Text Box: EUROPEAN COUNCIL ON REFUGEES AND EXILES CONSEIL EUROPEEN SUR LES REFUGIES ET LES EXILES                                                                                                                                    

 

 

 

 

 

 

 

 

 

Comments from the European Council on Refugees and Exiles

on the Proposal for a Council Regulation establishing the criteria

and mechanisms for determining the Member State responsible for

examining an asylum application lodged in one of the Member States by a third country national

 

(Brussels, 26.07.2001, COM(2001)447 final, 2001/0182(CNS))

 

Introduction

 

The European Council on Refugees and Exiles (ECRE) is a network of some 70 non-governmental refugee-assisting organisations in 28 European countries.  ECRE welcomes this opportunity to comment on the Proposal for a Council Regulation for establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, presented by the Commission in July 2001 (henceforth the ‘Proposal’).[1]

 

Summary of Views

 

It is with regret that ECRE has to say that the Proposal, just like its predecessor the Dublin Convention, is doomed to be ineffective and unworkable.  Furthermore, it is neither in the interests of Member States nor asylum applicants.  The reason being that the Proposal is based on the very same recognised flawed principles of the Dublin Convention, i.e. responsibility for examining an asylum application lies with the Member State bearing responsibility for the asylum applicant’s entry to or stay in the European Union.

 

The stated aim of the Proposal is to make Member States “answerable” to all other Member States for their ‘failures’ to control entry and control borders and to signal that “a Member State which does not take effective action against the illegal presence of third-country nationals on its territory has an equivalent responsibility vis-à-vis its partners to that of a Member State which fails to control its borders properly.”

 

All of this would appear to be in contradiction with paragraph 4 of the Preamble which states that the criteria should be fair both for Member States and for asylum seekers.  It is neither.

 

With regards to Member States, linking allocation of responsibility for asylum applications with responsibility for entry controls clearly has the result of shifting the greater responsibility for asylum applications to those States with extended land and sea borders in the south and east – the principal migration entry points.  These States – the accession States of central Europe and the southern European States – are the very States with the most under-developed asylum infra-structures in the European Union.  One of the leading principles of EU law is solidarity between Member States.  The system proposed by the Proposal of reproaching the ‘negligent’ state and placing an unequal responsibility on Member States with long external borders would appear to be contrary to the principle of solidarity between Member States.

 

Furthermore, the process of actually identifying the Member State which was first entered illegally is resource intensive, in terms of the administrative, human and financial resources required, whilst the chances of identifying the Member State responsible for entry is small.  In a situation where illegal entry offers the only option for many asylum seekers to gain access to the territory and, thereby, access to an asylum procedure, EU States will continue to face problems caused by a lack of evidence proving which EU State was entered illegally: either because there actually is no evidence or the evidence has been destroyed.  The financial and human resources expended on identifying the Member State the asylum applicant first entered could and should be more logically spent on the fair and efficient examination of the asylum request.  Member States must ask themselves whether the underlying objectives of the Regulation justify such an expensive and ineffective system.

 

Such an approach also has dire and too often tragic consequences for refugees.  The linking of responsibility for entry controls and refugee determination procedures, encourages EU States to illegally refoule asylum seekers at their land and sea borders.  It also encourages EU States to export enforcement measures beyond the frontiers of the Union by sending ‘immigration officers’ overseas to assist in the enforcement of border controls extra-territorially, and further ‘privatising’ enforcement through the implementation of carriers’ sanctions.  It is impossible to be precise about the number of refugees who are denied escape from persecution, but clearly this represents an ever-increasing barrier.  This is in flagrant contradiction to the reaffirmation of the European Council in Tampere of the importance the Union and Member States attach to absolute respect of the right to seek asylum and to the promise to “offer guarantees to those who seek protection in or access to the European Union”.[2]  The result of such an approach is sadly all too obvious today.  The result is that refugees are either forced to remain in their country of origin to face persecution or to take ever more desperate risks to evade controls with the consequent high risks to their lives. 

 

ECRE strongly urges Member States to reconsider carefully whether the principle underlying the Proposal of linking responsibility for the examination of asylum applications and immigration controls is in the interests of Member States and refugees.  ECRE believes that it is not and we would urge States to base determination of the State responsible for examining an asylum application on two criteria alone:

 

(i)             where the asylum applicant has a family member, provided s/he so agrees;

(ii)           where the asylum application is lodged.

 

ECRE believes that there are a number of principled and pragmatic reasons why such an approach is both in the interests of Member States and refugees:

 

(i)             it would lessen the administrative burden on States which would no longer have to investigate and assess evidence relating to the asylum applicant’s entry to the European Union;

(ii)           it would reduce the incentive for the secondary movement of asylum seekers in line with the stated objective of the European Union;

(iii)          it would reduce the incentives for asylum seekers to destroy documentation, and thereby facilitate the examination of asylum applications.  In the case of a denial of protection, it would also facilitate return to the country of origin.

(iv)          taking into account the legitimate needs of asylum seekers to be with their families and communities would benefit their reception in the host State and facilitate their eventual integration if granted protection;

(v)           readmission rules complemented by finger-printing would prevent multiple – either concurrent or consecutive – applications for asylum.

 

Such a system would meet the needs of clarity, workability and effectiveness.   It may be foreseen that a situation could occur whereby an asylum applicant, having entered the European Union irregularly, is apprehended before reaching the State where s/he wishes to lodge an application for asylum.  To address such a situation, a provision which permits another Member State to assume responsibility for an asylum application on humanitarian or cultural grounds should be retained. 

 

ECRE notes that there are some progressive changes within the new Proposal in line with ECRE’s proposal, e.g. the primacy of family reunification especially the prominence given to unifying children with their parents or guardians.  However, including the underlying rationale, there are several provisions which ECRE finds to be unacceptable.

 

ECRE’s main concerns are summarised as follows:

 

 

Finally, as ECRE has said repeatedly, no system of allocation of responsibility for examining asylum applications can function fairly without harmonisation of substantive laws and their interpretation, and the harmonisation of asylum procedures.  This is a question of fundamental justice.  Asylum laws, the interpretation of those laws, and asylum procedures vary so widely and significantly from one European Union State to another that the situation has been referred to as a “protection lottery”.  Harmonisation must be a prerequisite for the fair implementation of this Regulation, however, ECRE has serious doubts as to whether the other proposed Directives will achieve sufficient harmonisation.  Member States must double their efforts to effectively bridge the divergences which exist and to do so in a way which is in accordance with international human rights law, international refugee law and the protection of refugees.  All ECRE’s comments in this paper are qualified by this general position.

 

Comments on the Articles are presented in greater detail below.  The comments follow the order of the Proposal.

 

Chapter I: Subject Matter and Definitions

 

Art. 2

 

Art. 2(i)

 

ECRE generally welcomes this provision, which expands the definition of “family member” to include persons with a blood relationship to the asylum seeker and who were living in the same household in the country of origin, with some reservations.  While in principle the expansion is in line with ECRE’s position, as ECRE notes in Guarding Standards – Shaping the Agenda, demanding “dependency” within the family relationship is an overly high threshold.  A broad concept of the family unit needs to be adopted which will include extended and de facto family members.  ECRE would like to remind Member States that Paragraph 185 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status calls for a broader concept of the family.  What comprises a family or defines a family member stretches beyond considerations of financial dependency, and is often determined by cultural backgrounds and current situations.  In all cases, dependence should be seen in both material, including financial, and emotional terms.

