Comments from the European Council on Refugees and Exiles
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.
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. 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 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 and unfair, 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. 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 breach their international legal obligations. Therefore this paper, which we hope will be considered during negotiations, focuses 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).
Due to the fact that the Commission and Member States are now engaged in a systematic and thorough study and negotiation of the articles of the Proposal, this paper takes the same article by article approach for ease of reference.
It is necessary that Article 2 defines the term ‘competent authorities’ as used in the Proposal. Whilst it is ECRE’s position that only trained officials of the determining authority should undertake measures of examination and decisions on asylum applications, the Proposal as currently drafted appears to permit border officials, police and other officials not accountable to the determining authority to carry out, for example, interviews relating to the asylum application. ECRE is opposed to this practice.
Article 2(b) and Article 3(3)
The Commission states in the explanatory memorandum that it is “sensible at this stage to restrict the scope of the proposal to claims under the Geneva Convention” and thereby not apply the Proposal to procedures which might result in the granting of a complementary form of protection. To the contrary, ECRE believes that it is neither sensible nor logical to restrict the scope of the instrument in this way. The reason given for the position of the Commission is that a considerable amount of work still needs to be done on defining cases covered by complementary forms of protection.
ECRE would like to make a couple of points in this regard:
(1) ECRE believes that the EU governments must take a holistic approach to the task of adopting legislation under Article 63 (1) of the Amsterdam Treaty in order to ensure that the legal instruments are both complementary and coherent. This would require an approach whereby the draft texts are considered in parallel prior to adoption. ECRE has long maintained that the European Union, in setting the timetable contained in the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice (December 1998), should have prioritised agreement on who qualifies for protection in the Union i.e. the legal instruments on refugee status and complementary forms of protection pursuant to Article 63 (1). However, we note that the Commission intends to table its Proposals on qualification for refugee status and complementary forms of protection in summer 2001. This, in our opinion, allows for consideration of the Proposals in parallel.
(2) Furthermore, we would like to underline that work does not only need to be undertaken on defining the criteria for qualification for complementary forms of protection but that considerable work also needs to be done to ensure that all Member States agree on an interpretation of the refugee definition under the Geneva Convention which is in line with UNHCR guidance, and international human rights law. We would draw attention to the fact that the definition of those who fall within the terms of Article 3 ECHR and Article 3 of the UN Convention against Torture, who should be included within the criteria for a complementary form of protection, has already been well developed by the European Court of Human Rights and UN Committee against Torture respectively.
ECRE believes that it is both in the interests of Member States and asylum applicants that the same asylum procedure, with the same minimum guarantees, is able to determine not just whether an applicant qualifies for protection under the Geneva Convention but also whether s/he may qualify for protection under another national or international legal provision. It is common sense that this Directive should apply to any procedure which may result in the granting of either status provided for by either the Directive on qualification for refugee status or the Directive on complementary forms of protection.
ECRE welcomes the guarantees relating to access to the procedure set out in Article 4.
In order to effectively ensure the principle of non-refoulement, as stated in the explanatory memorandum; and in accordance with Article 2(c) which defines an ‘applicant for asylum’ as “a person who has made and application for asylum in respect of which a final decision [our italics] has not yet been taken”, Article 5 needs to be amended to ensure the right to remain until a final decision has been taken on the asylum application. ECRE proposes the following amendment:
“Applicants for asylum shall be allowed to remain on the territory of the Member State in which the application for asylum has been made or is being examined for as long as a final decision has not been taken.”
ECRE stresses, however, that it is inherently undesirable to detain persons at the border as in practice this undermines the fair functioning of the asylum procedure insofar as it undermines procedural safeguards such as access to legal assistance.
ECRE welcomes this provision stating that Member States must ensure that decisions on applications for asylum are taken individually, objectively and impartially. However, we would like to take this opportunity to note that in circumstances where a whole group of persons is exposed to persecution, the individual examination may be limited to determining whether the individual belongs to the group in question. We would welcome a note to this effect in the explanatory memorandum or in the text itself.
ECRE welcomes the guarantees to information, the services of an interpreter, access to UNHCR and other organisations, and fully reasoned written negative decisions which are provided for in this Article, with the following qualification:
The role of interpreters is critical in the asylum procedure. It is in the interests of both state authorities and asylum applicants that interpreters are used unless the asylum seeker speaks fluently a language which is also spoken fluently by the interviewing officer and the legal representative. It is also crucial that the interpreter is professionally qualified, trained and impartial and guided by a code of conduct. The reason for this is simple. The misinterpretation of an asylum applicant due to incompetence or partiality can result in an incorrect factual assessment and incorrect decision resulting in refoulement; or a considerable waste of human and financial resources where the facts are only rectified on appeal. Investment in qualified interpreters is not only a question of fairness, but leads to a better assessment of the facts from the very beginning.
ECRE stresses that the services of a qualified and impartial interpreter should be available at all phases of the asylum procedure, including initial interviews with border officials and persons conducting interviews who according to Article 8(1) of the explanatory memorandum do not necessarily have to work for the determining authority.
ECRE would recommend an amplification of the explanatory memorandum to this effect, and the following amendment to Article 7 (b):
“They must be given the services of a qualified and impartial interpreter, whenever necessary, when communicating with any official responsible for a particular measure of examination and the determining authorities regarding their asylum application. These services must be paid for out of public funds.”
ECRE welcomes the guarantee of a personal interview on the substance of the asylum application to all asylum applicants, and the procedural guarantees enumerated in subparagraphs (1) to (7).
ECRE would suggest that the guarantee of a personal interview is worded in the text of the proposal, rather than in the explanatory memorandum, as a right which may be waived by the applicant so as to clarify later provisions relating to the personal interview under Article 23 and Article 29. ECRE would propose the following amendment:
“Before a decision is taken by the determining authority, the applicant for asylum has a right to a personal interview on the admissibility of the application, where his or her application is subject to the admissibility procedure, and a right to a personal interview on the substance of the application for asylum, during the regular and accelerated procedures, with an official qualified under national law.”
The explanatory memorandum states that the official conducting the personal interview “does not have to work for the determining authority but must have received training for this purpose in accordance with Articles 14 (1)(b) and (d) and where necessary (c).” It is ECRE’s view that it is preferable that personal interviews are conducted by an official of the determining authority. This, we believe, would result in improved decision-making.
Article 14(d) only requires “basic training with respect to international refugee law, national asylum law, relevant international human rights law, .. and the assessment of applications for asylum from persons with special needs, including accompanied minors.” We welcome the areas of training which are covered by the Proposal, however, we consider that “basic training” is not sufficient for the responsibility that such officials hold. We would recommend that all officials involved in interviewing and decision-making receive continuing specialist training in these areas and, in addition, guidance on sensitive and empathetic interview techniques and working with interpreters. This would bring the Directive into line with Council of Europe Recommendation No. R(98) 15 on the training of officials who first come into contact with asylum-seekers, in particular at border points. This is discussed further and a suggested amendment is proposed under Article 14(d) – see below.
It is not clear in the explanatory memorandum why the right to consult the transcript of the personal interview on the substance of the asylum application is restricted to applications examined in the regular procedure; and not also to applications processed in accelerated procedures. We would urge the following amendment:
“Each applicant for asylum must be given an opportunity, within a reasonable time limit, to consult the transcript of a personal interview on the substance of his application for asylum and to make comments on it”.
Article 9(1) and 9(4)
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, 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.
Article 9(4) of the Proposal 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.”
Consequently, Article 7(a) would ensure that applicants are informed of the above right and the existing Article 9(1) would ensure that they have the opportunity to contact a lawyer or organisation providing free legal assistance.
Article 9(2) provides that in “closed areas designated for the examination of applications for asylum, Member States may regulate the access of organisations providing legal assistance, provided that such rules … are objectively necessary to ensure an efficient examination in accordance with the national rules pertaining to the procedure in these areas and do not render access impossible.” The explanatory memorandum further states that “Member States can choose to set rules for the timing and the duration of access to clients. The measures taken by Member States should be strictly necessary for the purposes described in this paragraph and should never result in the effective annulment of the right to have access to legal assistance.”
ECRE is concerned that whilst such regulation might not result in the effective annulment of the right, it may severely curtail the exercise of the right. ECRE would recommend that the explanatory memorandum be amended to state that the measures taken:
“should never result in the effective annulment or severe curtailment of the right to have access to legal assistance.”
Whilst ECRE welcomes the provision of a right for the applicant’s legal adviser or counsellor to be present during the personal interview in the regular procedure, we would urge Member States to extend this right in the case of applications considered in admissibility and accelerated procedures. This is particularly necessary if States retain the grounds – which do not all relate to the merits of the asylum application - enumerated under Article 28 for channelling applications into an accelerated procedure. As a result, the issues which are at stake in the accelerated procedure, may be as complicated or more complicated than applications considered in the regular procedure. Similarly, the recent European Court of Human Rights decision in T.I. v. U.K. demonstrates that the issues concerned in admissibility decisions are also complicated.  The European Committee for the Prevention of Torture stated in its Report to the German Government in 1998 that the “right of access to a lawyer should apply throughout the whole airport procedure, including the first hearing with the Bundesamt. Moreover, the right of access to a lawyer should include both the right to speak with a lawyer in private and to have him/her present during interviews with all the authorities concerned.” ECRE urges Member States not to leave the right to have legal counsel present during the interview to the discretion of each Member State. ECRE would recommend the following amendment:
“The applicant’s legal adviser or counsellor shall have the opportunity to be present during the personal interview on the substance of the application for asylum.”
ECRE welcomes the provision of a legal advisor for unaccompanied children.
Article 10(1) (b)
It is ECRE’s opinion that applications from unaccompanied minors should not be the subject of admissibility procedures unless on grounds of family reunification which are in the ‘best interests’ of the child. We would suggest that an exception to this effect is made either at Article 10 or at Article 18.
Furthermore, it is ECRE’s position that unaccompanied children should be given access to the territory and they should never be detained. This includes detention at the border. We would suggest that either Article 10 or Article 11 be amended to this effect.
Article 10 (3)(b)
Assessments to determine the age of young asylum applicants are not always precise. In determining age, asylum seekers should be given the benefit of the doubt. Where an age assessment is considered necessary, this should be undertaken with the consent of the asylum seeker. The need for consent is not explicitly provided for in this Article but only implicit in the statement that young asylum applicants be informed of the consequences of refusal to undergo examination. ECRE would urge that this is made explicit.
Article 11(1) of 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. 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.
The grounds for detention proposed by the draft Directive are not in accordance with the grounds set out by ECRE above. As stated in the explanatory memorandum, 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.
For example, Article 11(1)(a) permits detention to ascertain or verify the identity or nationality of an asylum applicant. Without further interpretation, this ground could be invoked to detain the majority of asylum applicants in the European Union. Furthermore, given Article 11(1)(b) allows for detention “to determine his identity or nationality when he has destroyed or disposed of this travel and/or identity documents or used fraudulent documents upon arrival in the Member State in order to mislead the authorities”, it may be deduced that Article 11(1)(a) may, therefore, be invoked to detain in cases where the asylum applicant does possess identity or travel documents, or where their absence is not due to an intention to mislead the authorities and the asylum applicant is co-operating fully with the authorities. We assume that this was never the intention of the Commission in drafting this Article. Firstly, it should be clear that the identity or nationality of the person must be undetermined or in dispute. Furthermore, what must be demonstrated is that there has been an unjustifiable failure to co-operate with the process of verification. ECRE urges the deletion of Article 11(1)(a) which is superfluous to Article 11(1)(b) and so vague that it may breach Article 5 of the ECHR.
The reference in Article 11(1)(b), as mentioned above, to ‘misleading the authorities’ needs to be clarified. 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. For reasons which ECRE has often highlighted, it may be impossible for an asylum seeker to approach the authorities in his or her country of origin in order to obtain the necessary travel documents. Measures such as carrier sanctions and visa restrictions increasingly force genuine asylum seekers to enter illegally. Genuine asylum seekers may also be afraid to reveal their identity to border guards. The grounds for detention must therefore take account of the special situation of asylum seekers. The UNHCR Guidelines make clear that asylum seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained. Again, what must be demonstrated is an unjustifiable refusal to co-operate with the process of verification. ECRE recommends that this interpretative guidance be provided in the Proposal.
