Summary Comments from the European Council on Refugees and Exiles
on
the
Proposal
on minimum standards on procedures in Member States for granting and
withdrawing refugee status
The European Council on Refugees & Exiles (ECRE) welcomes this opportunity to convey not just to the European Commission, but particularly to the Governments of the Member States of the European Union, the views of non-governmental organisations (NGOs) and lawyers assisting asylum applicants in the 15 European Union States on the Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (henceforth ‘the Proposal’) which has been prepared by the Commission.
ECRE has published a detailed commentary on the Commission proposal.[1] The purpose of this summary note is to briefly highlight ECRE’s main concerns regarding the Commission proposal.
Whilst we recognise that Member States have embarked on setting minimum standards rather than establishing a common procedure, it is nevertheless necessary that if Member States are to continue to operate a mechanism for determining state responsibility for examining asylum applications and if they are serious about seeking to limit secondary movements of asylum applicants within the Union, a significant degree of approximation with regard to asylum procedures is required.[2] This in turn requires a Directive which does not contain significant scope for derogation nor wide margins of discretion.
ECRE reminds EU States of their responsibility in showing global leadership on human rights issues. It is hoped that Member States will not enter these legislative negotiations with the intention of ensuring that the Directive will not require any changes to their national asylum procedures. The fear of non-governmental organisations and lawyers is that Member States will set standards that reflect worst practice in the Union and result in standard-lowering. We urge the EU Member States to demonstrate global leadership by setting standards, based on justice, human rights and humanitarian values, which are worthy of the European Union and reflect the best practice in our States.
ECRE welcomes a number of the provisions contained in the Proposal, particularly with regard to the regular procedure, which are in line with standards promoted by both the United Nations High Commissioner for Refugees (UNHCR) and non-governmental organisations working in this sector. We trust that Member States will retain these provisions. However, we regret that the Proposal effectively leaves in place all the features of today’s national asylum procedures which have been most sharply criticised by NGOs and lawyers assisting asylum applicants. These include most notably detention of asylum applicants and processing of asylum applications at borders, sea and air ports; and the operation of accelerated procedures with insufficient legal and procedural safeguards to prevent refoulement. It is the experience of the overwhelming majority of NGOs and lawyers that every aspect of the procedure is qualitatively worse, to the point of unjust, when it is accelerated. The non-governmental sector and lawyers are opposed to the use of accelerated procedures which compromise essential legal and procedural safeguards for the protection of refugees. It is our opinion that all asylum applicants should have the same basic procedural rights during the asylum procedure.
In the process of negotiation on this Proposal, we assume that EU Member States will seek to ensure that none of the provisions in this Directive may result in a breach of their international legal obligations. Therefore this summary paper focuses on ECRE’s main concerns and on those areas which we believe currently require amendment in order to ensure that the legislation is in conformity with the relevant international treaties – particularly the UN Convention relating to the Status of Refugees (Geneva Convention) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
In this regard, ECRE’s main concerns regarding the Proposal may be summarised as follows:
(1) The lack of a suspensive right of appeal following a negative decision taken in admissibility or accelerated procedures may violate Article 33 of the Geneva Convention, and Article 3 together with Article 13 of the ECHR.
(2) The grounds for detention – as presented in the Proposal – may breach Article 5 of the ECHR unless further interpretative guidance is provided.
(3) The criteria for determining a ‘safe third country’ are not sufficient to safeguard against a breach of Article 33 of the Geneva Convention and Article 3 of ECHR.
(4) The lack of a right to legal assistance during the admissibility, accelerated and regular procedures severely compromises any procedural safeguards contained in the Proposal and when combined with a lack of a suspensive right of appeal following the admissibility and accelerated procedures heightens the risk of a violation of Article 33 of the Geneva Convention and Article 3 of the ECHR.
(5) The criteria for defining applications as manifestly unfounded are not restricted to the merits of the application with the result that meritorious applications may be deprived of essential procedural safeguards risking a violation of Article 33 of the Geneva Convention. Accelerated procedures severely undermine any principles of fairness and justice.
For more information on ECRE’s position on asylum procedures, we would refer the reader to ECRE’s comprehensive Guidelines on Fair and Efficient Procedures for Determining Refugee Status (1999). With regard to the issue of detention of asylum applicants, we would refer the reader to the ECRE Position on Detention (1996).[3]
ECRE’S
MAIN CONCERNS
Suspensive right of appeal
ECRE is deeply concerned that the Proposal does not guarantee a suspensive right of appeal against a negative decision taken in the admissibility or accelerated procedures or in cases where there are national security or public order considerations.
ECRE welcomes
the provision that all applicants for asylum have the right to appeal, on both
facts and points of law, against any decision taken on the admissibility or the
substance of their application for asylum.[4] However, whilst Article 33 (1) provides
the guarantee of a suspensive right of appeal against a negative decision, Article 33(2) allows
States to derogate from this principle and to deport appellants to their
country of origin, notwithstanding their right to appeal under Article 32, when
the appeal is against a negative decision taken in the admissibility procedure,
the accelerated procedure, or in cases where there are grounds of national
security or public order. In other
words, the right to a suspensive right of appeal is only guaranteed against negative
decisions taken in a regular procedure.
For a refugee,
the right to appeal from his/her country of origin may be tantamount to a death
sentence. It is ECRE’s
opinion that derogation under this Article may place Member States in violation
of Article 33 of the Geneva Convention; Article 3 taken together with Article
13 of the ECHR; and Article 3 of the UN Convention against Torture. Member States may also violate the
Charter of Fundamental Rights of the European Union. Furthermore, it is not in accordance with UNHCR ExCom
Conclusion No.8.[5]
The risk of removal contrary to
Article 3 of the ECHR and Article 33 of the Geneva Convention must be limited
by providing the asylum applicant with an effective legal remedy. All applicants for asylum should have
the right to appeal, whilst remaining on the territory throughout the appeal
procedure, against any decision taken on the admissibility or the substance of
their application. ECRE urges the
deletion of Article 33(2).
Right to legal assistance
ECRE is gravely concerned that the Proposal does not guarantee a right to legal advice during the admissibility, regular or accelerated procedures.
Whilst ECRE welcomes the guarantee that all applicants for asylum must have the opportunity to contact organisations or persons providing legal assistance at all stages of the procedure, ECRE is deeply concerned that the right to legal advice in the Proposal is restricted to the appeal stage. Furthermore, given the fact that a suspensive right of appeal is not guaranteed following the admissibility and accelerated procedures[6], effectively the right to legal assistance may be restricted only to those who appeal following a negative decision taken in the regular procedure.
The provision of qualified and independent legal advice is essential to the functioning of a fair asylum procedure. As a minimum standard, each asylum applicant should be provided with free independent and qualified legal advice and representation throughout all stages of the asylum procedure, including any appeals, where the financial situation of the applicant so requires. Furthermore, each asylum applicant should immediately be informed of the right to legal advice and representation, and provided with the details of qualified organisations and legal advisors providing such a service.
The right – as provided for in the current Proposal – to “have the opportunity to contact in an effective manner organisations or persons that provide legal assistance at all stages of the procedure” will be an illusory and completely ineffective right if, for example, the asylum applicant does not know who to contact; there is no free legal assistance available; and the applicant does not have the financial resources to otherwise pay for legal advice.
The right to legal advice should be extended to encompass admissibility, regular and accelerated procedures. Guaranteed access to qualified and independent legal advice at the outset will greatly enhance the quality of the examination and decision-making in the first instance, thereby clarifying whether or not there are grounds to appeal and, as a consequence, reduce the length and expense of the system as a whole. ECRE would urge that the following new provision be added:
“Member States shall ensure
that all applicants for asylum have the right to qualified independent legal
advice and representation at all stages of the procedure. This assistance must be given free of
charge if the applicant has no adequate means to pay for it himself or herself.”
Detention
ECRE is concerned that the Directive does not provide sufficient guarantees to prevent the arbitrary detention of asylum applicants.
The Proposal immediately sets out the grounds upon which an asylum applicant may be detained. ECRE believes that, as a general rule, asylum seekers should not be detained. Asylum applicants should only be detained, as a last resort, in exceptional cases and where non-custodial measures have proven on individual grounds not to achieve the stated, lawful and legitimate purpose. ECRE urges Member States to consider the full range of alternative, non-custodial measures available to them, which are both more humane and more effective. Asylum applicants may have already suffered imprisonment and torture in the country from which they have fled. Therefore, the consequences of detention may be particularly serious, causing severe emotional and psychological stress and may amount to inhuman and degrading treatment. It is, therefore, ECRE’s opinion that asylum applicants should only be detained exceptionally and consequently, the grounds for detention should be narrowly defined.
It is ECRE’s opinion that detention should only be resorted to on the following grounds:
a) as a measure of last resort if there is a repeated and unjustified failure to comply with reporting requirements imposed by the authorities; or
b) if, following a fair and efficient refugee determination procedure, there is a failure by a rejected asylum seeker to comply with an order to leave the territory. This is also on condition that there has been a possibility to appeal against the order to leave the territory and that there are no humanitarian grounds to grant a permit to stay.
The decision to detain should always be based on the individual circumstances and personal history of the asylum seeker. This standard is also required by the UN Working Group on Arbitrary Detention.[7] ECRE strongly recommends that such a provision be inserted in the Proposal as there is evidence to suggest that, to the contrary, authorities may detain asylum applicants as a general deterrent.[8]
The grounds for detention proposed by the Proposal are not in accordance with the grounds set out by ECRE above. As stated in the Explanatory Memorandum to the Proposal, they are drawn from UNHCR ExCom Conclusion 44 (XXXVII). However, this ExCom Conclusion has been further clarified by UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers in recognition of the fact that the grounds should be interpreted restrictively. ECRE believes that it is absolutely critical that, if any of these grounds are retained in the Directive, either the text itself or the Explanatory Memorandum must provide clear guidance for interpretation based on the UNHCR Guidelines, otherwise EU Member States risk violating Article 5 of the ECHR which requires that laws on detention be formulated with “sufficient precision” so that one is clear in what circumstances one may be detained. There must be adequate legal protection in domestic law against arbitrary interference by the authorities.
Safe third country criteria
ECRE is profoundly concerned that the
criteria provided in Annex I (A) (1) do not require Member States to ensure
that the asylum applicant will have access to the asylum procedure of the third
state, nor to ensure that those persons who are in fact refugees under the
Geneva Convention will be recognised as such and benefit from the rights of
that Convention.
ECRE welcomes
the provisions set out in I (A) (1) of Annex I but they would benefit from two
amendments. It is evident
that a country cannot be considered to be safe for an asylum applicant if s/he
will not be given access to the asylum procedure. This may occur, for example, where the country implements
formal requirements for access such as time limits or possession of particular
documentation. Neither Annex
I I(A)(1) nor Article 22 contains a provision which would safeguard an asylum
applicant against return to a country where s/he would in fact not have access
to the asylum procedure.[9] ECRE urges that Annex I I (A) (1) add
the following principle:
“The filing of an application for asylum is not subject to any prior formality and applicants have an effective opportunity to lodge an asylum application.”
Furthermore,
with regard to Article 22(b), it is not sufficient, as is currently stated,
that there are simply “grounds for considering” that the applicant
will be re-admitted to the territory.
In order, to ensure against refoulement and to avoid the phenomena of
‘refugees in orbit’, it is necessary that the third state give its
explicit consent to (re)admit the asylum applicant. For this reason, we propose the following amendment to
Article 22(b):
“the third state has given its
explicit consent to (re-)admit the asylum applicant to its territory and
provide access to the refugee determination procedure.”
ECRE is
particularly concerned by Annex I (I) (A) (2) which allows Member States to
consider countries that have not ratified the Geneva Convention as safe third
countries. This is not
acceptable. The reason why a third
country must effectively implement the provisions of the Geneva Convention in
order to be considered safe is not just to ensure that the person will not be
refouled from that country, but also to ensure that persons who are in fact
Convention refugees are accorded all refugee rights (not just protection
according to Article 33) under the Convention. Annex I (I) (A) (2) would mean that EU Member States would
be complicit in the denial of internationally guaranteed rights to persons who
are in fact refugees since return – while not resulting in refoulement
– could result in the denial to refugees of rights guaranteed to them
under the Refugee Convention. For
a third country to be considered safe, as a minimum, there must be evidence
that in practice the third state to which the person would be sent poses no
risk of either failing to properly recognise refugee status, or failing to
accord all refugee
rights to persons who are in fact Convention refugees. The OAU Convention, the Cartagena
Declaration and co-operation with UNHCR do not guarantee these rights.
ECRE strongly recommends the deletion of Annex I(I)(A)(2).
Even where the
requirements of Annex 1(I)(A)(1) and (I)(B) together with Article 22 are
fulfilled, every effort should be made to take into account any reason why the
asylum seeker may have requested asylum in the receiving state in accordance
with paragraph (h)(i), (ii), (iii) of ExCom Conclusion No.15 (XXX). Member States should consider assuming
responsibility for the asylum application where:
(a)
the
applicant has close family ties in and/or substantial cultural ties with the
country;
(b)
the
applicant has been in transit in the third country, with which s/he has no
links or contacts, for a limited period of time, and for the sole purpose of
reaching his/her destination;
(c)
the
applicant is in poor physical or psychological health, or for other health
reasons.
ECRE would urge the inclusion of such a
provision. We draw attention to the fact that the
previously agreed EU Resolution on a harmonised approach to questions
concerning host third countries included at paragraph 1(e) that “Any
Member State retains the right, for humanitarian reasons, not to remove the
asylum applicant to a host third country.”
Accelerated
procedures
ECRE is
deeply concerned that the minimum standards set out in the Proposal for
accelerated procedures do not guarantee the asylum applicant any time to
prepare the asylum application, do not guarantee him/her the right to consult
the transcript of the personal interview or make comments on it, do not
guarantee a right to legal advice and do not guarantee a suspensive right of
appeal.
