UNHCR’s
Summary Observations on the
Amended
Proposal by the European Commission for a
Council
Directive on Minimum Standards on Procedures in Member States for Granting and
Withdrawing Refugee Status
(COM(2000)
326 final/2, 18 June 2002)
______________________________________________________
I. General Comments
The Office of the United Nations
High Commissioner for Refugees (UNHCR) is pleased to submit the following
comments to the Amended Proposal for a Council Directive on Minimum Standards
on Procedures in Member States for Granting and Withdrawing Refugee Status
(Document COM(2002) 326 final/2) issued on 18 June 2002. UNHCR’s comments
of July 2001 on the original proposal, issued on 20 September 2000, have not
lost their validity in many regards. The present document highlights
UNHCR’s main observations on the amended proposal. They will be followed
separately by more detailed comments in the form of an annotated version of the
proposal.
UNHCR welcomes the fact that some
of its initial observations on the original proposal have been taken into
account. These include: the lifting of certain restrictions on the application
of basic principles and guarantees to accelerated procedures (but not border
procedures); access to legal counsel at all stages of the procedures; and the
provision for necessary (instead of basic) training for all persons involved in
identifying asylum-seekers and determining refugee status. The revision is not
entirely positive, however. The draft seems to have lost considerably in logic
(we refer here to our comments later in this document on the structure of the
proposal, on accelerated procedures and on the safe third country concept) and
in terms of progress towards genuine harmonisation.
UNHCR hopes that Member States will
be prepared to overcome an apparent reluctance to engage in more substantial
procedural harmonisation. The now proposed minimum standards are often not
binding; the exceptions allowed are many; and certain clauses permit Member
States to maintain laws and regulations on important points which may deviate
from the draft Directive. Such provisions can only serve to defeat the purpose
of harmonisation. Certainly in the long run, the costs associated with
legislative adaptation at the national level would be outweighed by the
benefits resulting from an efficient, truly common asylum system.
UNHCR has noted a generally more
restrictive approach reflected in the amended draft Directive. It is concerned
at the broad formulation of powers to detain, the increasingly heavy reliance
on accelerated procedures, the non-applicability of a considerable number of
principles and guarantees in border procedures, and the overly extensive
exceptions to the principle of suspensive effect of appeals. The presentation
in the draft proposal (in Chapter III) is an indication that “regular
procedures” are seen as a rather exceptional process, while accelerated
procedures apply to, and appear to serve mainly to reject or deflect, the
majority of claims lodged in the Member States. Such restrictions seem to
reflect more generally a shift in emphasis away from the efficient and fair
identification of persons in need of protection towards the deterrence of real
or perceived abuse, if not sheer deterrence of arrivals of asylum-seekers.
UNHCR fully shares the concern to
establish more efficient asylum procedures, while fully maintaining principles
of fairness. This is in the interest of all concerned and not least to ensure
the credibility and cost-effectiveness of asylum systems. A much higher degree
of efficiency than is currently the case could be achieved, inter alia, by instituting a
single procedure to determine all claims for international protection with a
strong focus on quality decision-making in first instance, by prioritising the
processing of certain categories of claims within such a procedure and, above
all, by introducing a three-month time limit for all first instance procedures.
If States made the resources available to observe this time limit, there would
be no need for separate legal procedures and devices which moreover raise
protection concerns.
II. Specific Comments
Given that a more extensive
annotated version of the proposed Directive will follow, UNHCR’s comments
here are organised around main principles and do not necessarily follow the
structure of the chapters. Where not indicated otherwise, references to
articles are those of the draft Directive.
Chapter I -
Scope and Definitions
Single Procedure for All
Requests for International Protection
Article 1 limits the scope of the
draft Directive to procedures for granting and withdrawing refugee status.
While Article 3(3) opens the possibility of applying the provisions of the
Directive to applications for subsidiary protection, it is clear that they are
not necessarily to come under the purview of this draft Directive.
UNHCR would like to reiterate that
a single procedure to examine international protection needs would serve to
increase considerably the efficiency of systems in place to identify persons in
need of such protection, in the interests of both the individuals in question
and of cost-reduction. In light of the expert discussions and the broad
consensus on this topic during the Global Consultations on International
Protection, it would be disappointing if the opportunity to introduce a single
procedure would be missed. The examination of a claim under the 1951 Refugee
Convention allows for information to be obtained which could usefully be
considered as relevant not only to the 1951 Convention refugee definition, but
also to subsidiary protection categories. The circumstances that force people
to flee their country are complex and, often, of a composite nature. The
identification of protection needs cannot, therefore, be made in a
compartmentalised fashion. Cases must be examined in a comprehensive manner,
which can best be achieved in a single procedure that provides for a single set
of procedural standards and guarantees. They should also be determined in a
hierarchical manner whereby the first determination is always made in relation
to the 1951 Convention. If the procedures were left separate, however, the same
standards and safeguards would need to apply to identify persons in need for
subsidiary protection.
UNHCR further notes that Article
2(b)
defines an “application for asylum” as a request for
international protection under the 1951 Refugee Convention only. Under
international law, however, the term asylum is broader than the protection
granted under the 1951 Refugee Convention and should incorporate protection
under complementary or subsidiary protection categories. The definition of the
term here and its use elsewhere in the document are therefore unfortunate.
Chapter
II - Basic Principles and
Guarantees
In general, UNHCR is pleased with
the basic principles and guarantees which should apply to any asylum procedure.
Certain concerns remain, which are outlined below.
Access to the Procedure
Article 5(1) indicates that the
failure to apply for asylum as soon as possible may be used as a ground, albeit
not a sole ground when rejecting an asylum claim. UNHCR would like to emphasise
that a great number of valid reasons may delay the filing of a claim, including
for instance the perceived need first to consult with a legal counsellor,
trauma or cultural sensitivities. While a delay in application may therefore be
a factor in consideration of the credibility of a claim, it should not be a
ground for rejection in and of itself, whether as a sole ground or one ground
among others.
Furthermore, while UNHCR does not
object to the requirement that an application be made in person (Article
5(2)),
such a requirement should not be used to hinder access to the procedure itself,
such as may for example occur when the person is in detention.
To ensure that border officials do
not filter applications submitted at the border, UNHCR believes that it
deserves to be made clear that they register and forward the asylum claim to
the determining authority, rather than “deal with applications”, as Article
5(6)
currently stipulates.
Gender Sensitivity and Special
Cases
UNHCR would encourage a more
gender-sensitive approach throughout the Directive. While special measures are
included for separated children (Article 15), the Directive seems to lack
similar special provisions with respect to claims by women, victims of torture
or sexual violence or traumatised persons. Trauma and sensitivities related to
sexual violence or culture may play an important factor in a late application,
for example. They may also lead such persons to acquiesce to being part of a
single claim by the head of a household initially, with an application only
being filed on their own behalf subsequently. Such delays should therefore not
lead to non-consideration of the claim, as provided for, among others, in Article
5(4).
While some special measures with
respect to personal interviews could be inferred from Article 11(2)(a), more explicit
references to measures required to meet the special needs of female
asylum-seekers, victims of torture or sexual violence and traumatised persons,
similar to Article 15, would be useful. These would include an entitlement for
female asylum-seekers to be heard by a female interviewer and interpreter, and
the assurance of in camera interviews in all cases (Article 11(1)) to ensure full
confidentiality and privacy, unless the applicant requests otherwise. Special
measures and exceptions are, in UNHCR’s view, also necessary with respect
to detention (Article 17), including at the border (Article 35). With respect to children,
Article 15 would usefully be complemented with an explicit reference to the
”best interest of the child” principle.
UNHCR would furthermore encourage
the use of gender-neutral wording throughout the Directive.
Right to Stay Pending
Examination of Application
UNHCR appreciates that
asylum-seekers shall be allowed to stay on the territory of Member States (Article
6(1)).
However, UNHCR is concerned that this right to stay is limited to the first
instance procedure, as per Article 2(e). Given the seriousness of treatment
that refugees may be exposed to, the asylum-seeker should be allowed to remain
until a final decision on his or her asylum application is issued, unless specific
exceptions are applicable (see UNHCR’s observations on appeals).
Access to UNHCR
Article 9(1)(c) provides that
asylum-seekers “must not be denied the opportunity to communicate with
the UNHCR”.
In practice, many asylum-seekers will not be able to do so for various reasons.
Asylum-seekers should therefore rather be provided with an effective
opportunity to contact UNHCR.
Effective Communication with
Asylum-Seekers
Where so much depends on the
testimony of the individual, effective information of and communication with an
asylum-seeker is essential. No meaningful asylum procedure is possible if there
is not proper communication on often complex matters. UNHCR is therefore
concerned that Article 9(1)(a) provides for information to be given to
asylum-seekers in a language they “may reasonably be supposed to
understand”, rather than a language that is understood by the
applicant. The same applies to interpretation services (Article 11(2)(b)). Experience shows that
very often, an assumption to the effect that an asylum-seeker speaks and
understands the official language of his or her country of origin may prove
incorrect. Where, however, the difficulty of providing information and the
services of an interpreter in a language that is understood by the applicant
lies in his or her lack of co-operation and bad faith, specific exceptions
could be foreseen. The services of an interpreter should furthermore be made
available whenever necessary, rather than when “reasonable” only, as now stipulated
in Article 9(1)(b).
UNHCR is also concerned that
personal interviews may be omitted if the competent authority cannot provide an
interpreter (Article 10(2)(c). Comments to be made on behalf of an applicant in
lieu of a personal interview because an interpreter is not available, as
provided under Article 10(3), Para. 2, cannot eliminate the fundamental
need for meaningful communication with an applicant.
Access to Information, Legal
Counselling and Assistance
UNHCR welcomes the provision that
asylum seekers shall be afforded the opportunity to consult a legal adviser or
other counsellor on matters relating to their asylum procedure in an effective
manner, as provided for in Article 13(1). UNHCR also welcomes the provision
that legal assistance must be provided free of charge in case of appeals, as
stipulated in Article 13(2). UNHCR would appreciate it if limitations to access
by legal advisors and other counsellors (see Article 14(1)) did not impede the right of
asylum applicants to consult a legal counsellor in an effective manner.
Article 14 (1) foresees limitations to
access to information in an applicant’s file for the asylum-seeker and
his or her legal advisor or counsellor. While Article 7(1)(b) rightly stipulates that
Member States shall ensure that precise country of origin information is made
available to decision-makers, it does not rule out that sources on which such
information is based, may be withheld from the scrutiny of the asylum-seeker or
his/her counsel. Such an approach would leave the asylum-seeker and
decision-maker in unequal positions. UNHCR recommends that information and its
sources may be withheld only in clearly defined cases in which disclosure of
such sources would jeopardise national security or the security of
organisations or persons providing the information in question.
Detention of Asylum-Seekers
The reaffirmation of the general
principle that asylum seekers should not be detained is, in itself, welcome.
However, UNHCR is seriously concerned at the broad formulations of powers to
detain where such detention is “objectively necessary for an efficient
examination of the application” (Article 17(1), Para. 1) or “necessary
for a quick decision” (Article 17(2)). In UNHCR’s view, the above
wording is too vague and general to justify such a severe measure as
deprivation of liberty. It might, for instance, be understood as authorising
the detention of an asylum-seeker for reasons of administrative expedience or
convenience.
UNHCR believes that the guidance
provided in Executive Committee Conclusion No. 44 (XXXVII) of 1986 on
permissible exceptions to the general rule of not detaining asylum-seekers
continues to meet States’ concerns. The exceptions (together with
explanatory guidance quoted from UNHCR’s Guidelines on Detention) which
may be resorted to, if necessary, are:
(i)
to verify identity
This relates to those cases where
identity may be undetermined or in dispute.
(ii)
to determine the elements on which the claim for refugee
status or asylum is based
This statement means that the
asylum-seeker may be detained exclusively for the purposes of a preliminary
interview to identify the basis of the asylum claim. This would involve
obtaining essential facts from the asylum-seeker as to why asylum is being
sought and would not extend to a determination of the merits or otherwise of
the claim. This exception to the general principle cannot be used to justify
detention for the entire status determination procedure, or for an unlimited
period of time.
(iii)
in cases where asylum-seekers have destroyed their
travel and/or identity documents or have used fraudulent documents in order to mislead
the authorities of the State, in which they intend to claim asylum
What must be established is the
absence of good faith on the part of the applicant to comply with the
verification of identity process. As regards asylum-seekers using fraudulent documents
or travelling with no documents at all, detention is only permissible when
there is an intention to mislead or a refusal to co-operate with the
authorities. Asylum-seekers who arrive without documentation because they are
unable to obtain any in their country of origin should not be detained solely
for that reason.
(iv)
To protect national security and public order
This relates to cases where there
is evidence to show that the asylum-seeker has criminal antecedents and/or
affiliations which are likely to pose a risk to public order or national
security.
UNHCR appreciates the concerns of
Member States, as reflected in the draft Directive, to address problems
associated with the abuse of asylum-systems and, in this regard, use detention
as a deterrent. The Office therefore stands ready to further discuss ways in
which these concerns can be met without compromising basic human rights
standards.
It would be useful to provide a
listing of general principles applicable to detention, such as specific
provisions for children and other particularly vulnerable persons, who should
only be detained as a measure of last resort and for the shortest possible
time. Furthermore, UNHCR considers it important for the Directive to provide
for alternatives to detention, such as forms of assignment of residence in
reception centres with enforceable limitations on movement, or reporting
obligations. Guidance in this regard can also be found in the UNHCR Guidelines
on Applicable Criteria and Standards relating to the Detention of
Asylum-Seekers (1999).
Because of the gravity of
detention, UNHCR welcomes mandatory periodic judicial review of the detention
order. It understands Article 17(3) to provide for this without
requiring application by the detainee.
Effect of
Explicit or Implicit Withdrawal of Asylum Application
UNHCR notes that explicit or
implicit withdrawal of an asylum application may lead either to discontinuation
or to rejection of the application. In UNHCR’s view, any withdrawal of an
application should lead to a discontinuation of the examination of the claim,
and a closing of the file, rather than a rejection of the claim.
Chapter III
– Procedures at First Instance
Distinction between
Admissibility and Examination of the Merits of a Claim
UNHCR notes that admissibility
considerations (Article 25) have been integrated into accelerated procedures. This
lack of a clear distinction between questions of admissibility, which are of a
formal nature, and an examination of the merits of the claim, risks causing
confusion between very different stages of the assessment of an asylum claim. UNHCR strongly recommends therefore that
admissibility issues be treated in a separate chapter, clearly distinct from
issues concerning the substance of a claim, as was initially the case. To
enhance the distinction between questions of admissibility and matters of
substance of a claim, UNHCR further recommends a change in terminology: Where
questions of admissibility determine a decision in an asylum procedure, Member
States may declare inadmissible rather than “reject” an application.
This distinct terminology would adequately reflect the fact that a denial of
admissibility is not based on a substantive examination of the claim.
Similarly, on a general note,
Member States may find that assessing a claim that is manifestly well-founded
or unfounded may be more efficient than first examining admissibility issues.
UNHCR appreciates that this possibility is provided for by the draft Directive
and encourages States to consider it on a more general basis.
With regard to the grounds for inadmissibility proposed in the draft
Directive, UNHCR has the following observations:
According to Article 25(d) an asylum application may be considered inadmissible if an extradition
request has been made by an EU Member State or another ‘safe’ third
country. It is UNHCR’s view that the proposed approach is problematic, in
as far as it mixes a decision on an asylum claim with the distinct extradition
procedure. UNHCR has, in the context of the European Commission proposal for a
Council Framework Decision on the European arrest warrant and surrender
procedures between Member States, proposed that in such cases the asylum
procedure should be suspended and, after the resolution of prosecution, whether
by sentence or by acquittal, consideration of the asylum case should be resumed
and brought to its final conclusion. This can be done either in the State in
which the asylum-procedure was initially pending or through transfer of
responsibility for examining the asylum-application to the EU Member State or
other ‘safe’ third country to which extradition takes place.
With regard to Article 25(e) UNHCR notes that an indictment by an international criminal tribunal is
a matter of exclusion and therefore concerns the merits of the case, which
potentially involve complex legal issues. It must therefore be considered in
the substantive stage of the procedure and cannot be left to the admissibility
stage.
