EUROPEAN PARLIAMENT

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Session document

FINAL A5-0123/2000

19 April 2000

REPORT

on the Commission working document entitled 'Towards common standards on asylum procedures' (SEC(1999) 271 – C5-0157/1999 - 1999/2148(COS))

Committee on Citizens' Freedoms and Rights, Justice and Home Affairs

Rapporteur: Ingo Schmitt

RR\411473EN.doc 1/24 PE 285.900

EN EN CONTENTS Page

PROCEDURAL PAGE ...... 4

MOTION FOR A RESOLUTION ...... 5

EXPLANATORY STATEMENT...... 10

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS

AND THE INTERNAL MARKET...... 17

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EN EN PROCEDURAL PAGE

By letter of 5 March 1999 the Commission forwarded to Parliament its working document entitled 'Towards common standards on asylum procedures' (SEC(1999)0271 - 1999/2148(COS)).

At the sitting of 4 October 1999 the President of Parliament announced that she had referred the working document to the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs as the committee responsible and the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy and the Committee on Legal Affairs and the Internal Market for their opinions (C5-0157/99).

The Committee on Citizens' Freedoms and Rights, Justice and Home Affairs appointed Ingo Schmitt rapporteur at its meeting of 25 October 1999.

It considered the working document and the draft report at its meetings of 27 January 2000, 23 February 2000, 4 April 2000 and 18 April 2000.

At the last meeting it adopted the motion for a resolution by 27 votes to 4, with 4 abstentions.

The following were present for the vote: Graham R. Watson, chairman; Enrico Ferri, vice- chairman; Ingo Schmitt, rapporteur; Rolf Berend, (for Hartmut Nassauer pursuant to Rule 153(2)), Christian von Boetticher, Michael Cashman, Charlotte Cederschiöld, Carmen Cerdeira Morterero (for Olivier Duhamel), Ozan Ceyhun, Carlos Coelho, Thierry Cornillet, Gérard M.J. Deprez, Giuseppe Di Lello Finuoli, Raina A. Mercedes Echerer (for Alima Boumediene-Thiery pursuant to Rule 153(2)), Markus Ferber (for Hubert Pirker pursuant to Rule 153(2)), Daniel J. Hannan, Bertel Haarder (for Jan-Kees Wiebenga), Anna Karamanou, Timothy Kirkhope, Dieter-Lebrecht Koch (for Bernd Posselt pursuant to Rule 153(2)), Ole Krarup, Alain Krivine (for Pernille Frahm), Baroness Sarah Ludford, Minerva Melpomeni Malliori (for Gianni Vattimo), William Francis Newton Dunn (for Jorge Salvador Hernández Mollar), Arie M. Oostlander (for Marcello Dell'Utri), Elena Ornella Paciotti, Reinhard Rack (for Mary Elizabeth Banotti pursuant to Rule 153(2)), Martin Schulz, Sérgio Sousa Pinto, Joke Swiebel, Maurizio Turco (for Marco Cappato), Anne E.M. Van Lancker (for Anna Terrón i Cusí), Johannes Voggenhuber (for Patsy Sörensen) and Brigitte Wenzel-Perillo (for Ewa Klamt pursuant to Rule 153(2)).

The opinion of the Committee on Legal Affairs and the Internal Market is attached; the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy decided on 11 January 2000 not to deliver an opinion.

The report was tabled on 19 April 2000.

The deadline for tabling amendments will be indicated in the draft agenda for the relevant part-session.

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EN MOTION FOR A RESOLUTION

European Parliament resolution on the Commission working document entitled 'Towards common standards on asylum procedures' (SEC(1999) 271 – C5-0157/1999 – 1999/2148(COS))

The European Parliament,

– having regard to the Commission working document entitled 'Towards common standards on asylum procedures' (SEC(1999) 271 – C5-0157/1999),

– having regard to the Treaty establishing the European Community, Title IV, Article 61 ff.,

– having regard to the Treaty on European Union, in particular Articles 2 and 6 thereof,

– having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted on 4 November 1950,

– having regard to the Geneva Convention of 28 July 1951 relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967,

– having regard to the Universal Declaration of Human Rights of 10 December 1948,

– having regard to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 10 December 1984,

– having regard to the Council resolution of 20 June 1995 on minimum guarantees for asylum procedures1,