Article 11(1)(c) allows detention in order to “determine the elements on which his application for asylum is based which in other circumstances could be lost”. This too – without further interpretation - could be used to detain the majority of asylum applicants in the European Union. UNHCR has made clear that such a clause cannot be used to justify detention for the entire status determination procedure or for an unlimited period of time. The Directive should provide further guidance.
Article 11(1)(d) allows the detention of all asylum applicants, who may not legally enter the territory, at the border for the duration of the asylum procedure. This, we believe, is in breach of Article 5 of the ECHR and Article 31 of the Geneva Convention insofar as it allows for the detention of genuine asylum applicants for the duration of the asylum procedure in the absence of any ground to believe that the applicant is effecting an unlawful entry for other purposes. Article 11(1)(d) should, therefore, be deleted.
We would urge the EU to import the standards set by the UN Working Group on Arbitrary Detention and the UNHCR Guidelines into the Directive in order to avoid a breach of Article 5 of the ECHR.
Finally, separated children should not be held in detention and ECRE recommends that the Proposal should include an exemption to that end.
ECRE welcomes Article 11(2) which provides for regular review of the detention order. ECRE recommends that the Proposal ensure that the reviewing body is either a judicial or other competent body independent of the detaining authorities. This is required by Article 5 of the ECHR. ECRE proposes the following amendment:
Member States shall provide by law for regular review by a judicial or other competent body independent of the detaining authorities of the order for detention pursuant to paragraph 1 and relevant international human rights law.
Reviews should consider not only the formal legal basis of the decision to detain but also the substantive grounds for the detention.
Articles 13(1)(b) and 13(2)
This Article deals with the information upon which an assessment can be made relating to countries of origin and third countries. However, it does not provide that this information should be subject to public scrutiny. Indeed, Article 13(2) does not even ensure the right of review bodies to access all information upon which an assessment is made. It is ECRE’s position that the material upon which an assessment of a country situation is based should be subject to public scrutiny. We recommend that an amendment be made to this effect.
ECRE welcomes the guarantee of adequate training for all officials in contact with asylum applicants with the following qualification.
The Proposal under consideration provides that personnel interviewing applicants for asylum must have received the necessary basic training for this purpose without any further indication of what might be considered “necessary”. More than a basic understanding is necessary. In this regard, it should be noted that the Council of Europe Recommendation No. R.(98) 15 (on the training of officials who first come into contact with asylum-seekers, in particular at border points) required officials to have a detailed and thorough knowledge of the relevant areas of law, the situation in countries of origin and interviewing skills, including working with interpreters.
Obviously, the law is not static – it is continuously being developed by legislation and decisions of the Courts. Consequently, anyone working with the law must be continually updated. The following amendment would reflect the need for both specialist and continuing training:
“Personnel interviewing applicants for asylum receive the necessary initial and continuing specialist training with respect to interviewing techniques, international refugee law, national asylum law, relevant international human rights law, EU legislation and country of origin information.”
ECRE welcomes this provision requiring that personnel interviewing persons in a particularly vulnerable position and (unaccompanied) minors receive training with regard to the special needs of these persons. ECRE would further welcome the extension of this provision to personnel likely to come into contact with such vulnerable persons at the point where they may make an application for asylum, such as border officials and immigration officers.
A similar amendment to that stated under 14 (1) (b) would need to be made to Article 14(1)(d) to reflect the need for continuing and thorough training:
“Personnel examining applications for asylum receive the necessary initial and continuing specialist training with respect to international refugee law, national asylum law, relevant international human rights law, EU legislation, country of origin information and the assessment of applications for asylum from persons with special needs, including unaccompanied minors.”
As mentioned above, those involved in taking decisions on detention should also receive thorough and continuing training. Furthermore, it is necessary to add a reference to international refugee law, as Article 31 of the Geneva Convention is relevant in this regard, and to international standards which are also of relevance:
“Personnel responsible for orders of detention receive the necessary initial and continuing training with respect to international refugee law, national asylum law, relevant international human rights law, EU legislation, international standards and national rules for detention.”
ECRE welcomes the provisions on confidentiality of information contained in the Proposal. For reasons of clarity, ECRE recommends that an explicit reference to UN guidelines concerning computerised data files and EC Directive 95/46 are included in the text of the proposal.
Repeat or new applications
Article 16(3) and Article 28(1)(f)
Where an asylum applicant withdraws the application for asylum and later re-submits the application, the combined effect of these two articles ensures that the application will be dismissed as ‘manifestly unfounded’ when the applicant raises no relevant new facts. This incorrectly presupposes that the initial application was without merit. It is possible that an asylum applicant with a well-founded application may withdraw the application for valid reasons. States would place themselves at risk of a violation of Article 33 of the Geneva Convention and Article 3 of ECHR if such an application could be dismissed as manifestly unfounded if re-submitted. We assume that this was not the intention of the drafters, and, therefore, we would suggest that this is clarified in the explanatory memorandum and in the text of Article 16(3).
If Member States are to insist on retaining admissibility procedures, then ECRE agrees that their scope should be restricted to determining whether the applicant has already received protection in another state and can still avail him/herself of that protection; or whether the asylum application should be examined by another State under the Dublin Convention or its successor legal instrument. ECRE’s concerns relate to the criteria proposed for determining whether a third country is ‘safe’ for the applicant.
Article 21, Article 22 and Annex 1 – safe third country concept
The requirements for designation of a third country as safe are critical in order to ensure that EU Member States do not violate the principle of non-refoulement, and do not breach Article 3 of the ECHR, Article 3 of the UN Convention against Torture or Article 7 of the Covenant on Civil and Political Rights. Two recent cases before the European Court of Human Rights have highlighted the caution with which decisions relating to the safety of a third country need to be taken.
ECRE welcomes the provisions set out in I (A) (1) of Annex 1. However, 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 1 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. ECRE urges that Annex 1 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. 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).
ECRE welcomes Article 22 (c) which provides that a third country may only be considered safe if “there are no grounds for considering that the country is not a safe third country in his particular circumstances”. The explanatory memorandum explains that “it is possible that, although fellow-countrymen of his are in general treated well in that country, the applicant would suffer a different fate given his particular background.” ECRE would recommend that the Commission enlarge on this explanation so as to point out that the treatment referred to does not relate just to the reception of persons but critically the interpretation of Article 1 (A) of the Geneva Convention. Article 22(c) should require an assessment by the determining authority of the indirect risk of refoulement for the asylum applicant. This requires the determining authority to be familiar with the law and practice of the third country with regard to the issues raised the by the asylum seeker’s application.
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.”
Article 23 (1)
ECRE would recommend that a reference is made to Article 8 (1) so as to clarify that the asylum applicant has a right to a personal interview pursuant to Article 8 (1) and this is not at the discretion of the State.
Article 23 (2)
In order to keep the language of the text neutral, ECRE proposes the following alternative wording:
“Member States shall ensure that the determining authority takes a decision on the admissibility of an application for asylum in accordance with Article 20, Article 21 and Article 22 within 25 working days following the personal interview with the applicant.”
Article 23 (5)
Article 23(5) provides that “When implementing a decision based on Article 22, Member States may provide the applicant with a document in the language of the third country informing the authorities of that country that the application has not been examined in substance.” This is good practice, and is already practised by some states and should become a minimum standard for all Member States. This will be vital if, contrary to our recommendation, States do not obtain explicit consent to re-admit asylum applicant to the territory and give access to the procedure. ECRE would recommend the following amendment:
“When implementing a decision based on Article 22, Member States shall provide the applicant with a document in the language of the third country informing the authorities of that country that the application has not been examined in substance.”
The regular procedure
Member States may be able to agree on what is a “reasonable time limit” for the regular procedure. If so, this should be agreed as part of the Proposal otherwise the Directive may result in widely varying time limits from one EU State to another.
ECRE welcomes the provisions in Article 25. However, we wish to point out that it is also the duty of the determining authority to obtain information in support of the application. This is a necessary corollary to Article 13 which provides that such information should be placed at the disposal of the determining authority. An amendment to this effect should be made to Article 25(3).
Article 26 (3)
If there is only one ground, as stated in the explanatory memorandum, for derogation from Articles 7 and 8, this should be explicitly stated in the text of Article 26(3). Otherwise, this provision could be interpreted to arbitrarily deny refugees their rights. ECRE, therefore, proposes the following amendment:
“Member States may derogate from Articles 7 and 8 when the person in question has voluntarily re-established him or herself in the country of origin or residence where persecution was feared.”
The accelerated procedure
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 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 two essential minimum legal and procedural safeguards to ensure that no refugee is returned to face persecution.
If States persist in the use of accelerated procedures, minimum guarantees from which there can be no derogation must include:
- the services of a qualified and impartial interpreter;
- access to UNHCR and/or non-governmental organisations;
- a personal interview with the competent authority;
- right to free qualified and independent legal advice (see Article 9(4));
- 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 Article 33(2)(b).
The Proposal as currently drafted fails to guarantee the last three of these minimum standards in contradiction with paragraph 5 of the Preamble. This should be rectified.
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.
As already explained above in relation to Article 11, 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 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. While the analysis that a country is ‘safe’ is important, it is but one element to be taken into account. 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, 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. (See also comments below relating to Article 30).
Consequently, ECRE, as a minimum, urges the deletion of Article 28(1)(b), (c) and (e) which permit the dismissal of applications as manifestly unfounded in the situations mentioned above.
ECRE welcomes Article 28 (2) which seeks to restrict the grounds for considering applications as manifestly unfounded by excluding cases where there is possibly an internal protection alternative for the applicant and cases where there are serious reasons for considering that the grounds of Article 1(F) of the Geneva Convention may apply with respect to the applicant.
ECRE would recommend that the current Article 28(1) (b), (c) and (e) instead be included under Article 28 (2).
ECRE is deeply concerned with the formulation of time limits in Article 29 which set the maximum deadline within which interviews should be undertaken and decisions should be taken. Article 29 does not set a minimum deadline i.e. Article 29 does not guarantee a reasonable time within which the asylum applicant can adequately prepare the asylum application and obtain background information to put forward in support of their application. This is required by paragraph 205 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. ECRE also notes that whilst under the regular procedure applicants for asylum must be given the opportunity to cooperate with the competent authorities in order to present the relevant facts of this case as completely as possible and with all available evidence (see Article 25), an equivalent right is not extended to the accelerated procedure. In other words, under the accelerated procedure, asylum applicants are not guaranteed any time to prepare and substantiate their application; and they have no right to legal advice under Article 9. Furthermore, the right to have the opportunity to contact organisations providing legal assistance is completely undermined when interviews and decisions legally can be taken in 24 hours. This is wholly unacceptable and in contradiction with paragraph 11 of the Preamble.
ECRE urges the inclusion of a reasonable time limit within which the asylum applicant can adequately prepare his/her asylum application and before which the personal interview should not take place. As mentioned in relation to Article 8(6), we also urge the provision of a reasonable time within which the asylum applicant can consult the transcript of the personal interview and make comments on it.
As mentioned above, ECRE welcomes the guarantee of a personal interview during the accelerated procedure, as provided by Article 8(1), as this is a necessary procedural safeguard to ensure against refoulement. ECRE would recommend that a reference is made to Article 8 (1) so as to clarify that the asylum applicant has a right to a personal interview pursuant to Article 8 (1) and that this is not at the discretion of the State.
In order to keep the language of the text neutral, ECRE proposes the following alternative wording:
“Member States shall ensure that the determining authority takes a decision on whether the application for asylum is manifestly unfounded in accordance with the definitions in Article 28 within 25 working days following the personal interview with the applicant.”