UNHCR further notes the inclusion
of the “safe” third country notion under Article 25(c), 27 and 28, and the elaboration of
this notion in Annex I. In UNHCR’s view, the applicability and therefore
the usefulness of this notion is questionable, as countries currently at the
periphery of the Union will soon join the EU.
As the preamble to the 1951 Refugee
Convention and a number of Executive Committee Conclusions make clear, refugee
protection issues are international in scope and satisfactory solutions cannot
be achieved without international co-operation. It is for this reason, that
UNHCR generally welcomes multilateral agreements such as have been agreed by
the EU to lay out the criteria and mechanisms for determining the State
responsible for examining the claim which aim to ensure effective protection
for the persons concerned.
UNHCR’s main concerns with
regard to the proposed “safe” third country concept remain the
following:
Pursuant to Article 28 (1)(a) Member States may seek
to transfer to a third country the responsibility for considering an asylum
request in cases where the applicant “has had an opportunity to avail
himself/herself of the protection of the authorities of that country”.
UNHCR considers it inappropriate to derive the third country’s
responsibility from the mere presence of the applicant there. Mere presence is
often the result of fortuitous circumstances. UNHCR therefore recommends
deletion of the last phrase of Article 28 (1)(a).
UNHCR equally expresses a
reservation to the provision that Member States may deny an applicant access to
the procedure – and remove him to a third country – solely because,
pursuant to Article 28 (1) (b) “there are grounds for considering that
this particular applicant will be admitted (...)”. UNHCR takes the view
that removal of an asylum-seeker to a
third country should not take place unless the following conditions are
met:
· that the third country
has expressly agreed to re-admit the person to its territory and to consider the
asylum application; hence, the assurance that the third country agrees to
admit the applicant to its territory and to consider the asylum claim
substantively should be substituted for the draft text;
· that the third country
will protect the asylum-seeker against refoulement and will treat him or
her in accordance with recognised basic human rights standards until a durable
solution is found, namely that the country is “safe” for the
particular applicant; in this context, accession to the 1951 Convention and its
1967 Protocol, and actual State practice and compliance remain a critical factor;
· that the applicant has
already a connection or close links with the third country so that it appears
reasonable and fair that s/he be called upon to first request asylum there; in
this respect, the well-founded intentions of the asylum-seeker should as far as
possible be taken into account.
Without these safeguards,
asylum-seekers may easily find themselves “in orbit”. Whether a
country is “safe” or not, is not a generic question which can be
answered for any asylum- seeker who has set foot in that particular country.
The analysis whether the asylum-seeker can be transferred to a third country
for determination of the claim must be made on an individualised basis. It is
for this reason, that UNHCR cautions against the use of lists of countries. It
follows that UNHCR has strong reservations about Article 27 of the proposal. The
burden of proof does not lie with the asylum-seeker to establish that the third
country is unsafe, but with the country that wishes to remove the asylum seeker
from its territory.
The “Norm” of
Accelerated Procedures
It is telling that the entire
chapter on first instance decisions of the proposed Directive refers to
accelerated procedures only. In this sense, the chapter heading foreseen in the
draft Directive does not appear appropriate.
Member States have an interest in
ensuring efficient procedures more generally, rather than introducing a variety
of parallel procedures. An important means to ensure efficiency is to set time
limits in general for all procedures, particularly in first instance
procedures. UNHCR therefore proposes a general time limit of three months to
reach a decision on an asylum application at the first instance. This time
limit may be extended for specified reasons such as the complexity of a case.
However, experience shows that the large majority of asylum claims tend to
originate from nationals of a limited number of States, with regard to which
expertise in country of origin information can be established. Such a general
time limit is, in UNHCR’s view, more effective than the specific one of Article
24.
Efforts to combine speed and
quality decision-making would also reduce the number of appeals, which tend to
be particularly lengthy. In some States this would probably require additional
resources and training. A focus on an inquisitorial process rather than an
adversarial one would also be useful to elicit the relevant information in a
more co-operative manner, based on mutual trust.