– having regard to the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities,

– having regard to the action plan on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice2, adopted by the Vienna European Council of 11 and 12 December 1998,

– having regard to the conclusions of the Tampere European Council of 15 and 16 October 1999, in particular points 2, 3, 4, 8, and 11 to 27 thereof,

– having regard to its earlier resolutions on immigration and asylum,

– having regard to the discussions now taking place with a view to drawing up a Union Charter of fundamental rights,

1 OJ C 274, 19.9.1996, p. 13. 2 OJ C 19, 23.1.1999, p. 1.

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EN – having regard to Rule 47(1) of its Rules of Procedure,

– having regard to the report of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs and the opinion of the Committee on Legal Affairs and the Internal Market (A5-0123/2000),

A. whereas the preparatory discussions on Community legislative measures in the field of asylum policy should be conducted on as factual a basis as possible and remain free of ideological considerations; whereas, in that process, the requirements of the national authorities responsible for practical implementation and the needs of those seeking recognition of their refugee status must be taken into account,

B. whereas, before considering future legislative instruments, the Community must first address itself exhaustively to the real situation as regards the right of asylum in the Union Member States; whereas that situation can be described as one in which asylum-seekers are treated differently and unequally in a number of respects, especially where reception conditions and the criteria governing recognition of refugee status are concerned,

C. whereas it can be observed in a great many cases that persons are wrongfully attempting to lay claim to the right of asylum; whereas in such cases the aim is to secure entry to countries with a view to immigration,

D. whereas the legal right to minimum protection enshrined in the Geneva Convention relating to the Status of Refugees is also binding on the EU, in accordance with Article 63(1) of the EC Treaty,

E. whereas, when drawing up rules to govern the common European asylum system, reference should be made not only to the Geneva Convention, but also to other international agreements and the new Treaty establishing the European Community, as amended by the Treaty of Amsterdam,

F. whereas in addition, as far as external relations are concerned, a policy of peace-keeping, conflict prevention, and elimination of human rights violations should be promoted; whereas the UNHCR and NGOs must be called upon to play a role in determining why people flee their country and in drawing up reports on the situation in countries of origin,

G. whereas it is essential to produce comparable, reliable statistics on asylum in the Member States and applicant countries; and having regard to the valuable work carried out to date in this area by the UNHCR,

H. whereas the new harmonised asylum procedure should not be based solely on the premiss that administrative and judicial activities have to be expedited, but should likewise be informed by a further central concern, namely the need to preserve the dignity of asylum- seekers,

I. whereas asylum applications are not spread evenly among the Union Member States and whereas a handful of countries consequently have to bear most of the burden of accommodating refugees; whereas, therefore, in addition to harmonising Union asylum procedures, a policy of burden sharing should likewise be pursued,

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EN 1. Urges the Commission to rationalise the schedule of its legislative proposals to be submitted pursuant to Article 63(1) and (2) of the EC Treaty by employing the means specified below:

(a) a Directive to be adopted within two years on the standards for reception of asylum- seekers (especially as regards financial aid, accommodation, and medical help), the conditions to satisfy in order to qualify for refugee status, and the procedure for granting or withdrawing that status;

(b) a Regulation to be adopted within two years to 'Communitarise' the Dublin system, aimed at seeking more effective ways to determine the responsibility of Member States and meeting any wish that a refugee might have, for family reasons, for the recognition procedure to take place in a given Member State of his choice; this Regulation should likewise include provisions to enable burdens to be shared fairly among the Member States; the provisions of the Eurodac Regulation, to be adapted as and where appropriate, should also be incorporated in the longer term;

(c) a Directive to grant temporary protection to displaced persons, civil war refugees, de facto refugees, and other persons in need of international protection, to whom longer- term protection and a right of abode must be accorded where necessary; this instrument could be submitted within three years and should likewise lay down the principle of fair and appropriate burden sharing;

(d) the rules on equal and appropriate sharing of efforts for displaced persons and de facto refugees could either be included in the Directive referred to in point (c) or be the subject of a specific Regulation;

2. Takes the view that entry of asylum-seekers within the meaning of the Geneva Convention relating to the Status of Refugees, migration for economic or other reasons, and temporary admittance of refugees from crisis areas must be treated as entirely separate matters;

