notes that the provision contains no reference to the role of the examiner. The UNHCR Handbook on procedures and criteria for determining refugee status states that "the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application" (para. 196).
Amnesty International calls for Article 25 to be amended taking into consideration the above mentioned concerns.
b) Withdrawal procedure
Article 26(3) of the proposal allows Member States to derogate from the safeguards in the procedures "where it is impossible for the determining authority to comply with the provisions for reasons specifically relating to the grounds for withdrawal or cancellation". The explanatory memorandum states that "this is the case when the person in question has voluntarily re-established himself in the country where the persecution is feared".
Amnesty International calls for this provision to be re-worded in order to ensure that it cannot be construed as allowing for derogation of the procedural safeguards in cases different from the one contained in the explanatory memorandum.
2. The accelerated procedure for manifestly unfounded claims
A Member State may adopt or retain an accelerated asylum procedure for cases "that are suspected to be manifestly unfounded". A case is manifestly unfounded if the criteria in article 28 are met. Amnesty International notes that according to EXCOMM Conclusion 30 (XXXIV) manifestly unfounded claims "are to be defined as those which are clearly fraudulent or not related to the criteria for the granting of refugee status [ ] nor to any other criteria justifying the granting of asylum". Therefore, the organisation calls for Article 28 to be reworded to ensure that no other grounds than these may be used to define a manifestly unfounded application for asylum.
Amnesty International believes that the non-refoulement obligation, which requires Member States to identify all those protected by this rule, is best met by a full and satisfactory asylum procedure at first instance, where all asylum claims are properly examined by the competent authority. Amnesty International acknowledges that special circumstances may warrant the exceptional treatment of an asylum claim or a group of claims from persons in a similar situation. Such exceptional treatment however, would only permit that the appeal against a negative decision at first instance may be expedited and only if an asylum claim can be identified in a satisfactory procedure at first instance as clearly fraudulent or not related in any way to criteria for granting asylum. Even if expedited, the appeal procedure should still allow for a fair re-examination of an asylum claim and must in all cases have suspensive effect on expulsion, as provided for by international law and standards.
Amnesty International believes that the essential principles for fair and satisfactory asylum procedures, as described in section I of this paper, should apply to all asylum claims, including those which are considered manifestly unfounded. However, the proposal does not ensure that all essential principles are guaranteed in accelerated procedures (see above, section III(6) and (7) of this paper).
Amnesty International calls for the proposal for an EC Directive on asylum procedures to be amended in order to ensure that the consideration of manifestly unfounded claims is only given to those that can be identified in a satisfactory procedure at first instance as clearly fraudulent or not related in any way to criteria for granting asylum. It also calls for this EC Directive to ensure that all procedures, including accelerated procedures, respect the minimum standards for fair and satisfactory asylum procedures under international law, which are described in section I of this paper.
The concept of safe country of origin
Article 28(1)(e) establishes that an asylum application may be dismissed as manifestly unfounded if "the applicant is from a safe country of origin within the meaning of Articles 30 and 31 of this Directive". According to Article 30, a country can only be considered as a safe country of origin in accordance with the principles set out in Annex II to the Directive. Although Article 30 allows for the designation of safe country of origin lists by law, in accordance with Article 31, regardless a general presumption of safety, the country has to be safe for the individual applicant.
Amnesty International opposes the use of the safe country of origin concept to restrict access to a full and satisfactory asylum procedure. In the view of Amnesty International, no country can be labelled as safe in general terms. Amnesty International has documented serious human rights violations in countries throughout the world, and such violations may occur in any country. For instance, 12 Member States feature in Amnesty Internationals Report 2000. A country can be safe in general for particular groups of persons while it poses a threat to others. Also the human rights situation in countries may change quickly. Therefore, the safe country of origin concept cannot be used as a tool to restrict access to a fair and satisfactory individual procedure on the asylum claim in such a manner that the procedure offered to refugees fleeing from such countries do not fulfil the requirements of a fair and satisfactory asylum procedure. An individual examination of all asylum claims in a fair and satisfactory procedure, even when applicants may be said to come from safe countries of origin, should be mandatory in an EC Directive on asylum procedures.
