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 Intervention
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).
SPECIFIC
COMMENTS
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