 

Therefore, ECRE recommends the following in regard to Art. 2(i):

 

 

The current Proposal contains no guidelines in regard to proof in attempting to establish a familial relationship.  Guidelines should be set for procedures and means of proof when determining a familial relationship.  ECRE commented fully on what documentary evidence should be accepted when confirming family ties in our paper Position on Refugee Family Reunification of July 2000.[3] 

 

Art. 2(j) – (k)

 

These two paragraphs define “residence document” and “visa” for the purposes of the Proposal.  Under the responsibility allocating framework that ECRE proposes (see comments under Chapter III), definitions for residence documents and visas are not needed. 

 

Chapter II: General Principles

 

Art. 3

 

Art. 3(1)

 

Art. 3(1) states that an asylum application shall be examined by a single Member State, which will be identified by the procedures provided for in the Proposal.  This provision does not include any references to Member States’ international obligations, unlike the Dublin Convention.  This deletion is not encouraging.  ECRE would remind Member States of their international obligations under, for example, the European Convention on Human Rights and the Convention Against Torture both of which specifically prohibit refoulement.  Member States are urged to undertake the examination of asylum applications with the full understanding of their commitments under international refugee and human rights law.

 

Art. 3(1) should be amended to include the following:

 

 

Art. 3(3)

 

The inclusion of the “opt out clause” in Art. 3(3) is a particularly important provision as it allows Member States to consider an application lodged with it for humanitarian or practical reasons.  However, the practice of implementing such a clause under the Dublin Convention demonstrates that the provision is very rarely applied in favour of the applicant on the grounds of, for example, maintaining family unity or for humanitarian reasons.  ECRE urges Member States to amend the provision along the lines of Article 16 of the Proposal:

 

“In derogation from paragraph 1, each Member State may, for humanitarian reasons, based in particular on family or cultural considerations, examine an asylum application lodged with it by a third-country national, even if such examination is not its responsibility under the criteria of this Regulation.”

 

Article 3(3) includes a requirement to inform the applicant in writing of when the examination will start, which is in line with the Tampere Conclusions requirements of transparency.  The sentence should be amended to include “in a language s/he fully understands and reads” in order to fully fulfil this requirement.

 

ECRE recommends that three provisions be inserted into Art. 3(3) as follows:

 

 

Art. 4

 

Art. 4(3)

 

Art. 4(3) provides that when an asylum seeker withdraws their asylum application as defined by Article 2(c), in favour of a request for another form of protection, the responsibility allocation process under the Regulation should continue.  ECRE disagrees with this provision for as long as the scope of the Regulation (and the other EU Directives) is restricted to applications for asylum under the Geneva Convention.  Once the applicant has withdrawn an asylum application, the responsibility allocation process should cease as the applicant no longer falls within the scope of the Regulation.  The applicant may wish to withdraw an application for refugee status under the Geneva Convention in order to apply for another national status, dealt with under another procedure, which is more appropriate to his/her situation.  This is a legitimate action which should not be denied by the Regulation.

 

ECRE suggests the following amendments:

 

 

Art. 4(4)

 

ECRE welcomes this provision, which states that the situation of a minor accompanying an asylum seeker who meets the definition of a family member as outlined in Art. 2(i) shall be indissociable from that of her parent or guardian, as it maintains family unity among asylum seekers. The ‘best interests of the child’ should remain paramount.

 

 

Chapter III: Hierarchy of Criteria

 

Art. 6

 

The inclusion of this article, which provides for the reunification of an unaccompanied minor with a family member as a first priority as long as it is in the best interests of the child, is welcome.  Refugee children are extremely susceptible to emotional harm that can be caused by long periods of separation from their parents and the prioritisation of their needs is appropriate.

 

However, in accordance with Article 2(i), Article 6 only guarantees an unaccompanied minor reunification with his/her parents or guardian or relatives if “they used to live in the same home in the country of origin”.   The Regulation should guarantee that an unaccompanied minor is united with extended family members, for example an aunt, if it is in the best interests of the child rather than leaving this to the discretion of Member States under Article 16 of the Regulation.  ECRE would remind Member States that it is often in the best interests of the child to allow for unification with relatives who had, or will have, a substantive role to play in the child’s life given their cultural background, when the child’s parents cannot be traced or are deceased, rather than long-term placement with a governmental agency or foster family.