The use of the safe country of origin concept to restrict access to an asylum procedure with full guarantees constitutes a discrimination among refugees. Such difference in treatment is forbidden by Article 3 of the UN Refugee Convention. Furthermore, Amnesty International notes that article 41 of the Commissions proposal states that "Member States shall apply the provisions of this Directive [ ] without discrimination as to sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation or country of origin" (italics added). Amnesty International therefore remains concerned that people coming from countries considered safe may be forced to overcome an unreasonable presumption against the validity of their claim, and will have to do so in a procedure which, because it is intended to screen out cases from the regular procedures, may not offer sufficient safeguards.
The safety of a country of origin for a particular asylum seeker should be assessed by an independent, expert and determining authority in a procedure ensuring all essential guarantees, provided that it has access to complete, impartial and reliable information on conditions in countries of origin, particularly information on the human rights situation. If indeed such information is available to the decision-makers, then claims can be expeditiously assessed and there will be no need to screen out in advance claims which are presumed to be undeserving because of the countries the asylum-seekers come from.
VI. Appeals procedures (Chapter V)
Article 32 states that "applicants for asylum have the right to appeal against any decision taken on the admissibility or the substance of their application for asylum" and that "appeal may be on both facts and points of law". Article 33(1) of the Commission proposal provides that an "[a]ppeal shall have suspensive effect".
Amnesty International welcomes this provision, as all asylum seekers should have a right to appeal effectively a negative decision on their cases.
However, the organisation notes with concern that Article 33(2) allows for Member States to derogate from the rule on the suspensive effects of appeals in safe third country cases, manifestly unfounded cases and in cases where there are grounds of public order and national security. Furthermore, although Article 33(3) allows applicants to apply to the competent authority for leave to remain during the appeals procedure, exception is made in safe third country cases.
Amnesty International believes that this provision constitutes a violation of International Law and standards. The European Court of Human Rights reminded Member States in its 1999 judgement in the case of TI v. the UK, involving the application of the Dublin Convention between the UK and Germany, that any measure adopted by them individually or collectively had to ensure the fulfilment of their obligations under the European Convention of Human Rights. One such obligation is to provide for effective remedies against violations of the rights guaranteed by the Convention.
The body of decisions by International human rights monitoring bodies repeatedly establishes the absolute nature of the prohibition of torture (allowing no exception) and the preventive nature of the principle of non-refoulement. International monitoring bodies have made wide use of their possibility of asking the State Parties concerned to apply interim measures to refrain from removing applicants while the claim was being considered by international bodies. International monitoring bodies have already replied to the concerns expressed by State Parties related to the potential abuses of the International human rights protection mechanisms by rejected asylum seekers, stating that notwithstanding the legitimate concerns State Parties may have in this regard, the security of applicants must always be ensured (see for instance, Aemei c. Switzerland, communication 34/1995, observations by the UN Committee against Torture of 9 May 1997).
The European Court of Human Rights stated in the above mentioned case of Chahal v. the UK that in non-refoulement cases "the issues concerning national security are immaterial" (para. 150), since "given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to [the prohibition of torture] the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State" (para. 151).
The right to an effective remedy is also enshrined in Article 47 of the recently approved Charter of Fundamental Rights of the European Union, which recognises, inter alia, the right to asylum and the prohibition of refoulement. This provision states that "everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal" (italics added).
Amnesty International calls for an EC Directive on asylum procedures to ensure that all appeals are of a suspensive nature, excluding any exception. In all cases the asylum-seeker must be allowed to stay in the country until the outcome of the appeal. This principle must apply in all cases in order to ensure adequate protection for refugees against being forcibly returned to a country where they are at risk of serious human rights violations.
VII. General provisions (Chapter VI)
Article 41 states that "Member States shall apply the provisions of this Directive to applicants for asylum without discrimination as to sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation or country of origin".
Amnesty International welcomes the inclusion of this provision in the Directive which takes account of the obligation of Member States under international law to protect refugees without discrimination.
VIII. Summary of Amnesty International recommendations
The proposal for a Directive on asylum procedures should be amended to ensure that: