On 20 September 2000 the European Commission presented a " Proposal for a Council Directive on minimum standards on procedures

Commission proposal for a Council Directive

on minimum standards on asylum procedures

Caritas Europa briefing paper

On September 20, 2000 the European Commission presented a " Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status". The proposal, based on Article 63, (1), (d) of the EC Treaty, is the first step towards a common European asylum system as foreseen in the Tampere conclusions. The aim of the proposal is to establish minimum standards at community level for a simple and quick system in which refugee status is granted or withdrawn.

Definitions, basic principles and guarantees

The proposal puts forward a wide range of minimum procedural guarantees. In particular, it focus on:

The proposal covers asylum applications lodged at the border or on the territory, but not requests for diplomatic or territorial asylum

The filing of an asylum application shall not be subject to any bureaucratic formality; Any application for protection is presumed to be an application for asylum

Asylum seekers must be informed of the procedure and their rights and obligations during the asylum procedure, in a language he/she understands. Asylum seekers must be given the services of an interpreter if this is necessary

Applicants must be given the opportunity of a personal interview before a decision is taken;

Applicants must be given the opportunity to contact UNHCR and also organizations or persons that provide legal assistance at all stages of the procedure. All Asylum seekers have the right to a legal adviser or counsellor to assist them after an adverse decision — this assistance must be given free of charge at this stage of the procedure, if the asylum seeker can’t afford the expenditure

Decisions are to be communicated in written. In case of rejection, asylum seekers must be informed of main reasons and on the possibility of a review in a language they understand

Member States shall ensure specific rights for unaccompanied minors, e.g. a legal guardian or adviser must be appointed

Only in few cases asylum seekers may be held in detention means: "confinement within a restricted area, such as prisons, detention facilities or airport zones, where his freedom of movement is substantially curtailed"

Authorities involved in asylum procedures have to be specifically qualified; they shall have access to up-to-date country of origin information and the right to ask advice from experts

The proposal finally stresses the need for privacy of all asylum seeker’s information

Admissibility procedure

The proposal foresees three cases of inadmissibility:

If another Member State is responsible for the concerned asylum application according to the criteria for determining the responsible Member State for considering an asylum application lodged in one of the Member States;

If a third country is considered as a "first country of asylum" for the asylum seeker;

If a third country is considered as a "safe third country".

According to the proposal, a country is considered as a "first country of asylum" if the asylum seeker has already been admitted to this country as a refugee or for other reasons and he can still rely on this protection.

As far as the "safe third country" concept is concerned, the proposal specifies that it can be applied when the third country generally observes the standards laid down in international law for the protection of refugees (outlined in detail in Annex I to the proposal) and basic standards laid down in international human rights law. Member States may retain or introduce laws or regulations designing countries as safe third countries, but by doing so the State shall notify them to the Commission. Notwithstanding such a list of safe third countries this notion may only be applied if:

the asylum seeker has "a connection or close link" with this country or has had the opportunity in the past to avail himself of the protection in this country and

there are reasons to consider that the asylum seeker will be re-admitted to this country and

there are no reasons for not considering the country as safe in the asylum seeker’s particular situation.

If a personal interview is foreseen, the proposal asks Member States to carry out the interview within 40 working days after the application has been lodged. The decision has to be taken within no more than other 25 working days. If a personal interview has not been conducted, the time limit shall be 65 working days as well for taking a decision. Non-compliance with the time limits shall result in the application for asylum being processed under the regular procedure.

Regular procedure

Member States shall adopt a reasonable time limit for examination of applications. And member States shall take appropriate measures to ensure that an applicant is given the opportunity to present the relevant facts of his case as completely as possible. Member States shall ensure that the determining authority gives the applicant the benefit of the doubt, despite a possible lack of evidence for some of the applicant’s statements.

Accelerated procedure

Member States can foresee an accelerated procedure in relation to the application suspected to be manifestly unfounded if:

the applicant presented false information on identity or nationality;

the asylum seeker does not collaborate for determining his\her identity or nationality and it is presumed that he\she has destroyed or disposed of useful documents in bad faith;

the application was lodged at the last stage of a procedure to deport him

the applicant does not raise any protection related issues or comes from a "safe country of origin".