 

In this regard, we refer to our recommended amendment of Article 2(i) above.

 

Information about reunification should be given to the child in an age appropriate manner, in a language he understands.  Children should be united with a family member at the earliest possible opportunity, with every effort made to trace the child’s parents whereabouts and situation.  Length of separation should not influence a decision to reunite children and parents, and at no time should there be a presumption of broken family ties due to long term separation.

 

Art. 7

 

Providing for unification of family members, with the inclusion of an expanded definition of family members detailed in Art. 2(i), is a needed provision.  The presence of one’s family is an important factor affecting an asylum seeker’s ability to integrate into the Member State as well as providing needed emotional support during what can be a period of stress.

 

However, Article 7 is limited in providing for reunification with a family member who has refugee status under the Geneva Convention.  This right should be extended to those persons who have a family member who has been allowed to legally reside in a Member State on other protection grounds e.g. a complementary form of protection and temporary protection.  In light of the regrettable trend towards lower recognition rates under the Geneva Convention, and an increase in the use of other complementary forms of protection, reunification with family members afforded such a complementary status or temporary protection is as important as reunification of asylum seekers with family members with refugee status under the Geneva Convention, and should be guaranteed.  Additionally, if the asylum seeker has family members in the Member State who are not receiving a form of protection, but are legally residing in the State, the family should be unified.

 

ECRE recommends that Article 7 be amended accordingly:

 

 

Art. 8

 

Art. 8(1)

 

ECRE welcomes this provision as it provides for the reunification of applicants with family members who are themselves asylum applicants in another Member State.  However, the Article is limited to those family members whose applications are being examined under the normal determination procedure.  In other words, applicants with a family member whose asylum application is being examined in an admissibility or accelerated procedure in another Member State would not be reunited under this Article.  The right is limited, according to the Explanatory Memorandum, on the grounds that this measure can only be profitably applied if it does not affect other goals of asylum policy, primarily the quick processing of asylum applications.  Additionally, the Memorandum states that family reunification in admissibility procedures or accelerated procedures is “disproportionate and likely to delay examinations” since the twin spectres of transfer and dismissal, due to a strong presumption of a negative outcome, loom over them. 

 

ECRE strongly disagrees with this position.  Given the fact that, unfortunately under many national asylum procedures, an asylum application can be placed in an accelerated procedure for reasons not relating to the substance of the application, a negative outcome cannot be presumed.  The benefits of uniting families and of applications from family members being dealt with by the same authority favour both the asylum applicant and the Member State.  The applicant receives the support of the family and the Member State can process the applications thoroughly and consistently.  The right to family unity should be extended to include all the procedures for examining an asylum application, including accelerated procedures, until a final decision is taken.

 

ECRE recommends the following amendment to Art. 8(1):

 

 

Art. 8(2)

 

ECRE acknowledges the concerns of the Commission in drafting this provision.  However, as drafted it is more likely to separate families than to reunite them.  See our comments above in relation to Art. 8 (1).

 

Arts. 9 - 13

 

Articles 9 to 13 link responsibility for immigration controls with responsibility for examining asylum applications.  ECRE strongly recommends the deletion of Articles 9 through 13 as unworkable, burdensome and counter to the needs of refugees and Member States alike.

 

ECRE strongly discourages linking allocation of responsibility for application processing to responsibility for entry controls.  It encourages States to refoule asylum seekers at their land and sea borders, in contravention of their international obligations.  Secondly, it encourages States to export enforcement measures beyond the frontiers of the Union; and to further “privatise” enforcement through the extended implementation of carriers’ sanctions while discouraging the implementation of compensatory measures to facilitate access to the territory.[4]  As a result of these controls, refugees are more likely to have to resort to illegal means to enter the territory with the attendant high risks to their lives and the costs of using traffickers.

