CRITERIA and TIME LIMITS within 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
Background
ECRE welcomes
the decision of Member States to discuss the criteria and time limits foreseen
in the above proposal during the JHA Council Meeting on 13th and 14th
June. It uses this opportunity to share some of its concerns regarding the
Proposal as a whole as well as with regard to the two specific issues under
discussion.
ECRE has
repeatedly expressed its grave reservations regarding the Proposal, as it has
failed to adequately address the shortcomings of its predecessor the Dublin Convention:
it still allocates responsibility for examining an asylum application to the
Member State bearing responsibility for the applicant’s entry or stay in
the European Union. This has placed an undue burden on States with extended
land and sea borders in the south and east, the very states with the most
under-developed asylum infrastructures in the European Union, thereby
contradicting the principle of solidarity between Member States. Additionally,
it is extremely resource and cost-intensive and hence does not seem to meet one
of the main objectives of Member States in the asylum field to simplify and
shorten asylum procedures. ECRE is also extremely concerned by the wider
consequences of the system of responsibility distribution under the draft regulation
which to date has had immense human costs: States trying to refoule asylum seekers at their land and sea
borders in order to deflect responsibilities; and ever-stricter border control
and enforcement measures that have forced asylum seekers into the hands of
criminals and increased overall reliance on illegal channels. As a result,
refugees are faced with two options: either to remain in the country of origin
to face persecution or to take ever more desperate risks to their lives to
evade control measures and enter Europe.
ECRE considers
that the proposal in its current version is in clear contradiction with
paragraph four of its Preamble, which states that the criteria should be fair
both for Member States and for asylum seekers. It invites the forthcoming
Justice and Home Affairs Council to take into consideration the following
concerns regarding the criteria for determining responsibility and time limits
built into the Proposal.
Criteria
ECRE strongly
urges Member States to carefully reconsider whether the principle underlying
the Proposal of linking responsibility for the examination of asylum
applications and immigration controls is in the interest of Member States and
asylum seekers. It calls on States to base determination of the State responsible
for examining an asylum application on two criteria only:
(i)
where the
asylum applicant has a family member, provided s/he agrees;
(ii)
where the
asylum application is lodged.
ECRE believes
that there are a number of principles 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 secondary movement of asylum seekers in line with the
objectives stated in the Proposal’s Preamble;
(iii)
it would
reduce the incentives for asylum seekers to destroy documentation, and thereby
facilitate the examination of asylum applications. In the case of denial of
protection, it would also facilitate return to the country of origin;
(iv)
taking into
account their legitimate needs to be with families and communities would
benefit the reception of asylum seekers in the host State and facilitate their
eventual integration if granted protection.
ECRE therefore
recommends the deletion of Art. 9 - 13 of the current draft regulation.
ECRE’s proposal would meet the need for clarity, workability and
effectiveness. It would also address current disagreements between Member
States on the use of the concept of “tolerated illegal stay” as
well as on the allocation of primary responsibility based on either illegal
entry or illegal stay grounds. The situation whereby an asylum applicant,
having entered the European Union irregularly, is apprehended before reaching
the State where s/he wishes to lodge an asylum application should be foreseen,
however. ECRE therefore recommends that Art. 16 of the current Proposal
permitting another Member States to assume responsibility on humanitarian or
cultural grounds should be retained.
Hierarchy of
criteria
ECRE welcomes
the hierarchy of the criteria as set out in the Proposal as it places the best
interest of the child and other concerns of family unity above all other
criteria. It considers that the current Art. 14 (the provision that the first
Member State with which the asylum application is lodged shall be responsible
for examining) is clear, workable, effective and humane and should be used as
the sole second criteria, after family unity considerations.
Time limits
ECRE generally
welcomes the provisions in the proposal that set out time limits for the
transfer of asylum applications among the Member States as speedy procedures
without unnecessary delays are both in the interest of Member States and asylum
seekers. The current Art. 20 (3), however, foresees the transfer of an
applicant to another Member State
“as soon as practically possible” without any guarantees
providing for the right of the asylum seeker to appeal against the decision to
transfer him or her. Applicants who wish to appeal should have sufficient time
within which to prepare and lodge the appeal, and consult with a legal advisor.
In order not to render the right to appeal meaningless, Art. 20 (3) should set
an adequate time limit before which transfers should not be carried out.
Art. 20 (4)
allows for transfers between states to take place within six months. When
adding up the time limits stipulated in Art. 18 – 20, the whole procedure
for the allocation of responsibility and any subsequent transfer can thus
stretch to up to 10 months. ECRE finds this unacceptable as undue delays may
cause emotional and physical strains on the applicant. Once a final decision to
transfer has been made (either in first or appeal instance), it should take no
more than one month to give effect to the transfer. The same argument also
applies to Art. 21 (1) (e) where a one month time limit to effect transfers
should be incorporated, provided that the asylum applicant has been given a
reasonable period of time to prepare and lodge an appeal.
In conclusion,
ECRE would like to reiterate that the discussions on the Proposal for a Council
Regulation establishing the criteria for determining the Member State
responsible for examining an asylum application are tantamount to the overall
development of an efficient common European asylum system. It considers it a
matter of urgency to now create a workable, fair and efficient distribution of
responsibilities that is in the interest of both, Member States and the asylum
applicants concerned.
The European
Council on Refugees and Exiles is a network of some 70 refugee assisting
non-governmental organisations in 25 European countries.
For
further information contact the European Council on Refugees and Exiles (ECRE)
at:
ECRE Secretariat EU
Office
Clifton Centre – Unit 22 205
rue Belliard
110 Clifton Street Box
14
London EC2A 4HT 1040
Brussels
United Kingdom Belgium
Tel:
(44) 20 7729 5152 (32)
2 514 5939
Fax:
(44) 20 7729 5141 (32)
2 514 5922
E-mail:
http://www.ecre.org