UNHCR
summary observations
on
the
Commission proposal for a Council Directive on minimum standards on procedures
for granting and withdrawing refugee status
(COM(2000) 578 final,
20 September 2000)
1. The Office of the United Nations High Commissioner for Refugees (UNHCR) welcomes the opportunity to share its views on the Commission’s proposal for a Council Directive on minimum standards for procedures in Member States for granting and withdrawing refugee status. UNHCR wishes, at the outset, to commend the Commission for its efforts to try to ensure the operation of asylum procedures under Community law strike the right balance between the imperatives of fairness and those of efficiency. As such, the Commission’s proposal provides a sound framework for the legislative negotiations ahead.
2.
UNHCR takes note that the proposed
Directive only lays down minimum standards, thus allowing Member States to
introduce or maintain more favourable provisions of procedural asylum law than
those set out therein. In the view
of UNHCR the establishment of common minimum standards should be based upon
best practice and not tailored to accommodate lower standards found in domestic
legislation and practice of individual Member States.
3.
The Commission has limited the
application of the proposed Directive to procedures for determination and
withdrawal of refugee status under the 1951 Convention and the 1967 Protocol
only. UNHCR would have preferred
that the proposed Directive provide for a comprehensive treatment of all
applications for protection and thereby set out minimum standards for the
implementation of a single procedure.
Short of a single procedure, fairness and efficiency would require that
any procedures dealing with claims to other forms of protection than that under
the 1951 Convention be carried out according to the same standards and
guarantees as those contained in the proposed Directive. The proposal goes some way in
suggesting that this may indeed be the preferred approach, although this is
left to the discretion of Member States.
II. General
comments
4. UNHCR
welcomes the comprehensive set of procedural guarantees for applicants as well
as the detailed obligations to be taken on by Member States’
administrations. Specific safeguards applicable to groups with special needs,
such as separated children, are a necessary complement to the general
standards. The proposal largely reflects international procedural standards
laid down in the recommendations of the UNHCR Executive Committee and in UNHCR
guidelines. For example, UNHCR appreciates the inclusion of provisions related
to the need to issue clear instructions for decision-makers, the establishment and maintenance of
adequately resourced, trained, independent and competent decision-making
bodies, and the need for strict compliance with requirements for, inter alia, the
handling and transmission of information and the use of certain practices such
as detention.
5. Likewise, UNHCR welcomes the proposed three-tier system as regards the decision-making process. The Office believes that both fairness and efficiency could be achieved by two levels of appeal, providing they embody the necessary safeguards. The first appeal level may involve consideration of fact and law, and the second – possibly on a “with leave” basis – questions of law only.
6. The proposal
includes helpful clarifications on the distinction between admissibility and
accelerated procedures. However,
UNHCR is concerned that a harmonised application of some of the procedural
tools may result in the screening-out of a substantial number of asylum
applications, e.g. as a result of the broad use of the “safe third
country” and “safe country of origin” notions, or by
resorting to accelerated procedures in relatively large numbers of cases. UNHCR is also concerned about the
proposal to lift the suspensive effect of the appeal against negative decisions
taken in accelerated or admissibility procedures.
7. UNHCR would
generally advise against the creation of special, parallel procedures for
dealing with certain applications.
There could be a merit in considering to accelerate particular elements
or stages of the normal procedure, for example, by giving priority to the
examination of specific categories of applications such as those which appear
to be obviously well-founded or which have been lodged by persons in a
particularly vulnerable situation, including unaccompanied minors. Accelerating
and streamlining the procedure can also be achieved by establishing shorter,
but reasonable, delays for appealing a negative decision or by reducing the
time required for the completion of the appeals process.
8. It is, in
UNHCR’s view, essential that the following key elements contained in the
Commission proposal be preserved in the final text of the Directive to be
adopted in Council:
¨ The guarantee that an asylum applicant has an effective opportunity to lodge an application as early as possible, either at the border or on the territory, and that the applicant is allowed to remain at the border or in the territory for as long as the application has not been decided on[1].
¨ The obligation to instruct border guards to forward any application lodged at the border to the competent authority for examination.
¨ The
prohibition of the use of time-limits for requesting protection. That is, applicants for asylum should
not be required to make their request directly upon arrival or within a certain
time-limit after entry, although they may be required to fulfil certain
formalities during the procedure.
¨ The right of applicants for asylum to be informed, in a language that they understand, of the procedure to be followed and of their rights and obligations during the procedure; the right of an applicant to be given the services of an interpreter (whenever necessary) to be paid for out of public funds, if the interpreter is called upon by the competent authorities; the right of an adult family member to make a separate application for asylum.
¨ The
establishment of a clearly identified – wherever possible single central
– authority (different from the authority responsible for controlling
entry into the territory), tasked with examining asylum applications and
decision-taking in first instance and benefiting from adequate training and resources.
¨ The
establishment of a reviewing body which must be independent of and different
from the authority responsible for first-instance decisions.
¨ The
applicant’s right to a personal interview with a competent official, who
must, at the end of the interview, at least read out the transcript of the
interview in order to obtain the applicant’s agreement with its content;
guarantees for confidentiality of personal data of applicants are also provided
for.
¨ The
applicant’s right to lodge an appeal, with suspensive effect, against a
negative decision taken on the admissibility or the substance of the
application[2]. Applicants have the right to free legal
assistance during appeal procedures.
¨ The
applicant’s right to communicate with UNHCR or with other organisations
working on behalf of UNHCR at all stages of the procedure. UNHCR and these organisations must be
given access to applicants and their files, including applicants in detention
or in airport transit zones, and be able to make representations to any
competent authority regarding individual applications at any stage of the
procedure.
¨ The
prohibition to consider as ‘manifestly unfounded” and, hence,
process in accelerated procedures, applications which may be subject to the
exclusion clauses in Article 1 F of the 1951 Convention, or which raise the
issue of “internal flight alternative”.
¨ The clear
distinction between, on the one hand, admissibility procedures which do not
examine the substance of an application and, on the other hand, procedures (whether
regular or accelerated) that deal with the substantive aspects of the
application; this distinction is fundamental to avoid that applications that
are presumed to be manifestly unfounded, and, hence, merit a substantive
examination, are considered inadmissible.
¨ The
recognition of the importance of granting the benefit of the doubt to
applicants who have made a genuine effort to substantiate their claim, and
whose statements are coherent and plausible, despite a possible lack of
evidence for some of the statements.
9. In the view
of UNHCR, a number of the provisions contained in the proposed Directive
require amendments or clarifications if their compatibility with international
standards were to be ensured:
¨ As regards the scope of the proposed Directive, nothing contained in the instrument should be construed as impairing the right of a national of an EU Member State to lodge an application for asylum in another Member State, in conformity with relevant international instruments for the protection of refugees and for the protection of human rights.
¨ The proposed
Directive could benefit from a reformulation of some of the definitions in
Article 2 in order to bring them in line with internationally agreed
definitions. This concerns, in
particular, the questions of “application for asylum”,
“refugee status” and “withdrawal of refugee
status”. The provisions, in
Article 26, on withdrawal or cancellation of refugee status, should be amended
accordingly. UNHCR’s
concrete proposals for amendments are to be found in the detailed commentary
annexed to this note.
¨ The proposed
Directive should provide for an opportunity for an asylum applicant to consult
the transcript of the interview in all procedures in which such an interview is
foreseen, and not be limited to the regular procedure. The presence of legal counsel should
also be extended to all procedures, including admissibility and accelerated
procedures, where such presence may even be more urgently needed since
decisions are to be taken quickly in such procedures and the possible outcome
of the interview may be swift removal from the territory [Article 8 (6) and
Article 9 (3)].
¨ The
provisions on detention of asylum-seekers (Article 11)[3]
generally reflects agreed international standards and UNHCR guidelines[4],
with the exception of Article 11 (1) (d) which provides that detention can be
resorted to “in the context of a procedure to decide on [an
applicant’s] right to enter the territory”. UNHCR observes that such procedure is
neither defined nor explicitly regulated in the proposed Directive, and is
concerned that this provision may allow for the detention of an asylum
applicant for the duration of the asylum procedure conducted at the border. Therefore, this provision should be clarified
in order to ensure that it does not run counter to international standards for
the detention of asylum-seekers.