 

By continuing to align responsibility for application processing with entry control, the Proposal places an extra burden on those Member States who have extended sea and land borders in the south and east, the principal migration entry points.  These States, located in Central and Southern Europe, are currently working to develop the asylum infra-structures.

 

ECRE discourages linking asylum application responsibility to the enforcement of immigration control within the territory of the Member States.  Provisions like these encourage States to target enforcement within immigrant communities, comprised of regular immigrants, EU citizens as well as asylum seekers, which can easily lead to infringements of the human rights and civil liberties of citizens of the EU and, in particular, of those citizens who belong to visible minorities.  This contributes to the emerging hostile climate toward ethnic minorities, and those who appear to be foreigners, and will negatively impact integration policies. 

 

Given these concerns ECRE recommends the deletion of Art. 9 - 13.

 

Art. 14

 

This provision, which provides that the first Member State with which the asylum application is lodged shall be responsible for examining it, is welcome.  This criterion meets the Commission’s criteria of a system that is clear, workable and effective.  It is clear because there is only one criterion to be applied.  It is workable because this system would not be plagued with the administrative burdens of investigation and assessment of indicative evidence and consequent negotiations between Member States  Additionally, it would remove the incentive to destroy documents that may be relevant to establishing the identity of the asylum applicant. 

 

It would be effective because the identification of the responsible State would be swift and the system would operate more quickly.  By narrowing the criteria to one determining factor, the system would require less financial and human resources to operate.  Tailoring the application process to fit the intentions of the asylum seeker would tackle the problem of multiple applications and curtail secondary movements of applicants throughout the territory of the Member States.

 

Furthermore, this type of system would be the most fair and humane for asylum seekers and their families because it would avoid unnecessary delay and promote the efficient processing of asylum applications, while maintaining respect for the wishes of the asylum seekers themselves.  It recognizes the principle set out in the UNHCR Executive Committee Conclusion No. 15, which states that “ the intentions of the asylum seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account.” 

 

ECRE believes that choosing a particular Member State on the grounds that it implements a fair examination of an asylum application and proper application of international law, is not an abuse of the asylum procedure.  Choosing a particular State because of family ties, or a community within that State, is not an abuse of the asylum procedure.  Choosing a State because of a common language is not an abuse of the asylum procedure.  These are all legitimate factors which, to the extent that there is a choice, may properly influence an asylum seeker’s decision as to where to lodge an application.[5]

 

Art. 15

 

Art. 15 provides that if family members submit applications to one Member State, sufficiently close together in time, and the family members would be separated due to the application of the Regulation, one Member State should be deemed responsible based on two criteria: 1) the Member State responsible for the most applications will accept those of the entire family and 2) failing that, the Member State responsible for the application of the oldest family member will accept all applications.  Whilst welcoming the aim of this provision to maintain family units, we would like to point out that this aim would be achieved by a system based on allocation according to two criteria alone ensuring family unity and where the asylum application is lodged, as we have proposed above.

 

 

Chapter IV: Humanitarian Clause

 

Art. 16

 

ECRE gladly welcomes the retention of the humanitarian clause from the Dublin Convention.  The humanitarian clause allows a Member State to assume responsibility based on humanitarian reasons, including family or cultural considerations, provided the applicant consents.  However, the problem with this article, as is the case with a similar provision in the Dublin Convention, is that it is discretionary.  Member States have so far been extremely reluctant to implement it so that it is almost never used and when used, the interpretation of ‘humanitarian reasons’ has been very restrictive.

 

ECRE interprets the inclusion of particular situations in Art. 16(1) as a non-exhaustive list, allowing Member States to add situations as they see fit.  As stated in the Explanatory Memorandum “situations that can arise are so diverse that they cannot all be covered by special provisions, …a discretionary humanitarian clause remains necessary in the interests of Member States and asylum seekers.”