3. Calls for the inclusion of the following basic procedural rights and requirements in any future common asylum procedure:

- the right of access to the asylum procedure,

- the right to a personal interview in order to assess all the circumstances of the application,

- the right to remain on the territory of the asylum country until a final decision has been taken,

- the right to an appeal to a court or a review body, with suspensive effect, in case of a negative decision;

4. Calls for the inclusion of the following obligations on the part of the authorities in any future common asylum procedure:

- to undertake an impartial and objective examination of the application by a fully

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EN qualified authority,

- to communicate decisions to the applicant in writing and in a language he or she understands,

- to provide the applicant at all stages of the procedure with access to legal counsel, and, where necessary, interpreters, as well as an opportunity to contact the UNHCR and non-governmental organisations,

- to make provision for special arrangements within the procedure for groups with particular needs such as (single) women asylum-seekers, victims of torture, sexual violence, unaccompanied minors, the handicapped and elderly;

5. Believes that access to territory and to the asylum procedure are of critical importance to the future common asylum system, in order to guarantee protection to those seeking asylum on the territory of Member States;

6. Calls on the Member States to compile a common list, binding on all Member States, of countries subject to the visa requirement and to update that list at regular intervals; believes that a similar procedure should be followed as regards 'safe third countries and countries of origin', and past frictions among the Member States dispelled where these countries are concerned; considers that it would be desirable, moreover, for the EU and third countries to conclude agreements whereby the latter would promise to readmit rejected asylum-seekers;

7. Calls on the Member States to give further thought to the concepts of 'safe third country' and 'safe country of origin';

8. Urges the Member States to provide sufficient complements of suitably qualified personnel and ensure that all necessary up-to-date information required in order to process asylum applications is made accessible; believes that, to ensure that applications are processed in the same way, standard criteria must be laid down to provide a basis on which to assess the situation in asylum-seekers' countries of origin; considers in addition that further training of staff should be encouraged (exchange of officials and experiences in the various authorities, comparison of working methods and practices);

9. Notes that the conditions for entry to the Member States and reception arrangements, especially as regards financial support, accommodation, and medical care, need to be harmonised, having due regard to the dignity of asylum-seekers;

10. Supports the Commission proposal to harmonise the right of asylum in two stages but points out that, even at the first stage, procedural rights and steps in the EU should all be regulated in the same way and with binding force; considers that the scope for discretion remaining for Member States should be confined to matters that cannot undermine the goal of a harmonised right of asylum;

11. Takes the view the Community-wide right of asylum which the Union is endeavouring to establish should be laid down in a clear, freely accessible, and readily comprehensible system of law;

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EN 12. Calls for qualification procedures in general to be shortened and simplified, without neglecting the need for careful examination; takes the view that expedited or accelerated procedures should only be applied to those cases that are manifestly unfounded; considers further that an accelerated procedure should be permissible if applications are plainly not justified on account of political, religious, or racist persecution;

13. Believes that the concept of a 'manifestly unfounded application' should be clearly defined so as to ensure that it is not interpreted in such a way as to give rise to abuses and prevent Member States from using this legal construct to rid themselves of their asylum-seekers without properly considering their cases;

14. Notes that the legislative proposal should contain rules on the presentation of evidence that take the special circumstances of an asylum procedure sufficiently into account; believes that substantiation should invariably be incumbent on an asylum-seeker but the burden of proof should rest with him only in principle;

15. Takes the view that in principle, unless there has been a real change in the circumstances or new evidence has come to light, asylum-seekers should be permitted to apply for asylum once only on EU territory; believes, furthermore, that permission to open an admissibility procedure should be refused if , within the meaning of the Geneva Convention, the asylum-seeker already enjoys sufficient protection in another country;

16. Takes the view that, when an asylum application has been turned down, the rejected asylum-seeker should not be deported if his life would be in danger in his country of origin; believes that special procedural safeguards should, in addition, be laid down for especially vulnerable groups such as torture victims, persons who have been sexually assaulted, unaccompanied under-age children, and pregnant women; considers that special measures should likewise be taken for those who have been persecuted by parties other than the State;

17. Points out that the necessary steps should be taken to help recognised refugees to integrate and combat discrimination against them and to guarantee basic social security and health care for rejected asylum-seekers for as long as they remain on Union territory.