The applicant submitted a new application raising no new facts

In accordance with the proposal, a country is considered as a "safe country of origin" if it generally observes the basic standards laid down in international human rights law (pointed out in detail in Annex II to the proposal). Member States may retain or introduce legislation that allows for designation by law or regulation of safe countries of origin. Member States shall notify such lists to the Commission. Notwithstanding a list of safe countries of origin this notion can only be applied if the asylum seeker has this country’s nationality or, if the country was a stateless person’s habitual residence, and if there are no grounds for considering the country not to be a safe one in the particular situation of the asylum seeker.

The time limits within the accelerated procedures are the same as in the admissibility procedure.

The proposal allows Member States to apply or not the specific provisions for inadmissible and manifestly unfounded cases, but, in case they apply such provisions, Member States are obliged to observe common standards.

Appeals procedures

Member States have to guarantee a three-tier system that includes a decision-making authority, a reviewing body and an Appellate Court. Asylum seekers have the right to appeal against any decision taken on the admissibility or the substance of the application.

Appeals shall have suspensive effect that permits the asylum seeker to remain in the territory or at the border of the Member States concerned awaiting the outcome of the appeal. Member States may derogate from this rule in the following cases:

application of the "safe third country" rule;

application dismissed as manifestly unfounded;

in case of national security or public order reasons.

In such cases the asylum seeker has the right to apply to the competent authorities for leave to remain. No expulsion may take place before the competent authority has taken a decision on this request, except if the "safe third country" rule was applied.

Member States shall lay down time limits for giving notice of appeal and for filing grounds of appeal. The minimum deadline for filing grounds of appeal shall in no case be less than 20 working days.

Accelerated appeals procedures

In case of appeal against a decision declaring an application inadmissible or manifestly unfounded the reviewing body will have to take a decision within 65 working days. Member States may introduce a procedure that provides for automatic review by a reviewing body of decisions finding cases to be inadmissible or manifestly unfounded.

The proposal affirms the right to further appeal to the Appellate Court. Member States can determine the competence of such Appellate Court according to the nature of the reviewing body. If it is an administrative or quasi-judicial body, Member States have to provide an Appellate Court competent on facts and points of law. Otherwise, if the reviewing body has judicial nature, Member States may limit the Appellate Court power to points of law. Member States may provide that in cases where an application has been found to be inadmissible or manifestly unfounded, the Appellate Court is able to decide whether or not to give leave to appeal. Member States shall lay down rules on suspensive effect pending the ruling of the Appellate Court.

The minimum guaranteed deadline for lodging further appeal is not less than 30 working days.

Final provisions

The proposal claims for anti-discriminating treatment to the applicants for "sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation or country of origin".

Finally, the Commission intends to establish a Contact Committee established by the European Commission with the aim of assisting Member States in the implementation of minimum standards, as a meeting point for all the Member States to go ahead towards the harmonization, avoiding persisting national positions against a common procedure.

The Commission proposes that Member States shall bring into laws, regulations and administrative provisions necessary to comply with the Directive by 31 December 2002 at the latest. Member States shall also lay down the penalties for infringements of the national provisions adopted pursuant to the Directive.

Caritas Europa´s first considerations

Positive aspects: Attempt of formulating minimum standards since there are critical weaknesses in some provisions of Member States’ asylum laws. Especially to be welcomed:

avoiding bureaucratic formalities for applying

some procedural guarantees

granting a three-tier system

requiring well-qualified authorities

providing specific rights for unaccompanied minors

Concerns:

Generally it is to be said that there is too much room for "opting out" (for example opportunity of derogation from suspensive effect in Art 33 para 2 and derogation from procedural guarantees in case of withdrawel or cancellation of refugee status in Art 26 para 3) and too much discretion (for example: Member States to lay down reasonable time-limits in Art 34).

Although it is to be welcomed that the proposal ensures the same treatment regardless of if the application is lodged at the border or within the territory, this provision does not provide legal access to the territory. Since it will be possible to deport asylum seekers to countries considered to be safe before the final decision is taken (Art 33 para 3) it is not expected that today’s practice at "outer borders" (trafficking of persons in need of protection instead presentation at the border) will change.

According to the proposal deportation is possible although no final decision taken in case of "safe third country" (Article 33/3): In case the country considered to be safe in the first decision, in fact is not safe, deportation causes serious risk of refoulement.