As outlined in our earlier
comments, an asylum procedure can be accelerated in a number of ways,
including: prioritising specific categories of applications; establishing
shorter, but reasonable, delays for appeals; reducing the time required for the
completion of the appeals process; and simplifying and/or prioritising appeals
and reviews. Instead of establishing separate accelerated procedures, priority
within the regular procedure could be given to the examination of defined
categories of applications, such as manifestly unfounded and well-founded
claims, and those from unaccompanied minors/separated children seeking asylum
and other vulnerable persons.
Manifestly well-founded claims deserve early attention
as these concern persons whose cases not only can be dealt with quickly and
efficiently, but who have been so clearly exposed to serious harm that they
merit being assured of safety and stability as early as possible.
With respect to manifestly
unfounded claims, UNHCR notes that Article 29(a) does not take into account
considerations relevant for subsidiary protection. UNHCR wishes to recall the
Executive Committee Conclusion No. 30, which refers to applications obviously
without foundations as those “not related to the criteria for the
granting of refugee status … nor to any other criteria justifying the
grant of asylum”. As noted above, asylum in this sense is broader than
refugee status under the 1951 Refugee Convention only.
UNHCR disagrees with Article
29(c),
which provides for an accelerated procedure for an applicant who “is
prima facie excluded from refugee status (...)”. In UNHCR’s
experience, decisions on exclusion from refugee status are complex and demand a
careful examination of the asylum claim, not only because of the grave
consequences for the applicant but in order that all relevant evidence can be
elicited and considered as part of the determination process. UNHCR would thus
advise against adoption of this paragraph.
Under Articles 30 and 31, and Annex II an application may also
be deemed manifestly unfounded if the applicant is from a “safe
country of origin”. UNHCR acknowledges that applications for asylum
may be made by persons coming from countries in which there is in general terms
no serious risk of persecution. UNHCR has not objected in principle to the use
of this notion as a procedural tool to assign these applications to accelerated
procedures. It would, however, be important to spell out more clearly in
Article 31, that the use of this procedural tool does not increase the burden
of proof on the asylum-seeker and that it remains essential to fully assess each
individual case on its merits.
Article 32 of the draft Directive
describes other grounds for processing applications for asylum under an
accelerated procedure. According to UNHCR’s Executive Committee
Conclusion No. 30 (XXXIV) of 1983, systems must be able to adjust to deal
expeditiously with cases of clear fraud, abuse and misrepresentation. Article
32 seems to describe claims falling broadly into these categories, but concerns
with regard to some of the provisions, as outlined in earlier comments, remain.
In particular, Article 32(h) seems outside the scope of cases envisaged in
Executive Committee Conclusion No. 30.
Notwithstanding the above, UNHCR
considers it important to bear in mind that a key consideration for
accelerating the processing of an asylum claim is a practical one: the claim
must lend itself to a prompt examination and decision.
Separate Border Procedure
UNHCR notes that provisions on the
border procedure, which are separate and parallel to regular and accelerated
procedures, are included at the behest of Member States. There is no reason for
due process of law requirements in asylum cases submitted at the border to be
considerably different from those submitted within the territory. Given the
importance of personal testimony in determining asylum claims, the lack of a
requirement for a personal interview is of special concern. UNHCR recommends
inclusion in Article 35(1) of the basic safeguards contained in the Articles 7, 8(1),
9, 10(1), 11, 12 and 16(3) of the draft Directive.
Moreover, given that a stay at the
border entry point or transit zone is generally equivalent to detention and
cannot be considered a conducive environment for refugee status determination,
the stay of an asylum-seeker at the border should be for the shortest possible
time, and subject to judicial review. It would be particularly important to
prioritise manifestly unfounded and well-founded claims in procedures initiated
at the border and to provide for exceptions and special measures for vulnerable
persons and minors, while fully respecting the principle of family unity.
Chapter IV
– Appeals Procedures
Non-Suspensive Effect of Appeals
Procedures
UNHCR notes with satisfaction that
applicants have the right to an effective remedy of a decision on their asylum
claim, in as far an appeal by a “court of law” (an independent and
impartial tribunal or body) is provided for, with the authority to review both
points of fact and law.
