UNHCR’s Comments on the European
Commission’s
Working Document on
the relationship between safeguarding internal security and complying with
international protection obligations and instruments - COM(2001) 743 final, 5
December 2001
1. General
observations
UNHCR considers that the
Commission’s Working Document contains a number of positive elements. In
particular, UNHCR welcomes that the Working Document:
(i) while
recognising Member States’ legitimate interest in reinforcing security
safeguards to prevent terrorists from gaining admission to their territory,
emphasizes the need that any current or future security safeguards strike a
proper balance with the refugee protection principles at stake (Introduction);
(ii) affirms
that, rather than through major changes to the international regime for the
protection of refugees, the appropriate approach is to apply scrupulously the
exceptions already provided for in that regime (Introduction);
(iii) stresses the need
to admit all asylum seekers to an asylum procedure, and rightly points out that
automatic bars to accessing an asylum procedure, for instance by rejection at
the border, could result in refoulement (Paragraph 1.4.1);
(iv) affirms that
exclusion from refugee status should be explored only where there are specific
reasons to believe that the person may fall under the scope of one of the
relevant clauses (Paragraph 1.4.3.1);
(v) emphasizes
that, a person should not be excluded from refugee status unless it is clearly
established
that there are serious reasons for considering that he/she has committed the
acts on which the exclusion is based (Paragraph 1.4.4);
(vi) also emphasizes
that the determination of whether a person should be excluded from refugee
status, requires a careful assessment of the measure of personal involvement of
the refugee claimant in the acts on which the exclusion is based (Paragraph
1.4.4);
(vii)
recommends
that Member States establish formal and confidential cooperation agreements
with the International Criminal Court in relation to cases that may fall under
the scope of the exclusion clauses of the 1951 Refugee Convention (Paragraph
2.2.2).
2. Matters
of concern
Given that the application of the
exclusion clauses normally involves the examination of very complex issues, UNHCR considers that
such examination should not take place in the context of admissibility
procedures or accelerated procedures.
The inappropriateness of the use of
accelerated procedures to handle exclusion issues is further compounded by the
fact that under the Draft Directive on Minimum Standards on Procedures in
Member States for Granting and Withdrawing Refugee Status, appeals against
decisions taken in accelerated procedures need not have suspensive effective.
3. Drafting
suggestions and clarifications
Expulsion for crimes committed
on the territory of the country of
refuge (Paragraph 1.3)
This paragraph refers to the possibility
of expulsion to the country in
which the person fears persecution, in conformity with the exception to the
principle of non-refoulement envisaged in Article 33(2) of the 1951
Convention. In this connection it would be useful to recall that the procedural
guarantees provided for in Article 32(2) of the Convention are also applicable
to such expulsions.
Suspension of examination
of an asylum claim in extradition cases (Paragraph 1.4.2.1) and inadmissible asylum claims (Paragraph
1.4.2.2)
It would be useful to
clarify whether the arrangement envisaged in these paragraphs would concern
only extradition to another EU Member State or to any State, other than the
country of origin.
UNHCR wishes to
further suggest that the references to the country of origin of the asylum
seeker be replaced by a reference to the country(ies) where the asylum seeker
fears persecution.
Administrative
treatment of potential Article 1F cases (Paragraph 1.5)
There is a potential
inconsistency in the paper between section 1.4.3.1 which says exclusion should
not be explored in all cases as a matter of routine and section 1.5.1 which
says that “front-security checks” of all claims for potential
security risks are compatible with international legal obligations. The paper
needs to make clear that security checks should not amount to routine consideration
of exclusion issues in all asylum applications.
2 May 2002