* * *

18. Instructs its President to forward this resolution to the Council and Commission.

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EN EXPLANATORY STATEMENT

I. INTRODUCTION

The term 'refugee' has been defined in Article 1(A)(2) of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951.

In addition, Article 14 of the Universal Declaration of Human Rights states that 'Everyone has the right to seek and to enjoy in other countries asylum from persecution'.

The Geneva Convention has given rise to a substantial body of legal precedents and differing interpretations at international level.

Similar differences of interpretation are likewise to be found within the European Union, albeit to a lesser extent.

The resulting disparities in the treatment of asylum-seekers raise several problems. They are contrary to the fundamental principles and aims of the EC Treaty. (In Title IV (Articles 61 and 63) asylum policy is listed among the measures going hand in hand with free movement of persons to be implemented with a view to establishing an area of freedom, security, and justice). They lead to inequalities in terms of Member States because some countries have made protection subject to more favourable conditions. Furthermore, they run counter to the interests of asylum-seekers because their prospects of securing protection vary from one country to another. The inconsistent treatment of asylum-seekers also results in a situation in which a small number of Member States have to shoulder most of the burden.

II. ASSESSMENT

A. Institutional aspects

The main binding reference texts are the above-mentioned Geneva Convention and the Protocol thereto, signed in New York on 31 January 1967, the Dublin Convention concluded between the European Community Member States on 15 June 1990, the Schengen Implementation Agreement of 19 June 1990, and the Treaty on European Union and the Treaty establishing the European Community as amended by the October 1997 Treaty of Amsterdam.

A further instrument to mention is the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.

B. Statistical aspects

The key trends regarding asylum applications in the Union in recent years have been as follows:

1. the figures rose constantly between 1988 and 1992;

2. from 1993 until at any rate the beginning of 1997 the trend moved downwards (between 1993 and 1997 the number of asylum applications in the EU fell from 672 000 to

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EN 227 000);

3. the figures have again been tending to rise since 1997 (the number of asylum-seekers in the United States in 1998 dropped to less than half the previous year's figure). In 1999, 366 000 asylum-seekers were admitted to the EU (in other words 66 000 or 20% more than in the preceding year), a total equivalent to 81% of all asylum-seekers admitted to industrialised nations.

There are several possible explanations for these variations, namely the fighting in former Yugoslavia and other European regions and Mediterranean countries or the Middle East and, moreover, the reforms implemented in the Member States as regards procedures for determining refugee status, visa policy, and so forth.

The figures also show that the percentage of persons qualifying as refugees has been tending to fall under all the arrangements applied. In the case of the 'Geneva Convention' arrangement the rate stands at approximately 5% to 10% (provisional findings for ten EU Member States for the first ten months of 1999 announced at a recent meeting of the Centre for Information, Discussion and Exchange on Asylum (CIREA)).

The fact that comparable cases are treated differently from one country to the next seems to demonstrate that the qualification rate has more to do with the political context in the countries concerned than with the actual substance of the applications submitted.

The European figures show in addition that the breakdown of asylum applications is very uneven within the Union.

The countries that received most asylum applications in the first nine months of 1999 were, in descending order: Germany, the United Kingdom, the Netherlands, Belgium, and France3.

Germany is thus the main country of destination in the Union. If the estimates prove correct, it received at least a third (over 120 000) of all asylum applications in Europe in 1999 (thought to number nearly 366 000).

In view of the inequalities, it would seem that the procedures for granting legal refugee status and reception conditions for asylum-seekers need to be harmonised as a matter of urgency. Asylum applications cannot be spread evenly throughout Europe unless the conditions of protection for asylum-seekers are the same in all Member States.

Inadequate laws and practices

The right of asylum is laid down in different ways in the constitutions (Germany and Italy), legislation, and administrative, police, and judicial practices of the Member States.

The variety of arrangements, in terms of both nature and substance, creates a number of difficulties including those described below.

