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“For I was a
stranger and you welcomed me” (Mt 25:35)
Comments
on the
Communication by the Commission
Towards
a common asylum procedure and a uniform status, valid throughout the Union, for
persons granted asylum (Com (2000) 755 final)
The above-named organisations represent Christian churches throughout Europe, Roman Catholic, Orthodox, Protestant and Anglican, as well as church agencies particularly concerned with migrants and refugees.
As Christian
organisations, it is part of our tradition to care for the oppressed and to
uphold the dignity of the human individual. We therefore welcome this
opportunity, at the invitation of the European Commission, to comment on its
Communication on asylum, and to take part in this vital debate on the future of
asylum in Europe.
As regards the general
tenor of the Communication, we very much welcome the Commission’s
analysis of the situation. We believe that this Communication is an important
step towards harmonisation of asylum policy. It is vital to have an overarching
vision of a European asylum system in order to address all the relevant aspects
in a coherent manner, including: the entry of asylum seekers onto the
territory, reception conditions, the asylum procedure itself and the
interpretation of the refugee definition, the content of refugee status,
temporary protection in situations of mass influx, complementary and
humanitarian protection, and solidarity mechanisms. It is crucial that all
future measures reflect current best practice. We believe that the Commission
is entirely correct to treat asylum and migration as separate although related
issues; our comments on the Commission’s Communication on a Community
Immigration Policy COM (2000) 757 are available separately. This is a valuable
opportunity to address some of the main flaws in the current national asylum
systems, in particular: the problem of access to the territory, reception
conditions that amount to a de facto barrier to seeking asylum
in some Member States, and national discrepancies in recognition rates and
statuses granted, which raise serious concerns about protection gaps.
The European Council has
already underlined its commitment to the “full and inclusive”
interpretation of the Geneva Convention on the Status of Refugees 1951[1];
besides this fundamental obligation to protect refugees, EU states also have
relevant commitments under other human rights instruments including the European
Convention on Human Rights and Fundamental Freedoms, the EU Charter on
Fundamental Rights, the UN Convention against Torture, the Convention on the
Rights of the Child and the Convention on the Elimination of All Forms of
Discrimination against Women.
Finally, we are
increasingly concerned at some of the terms used about refugees and asylum
seekers in the media and in public debate, and about the way in which refugees
and asylum seekers are often unjustly labelled, with a consequent negative
effect on public opinion. Certain sectors of the media have shown an
over-readiness to link refugees and asylum-seekers to criminality, to use
headlines that can mislead by exaggerating the number of refugees and asylum
seekers, and to present the issue entirely from a negative perspective. We
believe that it is important to encourage the media to draw up some principles
of best practice in this area We also urge
politicians and all involved in public discourse to make a resolute commitment
to give leadership in and to promote the use of accurate and sensitive
terminology in the debate on asylum. All of us, but especially the Member
States of the European Union and their leaders, have a responsibility to
increase public awareness on the issue, emphasising that refugees are fleeing
human rights abuses and are entitled to protection.
1.1.
We welcome the Commission’s recognition that
certain national policies have had the serious consequence of
“deterr[ing] certain refugees from seeking asylum”. It is
unacceptable that refugees be hindered in seeking protection because they
cannot get access to the territory in order to claim asylum, because they are
deterred by fear of detention or the denial of basic social benefits, or
because their claim is rejected as a result of flawed decision-making
procedures[2].
An asylum system should be based not on deterrence, but on prompt and fair
decision-making.
We
have particular concerns about admissibility procedures at airports and
borders. It is our experience that during such procedures individuals have been
deprived of their liberty without adequate legal basis, and are often held in
very unsatisfactory conditions. The circumstances in which these procedures
take place, especially the lack of time and of outside scrutiny, and the
difficulties in getting access to independent legal advice in a language the
individual understands, increase the risk of refoulement.[3]
1.2.
We are encouraged by the Commission’s
recognition of the need for “absolute respect for the specificity of
humanitarian admission against the legitimate objectives of preventing and
combating illegal immigration”. An asylum system is only of value if
those in need of protection can have access to it. This point is discussed in
more detail in 2.3 below.
Much
secondary migration by asylum-seekers within the EU is undoubtedly compelled by
the need to find an adequate degree of protection, not least because Member States
have varying interpretations of the 1951 Convention. Rather than returning
asylum-seekers to the country of first entry, a more logical way of tackling
the issue is to ensure that an equal and satisfactory degree of protection is
available across the EU. While the Commission indicates in section 2.5. that an
alternative system of State responsibility for asylum claims based on where the
claim was made can be envisaged once the common procedure and uniform status is
in place, we believe it is even more imperative to operate such a system now,
while the common procedure and uniform status are still lacking. Otherwise,
asylum-seekers face a protection lottery.
We support the
Communication’s call for rapid high-quality decision-making. We feel that
current flaws in the procedures are a significant factor why persons in need of
protection fail to get recognition. In particular:
-
Decision-makers must be fully trained and competent to
deal sympathetically 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.
-
Decision-makers must have adequate time and resources
to make good decisions, in particular access to high quality and up-to-date
country of origin information. There is a need for transparency as regards the
information on which asylum decisions are made; asylum-seekers and their
representatives must have access to this data. UNHCR and non-government
organisations have a role to play in gathering and evaluating this information.
We recommend the establishment of a centralized EU independent documentation
centre for this purpose.
-
Asylum-seekers whose claims are rejected must have
access to an independent appellate body, with authority to review both factual
and legal findings and the authority to hold a full re-hearing.
-
Proper interpretation services are vital, as is access
to high-quality state-funded legal counselling and representation; in order to
safeguard the rule of law, governments are obliged to enable persons under
their jurisdiction to enjoy their rights.
-
The EU must mainstream gender into asylum policies at
all levels and recognise the specific forms of gender persecution as legitimate
grounds for granting asylum in all Member States. Women asylum-seekers should
have access to female interviewers, interpreters and counsellors.
1.3. We agree that it is not appropriate to
“organise the recognition of Geneva-Convention refugee status or
subsidiary protection by means of individual positive or negative decisions
taken by a Community body”. However, harmonization requires effective
judicial control by the European Court of Justice; this seems an appropriate
time to review the restrictions in Article 68 (ex Article 73p)
of the EC Treaty with regard to access to preliminary rulings on the
interpretation of EC acts based on Title IV. In our view, the general
jurisdiction of the Court of Justice to give preliminary rulings laid down in
Article 234 (ex Article 177) should apply: lower tribunals should
have a discretion to submit an issue to the Court of Justice, whereas courts
and tribunals of final appeal should be obliged to bring relevant matters
before the Court of Justice. Otherwise, “[t]he fact that judicial control
at the EC level is [...] contingent upon discretionary decisions at the level
of national courts is likely to weaken the effective implementation of
harmonization measures under Title IV”.[4]
2.1. We agree that the goal of harmonisation
necessitates restricting the flexibility given to Member States. However it is
vital that no state will be obliged to lower its current standards in order to
align itself with the harmonised standards; for instance, those states that do
not impose time limits for lodging an asylum application should not be required
to impose such a restriction on the basis that other states follow this
practice. Indeed, states should be positively encouraged to operate higher
standards than the harmonised minimum; otherwise, common minimum standards
quickly become common maximum ones.
We support the
option presented by the Commission of abandoning safe country of origin
policies. We believe that failing to examine asylum applications on their
merits leads to a very real risk that persons in need of protection are not
identified. It is unrealistic to expect asylum seekers to rebut the presumption
that they are safe in their home countries, particularly where they are
expected to do so in a very short time frame, perhaps while being detained (see
below 4.1).
Safe third country policies must be exercised with great caution, if at
all. No-one must be sent back to a third country without the opportunity to
refute the assumption of safety, and without official guarantees that he/she
will be admitted to an adequate refugee determination procedure and adequate
reception conditions; asylum-seekers must be guaranteed that they do not face
the risk of chain deportations ending in refoulement.
2.2
We support the creation of a single procedure for the
determination of protection needs. Such a system is already in place in several
member States and, as stated above, harmonisation must be directed at best
practice. We strongly agree with the position of UNHCR:
“The
circumstances that force people to flee their country are complex and, often,
of a composite nature. Many times, those fleeing a country affected by war or
conflict can also validly claim to fear persecution on 1951 Convention grounds.
The identification of the person's protection needs cannot, therefore, be made
in a compartmentalised fashion. The case must be examined in its totality,
and this can be better achieved if the claim is considered in a single
procedure. Furthermore, UNHCR believes that a single asylum procedure will help
to increase speed and reduce the costs of decision-making in asylum
matters.”[5]
Under such a system the
application should first be examined in accordance with the 1951 Convention;
should these criteria not be met any other protection grounds fall to be
considered, followed by any other humanitarian reasons. We envisage this as a
hierarchical system; any applicant refused a particular status is entitled to
appeal this refusal without losing any lesser status already granted. We
believe that it would be more efficient to consider within this procedure all
relevant elements including other obstacles to the removal from the territory.
2.3
It is essential that people seeking protection have
access to the territory in order to apply for asylum. As noted above in 1.2, we
very much welcome the Commission’s recognition that measures to combat
irregular migration should take into account protection needs. This is a
particular concern in relation to visa policies and anti-trafficking/smuggling
measures, which must be framed in such a way as to be sensitive to the question
of access. One aspect of this is that all measures taken to prevent irregular
migration should contain a “savings clause”, specifying that
nothing in the measure shall affect the protection of refugees and asylum-seekers
under international law.
Visa
requirements should not be introduced for nationalities normally exempt on the
basis of a mass influx of asylum-seekers of that origin; on the contrary, such
a situation would tend to indicate that there are real protection needs in that
country, and if anything access should be facilitated rather than inhibited.
Carrier
sanctions, which effectively prevent individuals having access to the territory
regardless of the merits of their potential asylum claim, should be abandoned.
We
believe that ultimately the most effective way to counteract human trafficking
and smuggling is to reduce the demand by creating legal possibilities for
access to member States’ territory. We welcome the signal sent by the
European Union in signing the protocols to the UN Convention on trans-national
organised crime, including the principle of non-penalisation of victims. We
particularly urge that those who facilitate unauthorised entry and/or residence
out of humanitarian motives should be exempted from punishment.
2.3.2 We welcome the Commission’s suggestion of expanding
resettlement programmes. As by far the majority of refugees remain outside the
EU, in some of the world’s poorest regions, it is an important act of
solidarity and responsibility sharing to offer the possibility of resettlement.
As the Commission itself underlines, however, this option must not in any way
prejudice the proper treatment of individual requests by spontaneously-arriving
asylum-seekers.
2.4 We support the Commission’s proposal that
all applicants for protection would benefit from the same reception standards.
Harmonisation of living conditions must reflect current best practice in member
States. The rights enjoyed by asylum-seekers should be clearly defined and
reception conditions must not be left to the discretion of officials.
Asylum-seekers must not be deprived of their original rights as they progress
through the different stages of the asylum procedure. We note that the right to
work is an important step towards integration.
2.5
We believe that an asylum application should be
examined in a country where the application is lodged. As the Commission itself
has noted, the Dublin Convention is not an efficient mechanism for allocating
responsibility[6]. Examining
the asylum claim where it is made is the most appropriate solution with regard
to the objective of shortening the duration of asylum procedures. We believe
that this will reduce administrative procedures and will thus be less
expensive. It also provides for the various reasons a refugee is seeking refuge
in a specific country. This system should be extended to enable other Member
States than the one where the application was lodged to “opt in”
for reasons of existing family strings or cultural relations on the basis of
the double voluntariness principle.
2.6
We note that voluntary return for both refugees and
rejected asylum-seekers is more likely to succeed when the individual has had
access to training and work experience during the time spent in the host
country.
We believe that a useful
means of promoting voluntary return for refugees is to encourage “go and
see” visits and to offer reintegration assistance above and beyond
financial aid.
3.1 With regard to the common interpretation of
refugee status, we share UNHCR’s position that “persecution”
in Article 1 of the 1951 Convention does not exclude persecution by non-state
actors, an interpretation also shared by the vast majority of member States. We
believe that this is an indispensable part of the “full and inclusive interpretation”
of the 1951 Convention to which all member States committed themselves in
Tampere.
3.2 We believe that a single status for Convention
refugees and other persons under protection is both easier to administer and
fairer for those concerned. If, however, it is decided to have several statuses
with varying rights, it is vital that each status confers sufficient rights to
enable a dignified existence.
3.3
We welcome the rights set out in this section as basic
components of a single protected status or of each status where there is more
than one. It should be noted that where a single status is created, the rights
granted must not be less than those specified for refugees in the 1951
Convention. In addition, it is important that the anti-discrimination package
be implemented in such a way as to avoid any discrimination on the basis of
nationality.
3.4
We agree with the Commission’s general approach
to integration as expressed in this article. We recommend that the EU adhere to
the guidelines on integration set down by UNHCR. We would also stress that
integration should begin before a final determination is reached. This is
particularly important where procedures are of long duration. Once granted
protection, individuals should have simplified and accelerated access to
citizenship.
Having regard to the
necessity of “taking advantage of the talents that refugees have to
offer, including their professional skills”, we urge the creation of a
coherent system for the swift recognition of refugees’ professional qualifications,
accompanied by any assistance necessary to top up an individual’s skills
to be ready for the labour market. As noted above in 2.6, this approach is also
likely to make a later return to the country of origin more viable, as the
individual is able to return with more skills and hence should be better able
to provide for himself/herself and in many cases perhaps also provide a
valuable contribution to a recovering society.
4.1 In relation to the proposed Council decisions
identifying the groups or situations where there are or are no special risks,
we emphasize that no-one should be rejected without having had a full
examination of the individual circumstances of his or her case. In this
context, we are extremely concerned about certain proposals to categorize all
countries as high, medium and low risk, and make asylum decisions accordingly.
We believe that this crude categorisation takes little or no account of very
complex national or regional situations, and the speed at which those
situations can change. As noted in 2.1 above, we believe that asylum claims
should be examined individually and on their merits. We support the proposal
for a database and translation facility for exchanging relevant information and
we stress the need for the independence and transparency of this resource (see
1.2 above).
5.3 We very much
welcome the involvement of civil society as “actors and vectors of asylum
values in Europe”. We are ready to take part in the preparatory work
necessary for the creation of a harmonised European asylum system, such as the
various studies set out in this Communication, and to play an active role in
the future system itself. We encourage the Commission to establish a formal
mechanism for consultation with civil society in the development of future
legislation. Many non-government organisations and faith communities have
substantial experience on the ground with asylum-seekers and refugees, and can
offer a valuable perspective on the debate.
Brussels, May
2001
[1] Presidency Conclusions of the Tampere
European Council, October 1999, paragraph 13.
[2] “A range of factors,
including distrust of state asylum determination procedures, reluctance to be
detained, and fears about return, lead some refugees to choose life as a
migrant with irregular status. The numbers of those in this position are,
moreover, probably boosted by the way that restrictive measures force
legitimate refugees into illegal activities to enter the state in the first
place, dragging them into an underworld that has its own entanglements and
fetters”. Gibney, Outside the Protection of the Law: The Situation of
Irregular Migrants in Europe, RSC Working Paper No.6, study commissioned by the
Jesuit Refugee Service Europe, December 2000, p.42
[3] “At all airports visited,
access to asylum procedure is guaranteed […] although in certain cases,
the so-called "fast" or "accelerated" procedure makes it to
a large extent illusory. This is particularly dangerous when appeal has no suspensive effect
like at the airport in Stockholm.” Gross, Arrival of Asylum Seekers at
European Airports,
Report by the Council of Europe Committee on Migration, Refugees and
Demography, Doc 8671, 8th June 2000. Emphasis added.
[4] Alston, “The EU and Human
Rights” (1999), OUP p. 373.
[5] UNHCR preliminary observations,
January 2001. Emphasis included.
[6] Commission Staff Working Paper,
"Revisiting the Dublin Convention" SEC (2000) 522