 

ECRE urges Member States to utilise the family grounds provision in Article 16 where family unity is not ensured under Articles 7 and 8, and to utilise the cultural grounds provision when, for example, an applicant requests transfer in order to join community members in another Member State or requests transfer to a Member State in which s/he has previously been resident.  ECRE reminds Member States that the particular cultural needs of asylum applicants relating to their race, ethnicity, nationality, religion, language, etc., should be taken into account when determining state responsibility.  Substantial cultural ties to the state where the application is lodged are an important factor.  Additionally, Article 16 should be applied when an asylum seeker can demonstrate that on the facts of his or her case the responsible Member State would, based on evidence of past practice, apply more restrictive criteria in determining refugee status than the Member State where the application has been lodged and as a consequence produce a very different decision detrimental to his/her safety.  ECRE urges Member States to apply Art. 16 in a humane and flexible way that takes into account the various situations of asylum seekers, as this is the only way the provision will be effective. 

 

It is positive that Member States cannot invoke Article 16 without the consent of the asylum seeker.  This maintains respect for the intentions and wishes of the asylum applicant.  However, ECRE is concerned that Member States are under no obligation to inform the asylum seeker that s/he may request the transfer of her/his application to another Member State on family and cultural grounds.  ECRE urges Member States to inform the asylum applicant of the possibility of seeking family reunification or transfer on the basis of cultural or other humanitarian needs under the Proposal in order to enable the asylum seeker to present relevant information and to facilitate the implementation of Article 16.

 

ECRE recommends the following amendments to Article 16:

 

·      Member States shall inform the asylum seeker of his right to request that another Member State assume responsibility for processing his application for humanitarian reasons.

 

Chapter V: Taking Charge and Taking Back

 

Art. 18

 

Art. 18 outlines the procedure for requesting that another Member State take charge of an application.  It includes relevant time lines, what information is needed and information transmission between states, the procedure for an urgent reply in specific circumstances, and notification to the applicant of transfer between States.  ECRE generally welcomes the provisions in the Proposal that set out time limits for the transfer of asylum applications among the Member States.

 

ECRE welcomes Article 18(4), requiring that asylum applicants be informed immediately in a language they understand, as an absolutely essential provision.

 

Art. 19(3)

 

This article provides that Member States must respond to a request to assume responsibility within one month of receipt.  Failure to respond within this time limit is tantamount to acceptance of the request.   The Explanatory Memorandum explains that this is the ‘penalty’ for failing to reply.  ECRE is concerned that asylum applicants who do not wish to be transferred to another State will, under this provision, themselves have to ‘pay the penalty’ for States failure to reply.  Asylum applicants should not ‘pay the penalty’ for a State’s failure to abide by the provisions of the Regulation.  Article 28 of the Proposal, which provides for a system of penalties for infringements, is more appropriate.  ECRE, therefore, proposes the following amendment:

 

"Failure to act within the period of one month mentioned in paragraph 1 shall be tantamount to a refusal of the request, except when the request was based on Articles 6, 7, 8, 15 or 16 of this Regulation and with the consent of the asylum applicant, in which case the failure to respond within the period of one month mentioned in paragraph 1 shall be tantamount to accepting the request."

 

If Member States persist in retaining Article 19(3) as it is currently drafted, ECRE is concerned that asylum applicants may be transferred without the knowledge of the responsible State and, therefore, not given access to the asylum procedure in that State.  In order to avoid applicants being transferred without previous notification of the authorities in the Member State responsible, it should be specified that the transfer should not be carried out without the previous notification of the responsible State and the provision of information regarding the practicalities of transfer. 