The proposal allows Member States to derogate from suspensive effects of appeal against decisions based on the "safe third country" concept or stating the case to be manifestly unfounded (Art 33 para 2). This means: There are no effective guarantees provided in these cases. The suspensive effect principle should not have any derogation. Already in its previous position on the European Commission working paper for revisiting the Dublin Convention, Caritas Europa had put attention in particular on the safe third country concept and the concrete risk of violating the "non-refoulement" obligation. There should be suspensive effect of all appeals and claims.

If an applicant disappears the Member State may discontinue the examination. In case the applicant later is again at disposal "his request may be considered a new application for asylum" (Art 16). The consequence could be very bad since a new application raising no relevant new facts may be dismissed as manifestly unfounded (Art 28 lit f). So it is possible that the merits of the case are never dealt with. It seems to be crucial in these cases to establish a right to CONTINUATION of the procedure.

It seems questionable whether the proposal does foresee sufficient protection of asylum seekers data. As long as data will be transmitted to country of origin - although only for the purpose of examining the application (Art 15) — the asylum seeker as well as his family members in the country of origin can be endangered.

The safe third country notion chosen in the proposal seems to be a compromise of existing definitions in the various Member States. This notion (a rebuttable presumption) does not secure sufficient protection from the danger of being readmitted to an unsafe country (Art 21, 22 and Annex I). It lays the burden of proof onto the shoulders of the applicant. It would be better to establish the principle of an "ex officio" examination. Generally Caritas (in accordance with UNHCR and other NGOs) demands to apply the safe third country only on the basis of a written guarantee of this country to ensure access to a fair asylum procedure after readmission to the concrete individual. In any case this notion should be formulated future oriented. Lists of "safe third countries" are allowed under the proposal: Speaking with UNHCR: ´the question is whether that country is "safe" for this asylum seeker, and is not a "generic" question which can be answered for any asylum seeker in any circumstances (i.e. on the basis of a "safe third country list")ª. In case of family ties, social or cultural background the safe third country notion should not be applied.

Similar concerns are to be raised with regard to the safe country of origin concept (Art 30, 31 and Annex II): Rebuttable presumption and burden of proof on the asylum seeker.

The proposal foresees an extremely broad definition of manifestly unfounded cases (Art 28). The whole provision needs reconsideration, especially art. 28 littera a) false information with respect to identity or nationality;

b) no sufficient convincing information to determine identity or nationality;

c) application facing deportation;

e) safe country of origin;

f) new application without relevant new facts.

Although Commission’s intention understandable there are only two ways open: either remove these lines or to guarantee very strong procedural safeguards in case of application of these provisions.

The proposal leaves open whether asylum seekers shall receive a transcript of the personal interview in admissibility and accelerated procedure (Article 8/6). Do not give the opportunity to consult the transcript makes correction of misunderstanding or wrong minutes nearly impossible.

There seem to be a contradiction in the Commission’s text: Art 8 demands the opportunity to personal interview — at the same time some provisions mention quoting "if no personal interview … has been conducted" (Article 23/3 and 29/3). Need of clarification.

The proposal is not clear on whether Member States are allowed to restrict opportunity of presence of legal advisers in admissibility procedure (Art 9/3). Need of clarification.

The proposal says that Member States may provide the applicant with a document (Art 23/5). It is hardly to be understood why there is no obligation to do so.

The proposal foresees — in specific cases — an automatic review (Art 36) but does not establish any minimum time limits for the applicant to provide reasons of appeal. Since some Member States had imposed much too short time limits in the past, this should be changed.

In the proposal with regard to the first instance procedure there is no right to a legal adviser or counsellor foreseen (Art 9 para 4). Since especially the first instance (interview, presentation of facts etc.) is a critical stage this would be necessary.

To be further examined with experts:

Art 11 foresees detention of asylum seekers in many cases. Especially para 3 seems to be too general. It could be doubted that there is a correct relation between the aim and detention itself; consider ExCom 44

Art 13 leaves it open whether there is information that first decisions are based on but that are not accessible for the reviewing body.

This Briefing Paper was elaborated aiming at giving a first overview on the Commission proposal and first ideas for related considerations. Readers are invited to share their opinion with us to enable us to update this briefing.

Brussels, 17 January 2000

Bruno Kapfer

Rossella Roberto