UNHCR is concerned about the
extensive exceptions to the principle of suspensive effect of appeals against a
negative decision in cases enumerated in Articles 39(2), 39(3), 39(4) and
40(1) and (3). If an applicant is not permitted to await the outcome of an appeal
against a negative first instance decision on the territory of the Member
State, the remedy against that decision is ineffective. Even in manifestly
unfounded cases as defined in Executive Committee Conclusion No. 30, there must
be some form of review. UNHCR would go along with the proposal to limit the
automatic suspensive effect of an appeal in clearly defined manifestly
unfounded cases, provided a court of law or another independent authority has
reviewed and confirmed the denial of suspensive effect, taking into account the
chances of an appeal.
In UNHCR’s view, the safeguards
set out in the preceding paragraph form a fundamental guarantee, given the
potentially serious consequences of an erroneous determination in the first
instance. This requirement should be seen in the light of the need to respect
the principle of non-refoulement, exceptions to which are narrowly
circumscribed. That principle should be observed in all cases, regardless of
whether a negative decision is taken in an admissibility procedure instituted
for the application of “safe” third country policies or in a
substantive procedure.
In light of the above, UNHCR is
concerned at the exceptions provided in Article 39(2), 39(4) and proposes to amend Article
39(3)
to apply only to cases determined to be manifestly unfounded. The exceptions to
even a review of a decision not to grant suspensive effect, provided for under Article
40(3)(a), (3)(b) and (3)(d) should, in UNHCR’s view, be deleted.
III. Conclusion
UNHCR appreciates the resolve of Member States of
the European Union and the initiative of the Commission to harmonise their
asylum procedures within the framework of the Amsterdam Treaty. The adoption of
a Community instrument on minimum standards on procedures for granting and
withdrawing refugee status will, hopefully, result in fairer and more efficient
asylum procedures throughout the Union.
UNHCR has concerns, however, about an approach to
harmonisation which accommodates lower standards found in the domestic
legislation and practice of individual Member States. The risk of downward
harmonisation will, inevitably, be higher if the Directive contains significant
scope for derogation or wide margins of discretion. It is UNHCR’s fervent
hope that best practice, in full conformity with international standards, will
be allowed to prevail.
It is with this concern in mind that UNHCR has
offered the foregoing observations. On some aspects of the proposal, such as
the notions of “safe third country” and “safe country of
origin” or accelerated procedures, UNHCR has noted that the emphasis on
procedural devices risks overshadowing the basic concepts and principles which
refugee status determination is supposed to uphold.
UNHCR is, nonetheless, very conscious of the need to
establish efficient procedures, not least to enhance credibility in the asylum system. Various
proposals outlined above would, in UNHCR’s view, have the important
advantage of greater efficiency without sacrificing fairness or principle. They
include amongst others:
· the institution of a single procedure to
determine all claims for international protection to avoid separate procedures
having to be initiated for subsidiary protection upon final rejection under the
1951 Refugee Convention;
· specific short timelines to be set for
all first instance procedure decisions;
· prioritization of claims within the
regular procedure for certain types of cases, such as manifestly unfounded and
manifestly well-founded cases, as well as special cases, such as children;
· a strong focus on quality decision-making
in the first instance to reduce the number of appeals, with appropriate
resources and training;
· limitation of appeals to one level on
both facts and points of law;
· acceleration of appeals processes for
manifestly unfounded cases, including reduced deadlines for filing appeals;
· allowance of a limited number of
well-defined exceptions to the principle of (automatic) suspensive effect of
appeals, with the decision not to grant suspensive effect being checked and
authorised by a court of law.
To further harmonisation within the EU in asylum
decision making, UNHCR would also encourage the establishment of an EU-wide
advisory board, to monitor decision-making of the administrative authorities
responsible for first instance decisions and gradually reduce divergence(s) in
jurisprudence. UNHCR would be willing to provide its expert services in the
establishment and functioning of such a body. Together with an efficient system
of up-to-date information on countries of origin to be put at the disposal of
national decision-makers, such an advisory board could support the
harmonisation of diverging interpretations of the 1951 Refugee Convention or
the Qualification Directive.
UNHCR looks forward to a continuing dialogue with
the Commission and Member States on these as well as other topical issues that
are being addressed by other, closely related EU instruments.
UNHCR, Geneva
January 2003