 

Art. 20

 

Art. 20(1)

 

Art. 20(1) states that when a request to take charge of an application is accepted, the requesting Member State shall inform the applicant of the decision within no more than 15 working days from the day of receipt of the acceptance.  This allows asylum applicants either to lodge a timely appeal against the decision to transfer or to prepare fully for a voluntary transfer.  As the notification supplies important information to the applicant concerning the basis for the transfer and what date she must appear in the receiving Member State, this information must be provided in a language the applicant understands.

 

ECRE recommends the following amendments to 20(1):

 

·      Where the State requested that it should take charge, the State in which the asylum application was lodged shall communicate to the applicant, in a language he understands, a single decision concerning the inadmissibility…

 

Art. 20(2)

 

Art. 20(2) states that if another Member State does take charge of an application, the notification to the applicant must contain the grounds on which it is based, the time limit for the transfer, and the place and date at which the asylum seeker must appear in the accepting state if she is travelling by her own means.  Any appeal of the decision lies to the courts, but the appeal does not provide for a suspension of the  transfer.

 

ECRE believes that this article is necessary but has nevertheless grave concerns as it is drafted.  This article needs to be improved in a number of key respects.

 

ECRE urges Member States to amend this article to ensure that the decision referred to in Article 20(1) includes information on the right to appeal.

 

Furthermore, while the provision allows for an appeal to the courts against a decision to transfer an applicant, this provision does not provide the asylum applicant with a suspensory right of appeal pending a decision.  While Member States have differing interpretations of Art. 1(A) of the Geneva Convention, a transfer to another Member State which applies a more restrictive interpretation may amount to refoulement and a return to harassment, torture and even death.  At a minimum, the applicant must have suspensive right of appeal against a removal to another Member State where s/he considers that transfer to that State would be in violation of Article 33 of the 1951 Convention and/or Article 3 of the European Convention on Human Rights.[6]

 

ECRE urges Member States to amend Art. 20(2) to provide a suspensory right of appeal as follows:

 

·      Appeal shall not suspend the performance of the transfer.

 

Art. 20(3)

 

Applicants who wish to appeal should have sufficient time within which to prepare and lodge the appeal, and in this context consult with a legal advisor.  As the article is currently drafted, the right to appeal could be rendered illusory by the immediate transfer of applicants.  Therefore, it is essential that Article 20(3) sets an adequate time limit within which transfer should not be carried out.

 

Art. 20(4)

 

Art. 20(4) allows for transfers between states to take place within six months.  If the transfer does not take place, responsibility reverts back to the state where the application was lodged.  As currently drafted, the procedure for allocation of responsibility and any subsequent transfers can stretch up to 10 months.  ECRE finds it unacceptable that the transfer of an asylum applicant is allowed to take up to 6 months.  This process may cause emotional and physical strain on the applicant, and should not be prolonged for any longer than necessary.  Once the decision to transfer is final, either on the first instance or after an appeal has been decided and the suspensory period lifted, it should take no more than one month to effect the transfer. 

 

Art. 20(4) should be amended as follows:

 

·      Where the transfer does not take place within the period of one month six months, responsibility shall lie with the Member State in which the asylum application was lodged.

 

Art. 21

 

Art. 21(1)(e)

 

Art. 21(1)(e) states that when a State agrees to take back an asylum seeker they are obliged to readmit him into their territory.  The transfer is to be carried out under national law, and should take place as soon as possible, and within six months.  ECRE does not support the six month time limit for transferring between States and believes one month to be an adequate amount of time for transfers, see comments under Art. 20(4).

 

Art. 21(1)(e) should be amended to read:

 

·      The transfer shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within one month six months of acceptance of the request to take charge.

 

Applicants who wish to appeal should have sufficient time within which to prepare and lodge the appeal, and in this context consult with a legal advisor.  As the article is currently drafted, the right to appeal could be rendered illusory by the immediate transfer of applicants.  Therefore, it is essential that Article 21(1)(e) sets an adequate time limit within which transfer should not be carried out.