Safe country of origin concept
Article 30, Article 31, Annex II and Article 28(1)(e)
As mentioned above under Article 28, 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 27 together with Article 28(1)(e) provide that Member States may process an application for asylum in an accelerated procedure if they “suspect” that the applicant is from a ‘safe country of origin’.
Article 30(1) 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, as stated in relation to Article 29, 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 and the applicant has no right to legal assistance under Article 9. 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.
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.
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.
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, 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.
International human rights standards support the need for a suspensive right of appeal:
UNHCR ExCom Conclusion No.8 states that “asylum seekers should be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending.”
Recommendation No.R (98) 13 of the Committee of Ministers of the Council of Europe to Member States on the Right of Rejected Asylum Seekers to an Effective Remedy against Decisions on Expulsion in the Context of Article 3 of the ECHR states that “An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. … A remedy before a national authority is considered effective when: (2.4) the execution of the expulsion order is suspended until a decision … is taken.”
A number of decisions by the European Court of Human Rights have stressed the importance of suspension of deportation when an appeal is pending. In the case of Cruz Varas and Others v. Sweden, the Court stated that requests to refrain from deportation “serve the purpose in expulsion (or extradition) cases putting the Contracting States on notice that, (…), irreversible harm may be done to the applicant if he is expelled and, further, that there is good reason to believe that his expulsion may give rise to a breach of Article 3 of the Convention.” 
In the ECHR case Chahal v. the U.K., the European Court stated that in cases where there is a risk of refoulement “the issues concerning national security are immaterial” 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 national security of the expelling State.”
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).
Article 33(3) provides that if the suspensive effect of appeal is denied, the applicant shall have the right to apply to the competent authority for leave to remain on the territory or at the border of the Member State during the appeals procedure. S/he has the right to remain on the territory until a decision is taken on the request, except where the applicant is to be returned to a ‘safe third country’. The explanatory memorandum does not provide any clarification with regard to the grounds upon which deportation may be suspended or not. Secondly, the application to remain on the territory during the appeal is not to a judicial body.
Article 37(d) provides for an accelerated appeal where there are reasonable grounds for regarding the applicant as a danger to the security of the Member State in which he is located. The risk of exposure to serious harm consequent to an exclusion determination demands that a decision on exclusion be taken in accordance with the strictest procedural safeguards in order to minimise the possibility of the applicant being wrongly excluded. ECRE recommends that such cases are not subject to accelerated appeal for this reason.
18 April 2001
 Paragraph 36(b)(iv) of the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice (December 1998). See also paragraph 20 of the Commission Staff Working Paper ‘Revisiting the Dublin Convention’.
 See also ‘Comments from ECRE on the European Commission Working Document ‘Towards Common Standards on Asylum Procedures’’, 27 April 1999
 See, for example, Article 4(3)
 T.I. v. the United Kingdom, Application No. 43844/98, Admissibility Decision, 07 March 2000
 Report on the visit to the United Kingdom on the issue of immigrants and asylum seekers, issued on 16 December 1998 (E/CN.4/1999/63/Add.4)
 ‘Deciding to detain: how discretion to detain asylum seekers is exercised at ports of entry’, Institute of Criminology, University of Cambridge, June 2000
 Such as the decisions of the UN Working Group on Arbitrary Detention, the reports of the European Committee on the Prevention of Torture (CPT) and the UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment 1988
 Jabari v. Turkey, Appl. No. 40035/98, European Court of Human Rights, 11 July 2000; T.I. v. U.K. Appl. No. 43844/98, Admissibility Decision, European Court of Human Rights, 7 March 2000
 Jabari v. Turkey, as above
 T.I. v. U.K., Appl. No. 43844/98, Admissibility Decision, European Court of Human Rights, 7 March 2000
 Cruz Varas and Others v. Sweden, Judgement of 20 March 1991, Appl. No. 15576/89
 Chahal v. U.K., Appl. No. 22414/93, 15 November 1996
 See in particular jurisprudence on the requirements of Article 13 with respect to Article 3 under the ECHR. “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” Chahal v. U.K. as above. See also ‘Safeguarding the Rights of Refugees under the Exclusion Clauses’, Summary findings of a Project of the Lawyers Committee for Human Rights, October 2000