ECRE is opposed
to the use of accelerated procedures that compromise necessary legal and
procedural safeguards for the protection of refugees. The only purpose of an asylum procedure is to establish
whether an applicant is in need of protection or not. It is, therefore, absurd to operate a procedure whereby the
decision that an application is ‘manifestly unfounded’ is taken at
the outset of the process rather than as a result of the procedure. Indeed, Article 27 of the Proposal only
requires ‘suspicion’ that the application is manifestly
unfounded. It is all the more
grave where the consequent procedure, with its emphasis on speed, is
characterised by a critical deficiency of legal and procedural safeguards with
the result that it may render ‘unsafe’ first instance
decisions. This means, at worst,
that refugees may be refouled to their country of origin to face persecution
and death. ECRE is deeply
concerned that this Proposal, whilst permitting Member States to retain or
introduce accelerated procedures, does not provide all the essential minimum
legal and procedural safeguards to ensure that no refugee is returned to face
persecution. Whilst we welcome the
right to a personal interview, the right to the services of an interpreter and
the right to contact organisations providing legal advice, the Proposal
fails to guarantee three further essential rights. If States persist in the use of accelerated procedures,
minimum guarantees from which there can be no derogation must include:
- right to free qualified and independent legal advice (see above and Article 9(4) of the Proposal);
- time limits which guarantee a reasonable amount of time within which the asylum applicant can adequately prepare the asylum application and contact organisations providing legal advice;
- a suspensive right of appeal to an independent appellate body on both the merits and the legality of the decision taken by the determining authority (see above and Article 33(2)(b) of the Proposal).
The Proposal as
currently drafted fails to guarantee these minimum standards in contradiction
with paragraph 5 of the Preamble.
This should be rectified.
Manifestly
unfounded applications
ECRE is
concerned that the definition of ‘manifestly unfounded’
applications in the Proposal does not relate to the merits of the
application. It is the opinion of
ECRE that an application can only correctly be considered ‘manifestly
unfounded’ if the application is manifestly or obviously not related to
the criteria for the granting of refugee status contained in the Geneva
Convention nor to any other criteria justifying the granting of protection,
including Article 3 of the ECHR.
The fact that a
person may have destroyed or disposed of his/her identity or travel document;
or the fact that the person has submitted his/her application prior to
deportation; or the fact that the applicant is from a so-called ‘safe
country of origin’ does not mean that the person is not a refugee or person in
need of protection.
Asylum seekers
are often forced to resort to illegal channels and false documentation in order
to flee and gain access to the territory in which they seek international
protection. They are often
instructed by smugglers to return, destroy or dispose of false
documentation. This does not mean
that they are not refugees or that their applications are manifestly unfounded.
The notion of
‘safe country of origin’ does not relate to an individual
assessment of the asylum applicant’s status and as such it is wholly
unacceptable to maintain the concept as part of a procedure which is based upon
the recognition of individual rights.
Article 30(1) of the Proposal provides that Member States may consider a
country as a safe country of origin only in accordance with the principles set
out in Annex II. However, there is
a fundamental flaw in the requirements set out in Annex II which is inherent in
the concept of ‘safe countries of origin’. It requires that the country generally observes
international human rights law and generally provides effective remedies. However, refugee law is not about what
happens generally, it is about the protection needs of individuals. A country may well generally observe
international human rights law whilst persecuting a particular individual or
group on grounds of their race, religion, political opinion, nationality or
social group.
ECRE
acknowledges that Article 31 provides that, notwithstanding Annex II, a country
can only be considered as safe if there are no grounds for considering the
country not to be a safe country of origin in his particular
circumstances. However, it is
clear that this, in practice, cannot be demonstrated before the decision is
taken to process the application in the accelerated procedure. In practice, Article 31, which will
require a higher standard of proof, can only be invoked during the accelerated
procedure. However, the applicant
may have no time to provide evidence to rebut the presumption that the country
of origin is safe in his/her particular circumstances[10]
and the applicant may have no right to legal assistance. Article 33 does not guarantee the
applicant a right to remain on the territory pending an appeal. The result is that Member States risk
violating Article 33 of the Geneva Convention and Article 3 of the ECHR.
To resort, to a
notion of ‘safe country of origin’ which effectively excludes
certain nationals from having their claim for asylum properly and thoroughly
examined, in practice, may amount to a geographical reservation to Article
1(A)(2) of the Geneva Convention which is prohibited by Article 42 of the same
Convention.
The concept of ‘safe country of
origin’ should be abandoned.
ECRE urges the deletion of Article 28(1)(e), Articles 30 and 31, and
Annex II.
18 April 2001