 

 

Chapter VI: Administrative Cooperation

 

Art. 22

 

Art. 22(6)

 

This provision has been transferred from the Dublin Convention to the Proposal virtually unchanged, and as such, ECRE concerns are the same as those voiced with regards to the Dublin Convention.  The provision provides a minimum of protection by limiting the parties to the exchange of information to Member States, but there is no provision for a monitoring body to ensure data protection. 

 

ECRE recommends the establishment of a monitoring body to ensure that exchanged personal information and data is not used for any other purpose other than determining the Member State responsible for examining the application and that the information is never disclosed to the asylum seeker’s country of origin.

 

Art. 22(9)

 

This article provides that the applicant has the right to be informed, by request, of any data processed concerning him.  Further, the applicant can correct, erase or block any incomplete or inaccurate information, which will transmitted to the receiving State.

 

While ECRE welcomes the right of asylum applicants to block completely any information exchanged between Member States that may be inaccurate, it does not benefit either the States or the asylum seekers to predicate this on the asylum seeker requesting notification.  Allowing asylum seekers to correct information at an earlier stage in the process promotes transparency between State governments and asylum seekers and prevents incorrect information from clogging up the administrative channels and thus facilitates the quick processing of asylum applications.

 

Therefore, ECRE recommends the following changes to Art. 22(9):

 

·      The asylum seeker shall has the right to be informed, on request, of any data that is processed concerning him.

 

Article 24

 

Art. 24 allows Member States to establish bilateral agreements concerning the implementation of the Proposal.  Bilateral agreements between Member States may prove effective in facilitating the processing and transfer of applications.  However, as accelerated time limits are often an integral part of these agreements, asylum applicants may not have full and complete access to the necessary legal aid and to their rights of appeal when being transferred to, or taken back by, a Member State.  ECRE urges Member States who enter into bilateral agreements to craft these documents with the rights of the asylum seeker firmly in the foreground.  Such bilateral agreements must not infringe asylum applicants procedural rights.  For further discussion on procedural safeguards needed in processing asylum applications and the rights of asylum seekers during the evaluation process see ECRE’s position on minimum standards on granting and withdrawing refugee status. 

 

London, December 2001

 


[1] ECRE has articulated its position in detail on the Dublin Convention in 1997 with the publication of our Position on the Implementation of the Dublin Convention in the light of lessons learned from the implementation of the Schengen Convention, December 1997.  ECRE also took the opportunity presented by the European Commission to comment on the implementation of the Dublin Convention with the publication of Revisiting the Dublin Convention in 2000 (June 2000).  The admissibility procedures presented by the Proposal are integrally connected to reception conditions within Member States and the minimum procedural standards for granting and withdrawing refugee status, therefore ECRE refers the reader to ECRE’s comments on the proposal for a Directive laying down minimum standards on the reception of applicants for asylum in Member States (September 2001) and our comments on the Commission proposal for a directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (April 2001). These are all available at www.ecre.org

 

[2] Paragraph 13 and paragraph 3 respectively of the Presidency Conclusions, Tampere European Council, 15/16 October 1999

[3] July 2000 – available under www.ecre.org/eu_developments/family.shtml

[4] See paragraph 3, Presidency Conclusions, Tampere European Council, 15-16 1999.

[5] Asylum Migration to the European Union: Patterns of Origin and Destination, Institute for the Sociology of Law, Nijmegen, published by the Office for Official Publication of the European Communities, 1998.

[6] ECRE reminds Member States that in T.I. v. UK the European Court of Human Rights found that indirect removal does not affect the responsibility of each EU State to ensure that the applicant is not, as a result of its decision to transfer under attribution of responsibility arrangements, exposed to treatment contrary to Art. 3 of the ECHR.  The risk of removal contrary to Art. 3 of the ECHR and Art. 33 of the 1951 Convention must be limited by providing the asylum applicant with an effective legal remedy.