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The proposed Directive on asylum procedures

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07 February 2001

Submission by Statewatch on the on the proposed Directive on asylum procedures (11622/00) to the House of Lords Select Committee on the European Union, Sub-Committee "E"

Commission proposal (COM (2000) 578, 20 Sept 2000)

Context of the proposal

1. Statewatch welcomes the Commission's proposal for a directive on this subject well before the five-year deadline for adoption of Community legislation on this issue. In addition, we welcome the prior consultation beforehand on a Commission discussion document, although it would have been preferable for the Commission to publish this document as a COM document, rather than a SEC document, and then issue a call for public consultations, followed by publication of the comments received. This more inclusive approach, applied by the Commission to many internal market proposals, would also be preferable to apply to most or all other areas of EU law, including justice and home affairs law in particular.

2. However, it would have been preferable for the Commission to have presented its proposals following, or in conjunction with, proposals on the material scope of asylum law (the definition of 'refugee'), on replacement of the Dublin Convention and on reception conditions for asylum-seekers. This is because of the close connection between these matters, and the justified resistance of national courts to the idea that asylum-seekers should be able to apply for recognition of refugee status in only one Member State, in the absence of harmonisation of core principles of material and procedural asylum law. We hope that, since the Commission's proposals on other matters are expected shortly, the Council and the EP will have the ability to examine all these matters together.

Scope of the proposal

3. In the longer-term, cases of 'complementary protection' cannot feasibly be left outside the scope of Community rules on asylum procedures. This is because the creation of a Common European Asylum System, as recognised in the Commission's recent communication on the subject, will necessarily have to address law on complementary protection as well as the definition of 'refugee'. But we agree that would be premature to require Member States to apply the same procedures as apply to applications for recognition of status under the Geneva Convention, as long as the rules on such status have not been harmonised. But it would be better for the proposal to state that in principle it does apply to such claims, with a possibility for Member States to 'opt out' of its application to such claims pending Community harmonisation of the core aspects of the law on subsidiary protection.

Content of the proposal: Chapter II (Basic Principles)

4. The wording of Article 5 of the proposal conflicts with the principle of non-refoulement as set out in the Geneva Convention and as it emerges from the case-law on the ECHR. The right to reside in a Member State should not be dependent on whether a Member State's authority has taken a decision, but on whether the Geneva Convention or ECHR restrictions on refoulement would apply to any expulsion or removal.

5. Many of the other provisions in this Chapter are valuable and welcome. However, there are several points which should be improved. First, the potential for restriction on access to persons in detention, set out in Article 9(2) appears rather open-ended and should be more precisely defined, if not eliminated altogether. Second, there is no convincing reason for limiting the right of access by legal advisers only to the personal interview on the substance of the claim (Article 9(3)), particularly as the initial comments by an asylum-seeker may be used as evidence of alleged inconsistency and/or used to claim that the asylum claim is inadmissible (with severe consequences for the asylum-seeker). Third, given the complexity of asylum law, asylum-seekers should have legally aided access to legal advisers at every stage, not just following an adverse decision (Article 9(4)).

6. Fourth, Article 11 is welcome up to a point, but should go further and clarify more precisely the reasons for possible detention, including an exhaustive list of reasons for which an asylum-seeker can be detained. The Article should also make clear that reviews should be undertaken by an independent authority capable of examining the merits of the decision.

Chapter III: Admissibility

7. The proposed rules on 'safe third countries' are a welcome improvement on existing EU rules, but could be clarified. Article 22 should be amended so that (a) only applies where the applicant both had connections with a third country and could have taken the opportunity in practice to apply for recognition as a refugee there. Part (b) should be strengthened so that it only applies where it is certain that the applicant will be returned to the country in question; otherwise the applicant could end up in limbo, with a chance of refoulement. The Annex should be improved so that only countries which have actually ratified the Geneva Convention are covered, because it is hard to accept the assertion that a country takes refugee status seriously if it has not ratified the Geneva Convention. More broadly, this Chapter should recognise more fully the principle of the relevant UNHCR Executive Committee Conclusion that the asylum-seeker's choice of country of application should be respected 'as far as possible'.

Chapter IV: Procedures

8. There are grave problems with the wording of Article 28. The proposed standards on 'manifestly unfounded' claims go well beyond the standards set out in a UNHCR Executive Committee Conclusion on the same subject. In addition, the case law of the ECHR and the UN Committee Against Torture does not suggest that great account can be taken of the factors listed here. In fact, this case law suggests that a full procedure must always be applied in cases of torture or inhuman or degrading treatment.

9. In addition, we have grave doubts about the 'safe country of origin' principle. Applying this principle runs the risk that asylum applications are not being assessed individually and impartially, as the Directive requires.

Chapter V: Appeals

10. The possibility of derogations from suspensive effects of an appeal is highly objectionable. It renders an appeal largely irrelevant for an asylum-seeker and raises the possibility of a breach of the non-refoulement principle. The wording of Article 33(2) makes no reference to the protection granted by Article 3 ECHR, in particular in cases addressed by Article 33(2)(c) (see Chahal v. UK and Ahmed v. Austria). In 'safe third country' cases, even the possibility of suspensive effect pending a request for suspensive effect is denied, rendering any challenge at all to the initial decision of inadmissibility entirely pointless.

11. The guarantee of a third stage of the procedure is welcome, but the lack of harmonisation as regards suspensive effect of such appeals is not. Again there is a potential breach of the non-refoulement principle.

General observations

12. The Commission's proposal is due, according to the recent Commission communication on asylum, to be followed up by a further measure later, as part of the second stage of creation of a Common European Asylum System. We recognise that such a two-stage approach was endorsed by the Tampere European Council. However, the first stage must at least harmonise key aspects of procedural rules, or make sure that they are comparable and equivalent, otherwise there is a risk of a 'race to the bottom' in asylum law, as Member States seek to change their laws so that the lowest common denominator applies. This is particularly relevant as regards asylum procedural law, which plays a critical role in the determination of many asylum cases in practice.

13. There are some national rules (for example, whether national authorities can appeal against a positive determination of refugee status, or the application of standard rules to Convention refugee and complementary protection claims) which it is not necessary to harmonise immediately. But differences as regards core issues like the concept of 'manifestly unfounded' applications and the existence of suspensive effect runs a clear risk of 'race to the bottom'. Here the EC should aim to harmonise at the highest applicable standard, not leave the matter to national discretion with the likely result the application of the lowest standard.

14. Finally, the proposed Directive pays insufficient regard to the role of the ECHR as a back-up to the Geneva Convention in certain protection cases. The role of the ECHR needs to be expressly spelt out to avoid any confusion by national authorities or legal advisers regarding the application of the proposed Directive. As currently drafted, the Directive would lead to violation of the ECHR and of the standards promulgated by the UNHCR Executive Committee on certain matters, most particularly the concept of 'manifestly unfounded' applications.

Statewatch submission prepared by Steve Peers, Reader in Law, University of Essex.