UNHCR has stated elsewhere that asylum-seekers who are waiting for a
decision on responsibility for the processing of their claim should not
normally be kept in detention[5].
¨ As regards
the notion of “safe third country”, the proposal should include
stricter criteria for assessing whether a third country can be determined to be
“safe”. Access to
asylum procedures should not be denied on the hypothesis that protection could
have been sought elsewhere. Return
to a “safe third country” may only be contemplated if that third
country has given its express consent that it will readmit the asylum-seeker,
protect him or her against refoulement, provide for the
possibility to seek and enjoy asylum and ensure that the applicant will be
treated in accordance with accepted international standards. UNHCR considers it inappropriate to
derive any responsibility for considering an asylum application from the fact
that the applicant has been merely present in the territory of another
State. Furthermore, UNHCR believes
that the question of whether a particular third country is “safe”
for the purpose of returning an asylum applicant to that country is not a
generic question which can be answered for any asylum applicant in any
circumstances, but only on an individualised basis. UNHCR therefore strongly advises against the use of
“safe third country” lists.
For the same reasons, UNHCR cannot accept the procedure (as per section
II Annex I) to declare a third country generally safe, although it can in
principle agree with the indicators for deciding whether a third country is
“safe” on an individualised basis (as listed in section I Annex I). UNHCR suggests that the corresponding
provisions of the draft Directive (Article 22) be amended accordingly.
¨ The proposal
could also be stricter on the criteria to identify an asylum application as
“manifestly unfounded” for the purposes of processing it in an
accelerated procedure. While the
criteria listed are generally compatible with international standards[6],
it should be recalled that the fact that an asylum applicant may not be in
possession of proper documentation, may have submitted an asylum request after
an expulsion order was made, or may be from a “safe” country of
origin does not necessarily render his/her application manifestly
unfounded. UNHCR therefore urges
that some of the provisions of Article 28 be carefully reviewed and amended,
taking into account UNHCR’s concerns as elaborated in the detailed
commentary annexed to this note.
UNHCR also calls for a clarification of the procedural application of
the “safe country of origin” notion (Article 31, Annex II section
II) in view of the unduly heavy burden of proof placed on the applicant[7].
¨ The proposal
should provide for suspensive effect of appeals against negative decisions in
all cases, regardless of whether such decisions are taken in regular or
accelerated procedures. An
asylum-seeker should be allowed to remain on the territory of the asylum
country until a final decision has been made on the case or on the State
responsible for examining the case[8]. UNHCR therefore urges that the Article
33 (2) exceptions to the suspensive effect of appeals be remedied.
_______________________
- [1] The text could be improved by making it clear that the stay of an applicant at the border of a Member State must be for the shortest possible time.
[2] Some exceptions, however, are proposed as regards the suspensive effect of the appeal, which are commented on below.
[3] UNHCR believes that the issue of detention of asylum-seekers could be regulated in more detail in the Directive on minimum standards for the reception of asylum-seekers; as a minimum, the Directive on minimum standards for asylum procedures should include a clear cross-reference to that Directive.
[4] EXCOM Conclusion 44 (XXXVII) of 1986, 1999 UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers.
[5] Implementation of the Dublin Convention: Some UNHCR Observations, May 1998.
[6] EXCOM Conclusion 30 (XXXIV) of 1983
[7] As with the indicators for designation of a third country to be “safe”, UNHCR finds those with respect to the “safety” of countries of origin generally sound and fair.
[8] EXCOM Conclusion 8 (XXVIII) (vii) of 1977 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”. EXCOM Conclusion 30 (XXXIV) of 1983 on manifestly unfounded claims states that “an unsuccessful applicant should be enabled to have a negative decision reviewed before rejection at the frontier or forcible removal from the territory.” In the context of Article 3 of the European Convention on Human Rights, Recommendation No. (98) 13 of the Committee of Ministers stipulates that, in order for the remedy to be effective, execution of the expulsion order is to be suspended.