3 Source: UNHCR, 'Asylum applications statistics in Europe. Third quarter 1999', 27 October 1999.

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EN The principal difficulties and imperfections identified by those actively involved (for instance lawyers) and international organisations (primarily the UNHCR) and NGOs can be said to be due to the following factors:

- problems in interpreting the law (in some countries, for example, an asylum application has to be made 'immediately' on entry into the country);

- the legal status of refugees or de facto refugees in Europe varies and is not always clearly regulated. Especially where the forms of subsidiary protection are concerned, the authorities have considerable scope for discretion;

- asylum-seekers awaiting a decision or whose application has been rejected (this latter case applies especially to certain northern European countries) are held in custody, even when they have been tortured in their home country; alternatively, their presence is simply 'tolerated', but they are denied social security and have no prospect of entering the labour market;

- the systems for identifying applicants are inadequate (the language that applicants speak, for example, serves as an indication to identify them).

III. PRIORITY ISSUES

The Vienna action plan stipulates that the measures required to implement the Treaty must be adopted within two or in some cases five years. Within two years of entry into force of the Treaty of Amsterdam:

- countries of origin must be assessed with a view to determining the best approach to each country;

- the Dublin Convention must be enforced more effectively, and its legal basis converted to make it a Community instrument;

- Eurodac must be transposed into Community law;

- minimum standards must be adopted to govern the procedures for granting or withdrawing refugee status;

- restrictions must be imposed to limit secondary movements;

- minimum reception standards must be laid down;

- a study must be conducted with a view to introducing a common European procedure.

Within five years of entry into force of the Treaty of Amsterdam:

- minimum standards must be adopted for the purposes of determining whether persons qualify as refugees and applying subsidiary protection.

The Tampere conclusions (point 13) noted that the Union and the Member States set great

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EN store by absolute respect of the right of asylum and that the European Council had agreed to work to establish a common European asylum system (with a view, in the short term, to determining which country should be responsible for examining an asylum application, laying down common standards for a fair and efficient asylum procedure and common minimum conditions for the reception of asylum-seekers, and providing greater consistency in the rules governing qualification for and the essential features of refugee status). The longer-term goal should be to establish a common asylum procedure and uniform status to apply throughout the Union to those who had been granted asylum. The Commission was requested to draw up a communication on that subject within a year.

In addition, a draft Council decision is currently in the process of being approved to enable the Commission to negotiate an agreement with Norway and Iceland for the purposes of determining which country should be responsible for examining an asylum application. The decision has come into being because these two countries have become involved in activities under the Schengen Agreement.

* * *

Within the limited scope of this working document it is not possible to discuss temporary protection of displaced persons, a subject which likewise raises key issues. However, the rapporteur would like to make the following points: temporary protection is a special protection arrangement, limited in time, intended to respond to a crisis. Although Member States are empowered under this arrangement to suspend examination of the asylum applications of the persons concerned, they are not dispensed from their obligations under the Geneva Convention and other international instruments governing protection of persons. It follows that when a person benefiting from the special protection arrangements applies for refugee status, his application must afterwards be considered according to the merits of his particular case.

The rapporteur believes that burdens must be shared fairly among the Member States when temporary protection is in force. One possible criterion for burden sharing might be, for example, the Member States' GDP. This way of proceeding would do much to foster EU-wide solidarity in refugee matters.

As regards the applicant countries

The borders of the central and eastern European countries (CEEC) have become an unavoidable crossing point for a high proportion of migration. The CEEC have become 'transit countries' for asylum-seekers. The Union Member States have been invoking the provisions of the Schengen Agreement, the Dublin Convention, and numerous return agreements with CEECs in order to prevent an influx of asylum-seekers from third countries. Although the applicant countries have all acceded to the Geneva Convention and the European Convention on Human Rights and in most cases adopted new laws on aliens and the right of asylum, they do not at present have the material resources to cope with the strain of taking in asylum-seekers and have not yet fully implemented the procedures required to ensure that their applications for refugee status are dealt with fairly and efficiently

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EN (procedures are protracted, no proper information is provided at borders, restrictions are imposed on the activities of NGOs, and people are questioned in groups).

Moreover, the arrangements applying in certain central and eastern European countries are in some respects more 'liberal' than those in force in Union Member States (for example the term 'refugee' is not defined in a restrictive sense, and rejected asylum-seekers are granted a right of abode on humanitarian grounds).

The rapporteur wishes to draw attention in this connection to the importance of the pre- accession strategy and follow-up to the screening intended to monitor how far the CEEC have moved into line with the Union acquis regarding asylum and to the individual programmes in progress, in particular the PHARE programme.

IV. THE COMMISSION WORKING DOCUMENT: CRUCIAL ISSUES

The document begins by discussing the need for legally binding instruments governing asylum procedures, without considering the pros and cons of directives and regulations.

The Commission then lists eight key topics which it believes should form the basis of the legislative programme to be pursued following entry into force of the Treaty of Amsterdam:

- Communitarisation of the Dublin system;

- Eurodac;

- minimum reception standards;

- minimum standards to determine who should qualify as a refugee;

- procedures for granting or withdrawing refugee status;

- complementary/subsidiary protection;

- temporary protection for displaced persons;

- burden sharing.

According to the Commission's thinking, at least eight Community legal instruments would consequently be needed to regulate the different aspects of the same subject. Your rapporteur considers such a way of proceeding to be greatly wanting in terms of transparency and efficiency. There are persistent doubts whether it will meet the requirements of national enforcement bodies and the persons directly concerned.

Without departing from the substance of the Treaties or the Vienna timetable, it would probably be possible to reduce the number of legislative instruments to three or four (see 'Recommendations' below).

The Commission hints in point 9 of its working document that it would like to propose a Directive 'to establish a certain level of procedural safeguards and guarantees which all

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EN Member States would have to provide' on the understanding that Member States would be allowed a degree of latitude as regards the implementation arrangements.

It suggests that a proposal laying down a harmonised asylum procedure should not be submitted until later (thereby anticipating point 15 of the Tampere conclusions). The rapporteur believes, however, that every attempt should be made at this stage to establish a largely harmonised right of asylum in the EU.

As regards the substance of the minimum standards for the procedure, the Commission thinks that the London resolutions and the 1995 Council resolution can be viewed as a starting-point, but the rapporteur does not consider this to be the correct approach, because the Union has provided itself with a new legal frame of reference, Title IV of the EC Treaty and Title VI of the EU Treaty, which are not predicated on 'pre-Maastricht' forms of political cooperation or intergovernmental cooperation along Maastricht lines.

Community bodies are now responsible for devising and implementing a European asylum system for the Community.

It may not be necessary to start from scratch, but merely to update the existing provisions would be insufficient. The starting-point has to be the Treaty of Amsterdam, the Geneva Convention, and other relevant agreements (first and foremost the European Convention on Human Rights and the UN Convention against torture).

Those involved at the practical level point out that when a person is deported from one country to another under the Dublin Convention, there is no guarantee that the applicant's individual case will be re-examined from the beginning or that he will be asked to furnish evidence of new circumstances.

As regards the procedure for determining the 'admissibility' of applications, the Commission omits to mention the problem of applications made at borders and the criteria which an application must satisfy in order to be admissible and instead reduces the position to the stark choice between sending an applicant back to another country and considering the merits of the application.

Regarding the expression 'manifestly unfounded applications', the rapporteur would refer to his earlier remarks on the Commission's intention of basing its future proposal on government acts in no way intended to establish an area of freedom, security, and justice and in particular on the London resolutions.

What is needed, therefore, is a new approach breaking down into an 'admissibility phase' and a 'substantive examination' phase.

It follows from the foregoing that it would likewise be pointless to make any attempt to remove the inconsistencies of national lists of 'safe third countries'. As far as short-term action is concerned, this matter will be covered in a new Council Regulation on countries whose nationals must be in possession of a visa in order to enter Union territory. The rapporteur favours a single European list of safe third countries that should be valid in all Member

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EN States.

The same reasoning should apply to decisions on the visa requirement and classification of the country concerned as 'unsafe'. This point naturally relates also to the possibility of seeking 'internal sanctuary'.

Finally, it is not clear why the Commission is questioning the need for the future legal instrument to lay down the principle whereby withdrawal of refugee status should be considered on the basis of individual cases (collective enforcement, though permissible according to the UNHCR, should remain an exception) and for the same procedural safeguards to apply for the purposes of withdrawing as well as granting refugee status.

