JRS - Jesuit Refugee Service Europe
Rue Maurice Liétart 31/5, B-1150 Bruxelles

The above-named organisations represent Christian churches throughout Europe, Roman Catholic, Orthodox, Protestant and Anglican, as well as church agencies particularly concerned with migrants and refugees.

It is a fundamental Christian principle to assist persons in need. This is the reason why Christian churches throughout Europe are working for and on behalf of displaced persons seeking protection.

Against this background we are grateful for the invitation to contribute to the consultation proceedings with the Commission on its Staff Working Paper "Revisiting the Dublin Convention" prior to the drafting of the new instrument to determine the Member State responsible for considering an asylum application.

We welcome the Commission Working Paper as a thorough stocktaking with regard to realising the aims and objectives of the Dublin Convention. We appreciate that this working paper constitutes part of a process of evaluation, to which Member States as well as Non-Governmental Organisations will contribute their experience. Furthermore, it offers valuable ideas for future policies.

In principle, we are in favour of a common European asylum system, which will be created according to the scoreboard within the next four years. However, a perfect asylum system remains of limited value if persons in need seeking protection are unable to have access to avail of it. We as Churches and church agencies attach fundamental importance to the guaranteed access of asylum seekers to national asylum procedures. At present, there are weighty reasons to fear that very many people are denied access:

The difficulties in obtaining legal access lead to more and more people seeking illegal ways of entry. The recent tragedy in Dover underlines the need for improved guarantees of access to asylum procedures. As was stated by the UNHCR after this tragedy, many recognised refugees in the EU had to come clandestinely using traffickers.

Therefore, merely to guarantee efficiency, any procedure determining the country responsible for considering an asylum application from our point of view has to provide for the possibility of legal entry to the territory. We are aware that this will not solve all the problems mentioned, but we consider it a crucial first step.

We support the clarification in the Commission's text of the fundamental purpose of the Dublin Convention: to provide all applicants for asylum with a guarantee that one of the Member States will assume responsibility for considering their asylum application and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these states acknowledging itself to be competent to examine the application for asylum.

While accepting that it is legitimate to seek to prevent multiple asylum applications in different Member States by individual applicants, we stress that this should not prevent the re-submission of an asylum application where there are new circumstances or evidence that would justify it, or where an asylum application was not fully considered in the first case.

We wish to underline that any future instrument needs to accommodate the fact that there are great differences in the legal and social systems across the EU. This has been the reason for e.g. English case law refusing to return asylum-seekers to France and Germany (Adan et al). In this light we regard it as of utmost importance to guarantee that people in need are granted the right to seek protection where they are most likely to receive it rather than forced to apply in a country where there application may be considered less favourably.

With a view to the period of proceeding determining which Member State will be responsible to consider the application a further objective needs to be added to the catalogue listed in the Commission's working paper. In its working document, the Commission rightly notes the excessive time taken to determine one Member State’s responsibility (paragraphs 15-19). At the moment, many asylum seekers waiting for such a decision have to live in social insecurity. Being aware of a possible overlap with the EU instrument on common reception conditions, it is urgent from our point of view to state the objective of providing social conditions guaranteeing fundamental rights such as housing, food, health care, and education.

EU member states have rightly pointed out, that there is no equal distribution of the "effort" (high number of asylum seekers in some countries compared to lower figures in others), thus the Dublin Convention and the new instrument have to take this into account as well. However, we are convinced that responsibility sharing will neither be reached only by an even distribution of refugees, nor by preventing refugees to use transit routes into other EU member states. Effective balance of efforts in our view includes the sharing of responsibility to guarantee protection and access to the territory as well as solidarity measures with less affluent countries. The criteria need to focus on the number of refugees as well as on the economic and social capacities of the receiving country.

The Commission’s proposal for a European Refugee Fund, which is currently still debated in the Council, is in our view the most appropriate instrument to address this imbalance by shifting money rather than human beings.

We want to criticize that one of the Commission text's provisions creates a nexus between the "misuse of asylum procedures" and "preventing asylum applicants being able to choose in which Member State they seek asylum" (para 13. (5)). The terminology of "misuse" is inappropriate in this context. The Commission itself notes, after mentioning the inconsistent standards of asylum decision-making as well as the standards of social care in different Member States, that (para 30): "…it is understandable that people in need of international protection may find one Member State a more attractive destination than another." It is unacceptable to blame asylum seekers for reacting in a natural way to the deficiencies of Member States’ systems for accommodating them.

Finally, the Commission states another major problem which affects the Convention’s aim of guaranteeing early recognition by a Member State of responsibility for an asylum application: the right reserved, but inconsistently exercised, by Member States to send applicants back to a "safe third country" (para 20).

We think that this problem in practice seriously undermines the right of access to procedures.

The "safe third country" concept applied in a number of EU member states is often based merely on a list of countries considered to be safe. This does not provide for individual cases, where persons may face persecution despite the fact that the country in principle is pursuing democratic policies and guarding human rights.

The practical impact of the above measures, as we can testify from the broad experience of the Churches whom we represent, is above all the real risk of refoulement, which contravenes the stipulations of the Geneva Convention on Refugees. Another dangerous consequence is a high number of "refugees in orbit", whose cases are neither examined in a EU member state nor in a country considered being safe.

Furthermore, it is the state practice to refuse legal entry which forces displaced persons to seek illegal ways of access, motivates falsification or destruction of documents, and drives persons seeking protection into the hands of organisations trafficking in human beings. In addition, the lack of evidence of the individual's immigration history as well as the difficulties in removing applicants after their application has finally been rejected, are partly due to these restrictive entry policies. The Commission paper deals extensively (paras 42-45) with the problems caused by lack of evidence.

If the "safe third country" concept is at all applied, it must always be based inter alia on

• Observation of the principle of non-refoulement to be examined in each individual case;
• An effective remedy to be open to the person seeking protection concerned;
• The guarantee that the person concerned will receive a fair examination in merit of the individual case after being returned to a safe country.

We are convinced that an asylum application should be examined in a country where the application is lodged. This seems the most appropriate solution with regard to the objective of shortening the duration of asylum procedures. We also believe that this will reduce administrative procedures and will thus be less expensive. It also provides for the various reasons a refugee is seeking refuge in a specific country. This system should be extended to enable other Member States than the one where the application was lodged to "opt in" for reasons of existing family strings or cultural relations on the basis of the double voluntary principle.

We are aware that we have commented on a wider scope than the future Community legal instrument on determining which Member State is responsible for considering an application for asylum will address. However, we see the need to consider these other aspects in order to provide for a practical instrument. We hope that our position will be taken into consideration.

Sincerely yours,

Lena Barrett Doris Peschke Bruno Kapfer
JRS Europe CCME General Secretary Caritas Europa Migration Officer

Christopher Layden Felix Leinemann
Director ICMC Migration Working Group of COMECE