There is another issue that the working document fails to address. It is common knowledge that many people wrongfully lay claim to the right of asylum by resorting to a pretence of persecution although in reality they wish to enter a country for other – more often that not economic – reasons. Some political forces that fundamentally support immigration not only tolerate widespread unfair exploitation of the right of asylum, but even maintain that it is justified. It is not just the case that large sections of the public find this attitude incomprehensible, but the resulting situation penalises genuine victims of persecution to the extent that their legitimate desire for asylum becomes more difficult to satisfy. That is why the rapporteur believes that a clear-cut distinction needs to be made. To re-enhance the reputation and substance of the right of asylum, the qualification procedure should be tightened up, and abuses resolutely curbed. Furthermore, a discussion should begin, focusing on factual issues and results, with a view to determining what form a European right of establishment might take as regards both the fundamentals and vital matters of detail.

RECOMMENDATIONS

As regards the legislative programme

Rationalisation is a subject that might usefully be considered. The individual points listed in the Treaty and the Commission working document could be covered by three or four legislative instruments:

- a Directive to be adopted within two years (observing the timetable laid down in the Vienna action plan) on the standards for reception of asylum-seekers, the conditions to satisfy in order to qualify for refugee status, and the procedure for granting or withdrawing that status;

- a Regulation to be adopted within two years to 'Communitarise' the Dublin system, aimed at seeking more effective ways to determine the responsibility of the Member States; this Regulation should likewise include provisions to enable burdens to be shared fairly among the Member States; in the longer term, the provisions of the Eurodac Regulation, to be adapted as and where appropriate, should also be incorporated;

- a Directive to grant temporary protection to displaced persons and others in need of

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EN international protection (longer-term protection might need to be provided for those in the latter category); this instrument could be adopted within five years and should likewise lay down the principle of fair and appropriate burden sharing;

- the rules on the balance of efforts for displaced persons and de facto refugees could either be included in the above-mentioned Directive or (perhaps better) be the subject of a Regulation following a similar rationale to the Dublin Convention or Eurodac.

One important question to consider is whether a future consolidated proposal, covering all the arrangements applying to the right of asylum, temporary protection, and subsidiary protection, should be drawn up, preferably within eight years of entry into force of the Treaty of Amsterdam (in other words three years after the deadline laid down in the EC Treaty for adoption of the final legislative instruments).

* * *

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EN

22 March 2000

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS AND THE INTERNAL MARKET

for the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs

on the Commission working document ‘Towards common standards on asylum procedures’ (SEC(1999) 271 - C5-0157/1999 – 1999/2148(COS))

Draftsman: Mercedes Echerer

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EN EN

PROCEDURE

At its meeting of 9 November 1999 the Committee on Legal Affairs and the Internal Market appointed Mercedes Echerer draftsman.

It considered the draft opinion at its meetings of 30 November 1999 and 11 January, 1 February, 29 February and 21 March 2000.

At the last meeting it adopted the following conclusions by 24 votes to 0, with 2 abstentions.

The following were present for the vote: Ana Palacio Vallelersundi, chairman; Raina A. Mercedes Echerer, draftsman; Carlos Candal, Willy C.E.H. De Clercq, Jean-Maurice Dehousse, Janelly Fourtou, Marie-Françoise Garaud, Evelyne Gebhardt, Françoise D. Grossetête, Gerhard Hager, Malcolm Harbour, Ioannis Koukiadis, Kurt Lechner, Klaus- Heiner Lehne, Donald Neil MacCormick, Toine Manders, Luis Marinho, Véronique Mathieu, Arlene McCarthy, Manuel Medina Ortega, Bill Miller, Angelika Niebler, Gary Titley, Diana Paulette Wallis, Joachim Wuermeling and Christos Zacharakis.

PE 285.900 18/24 RR\411473EN.doc SHORT JUSTIFICATION

1. Introduction

The Committee on Legal Affairs and the Internal Market welcomes the Commission working document 'Towards common standards on asylum procedures'. An efficient, swift, harmonised and up-to-date asylum procedure is surely in the interest of all Member States, provided that it preserves the basic security measures and the proper legal procedures.

The author does have reservations about a form of harmonisation that would accommodate lower standards in legislation and the practice of some Member States.

2. The problems involved

1. The fundamental issue is the absence of a regulated European immigration policy. As a result, the global problem of migration is dealt with by the individual Member States by refusing people entry at their borders. Far too often asylum-seekers in particular lose their legal right to protection in the complex procedural machinery and are expelled and moved on in a general climate of xenophobia. It is precisely this negative attitude and, even worse, violation of rights, that the draftsman opposes.

2. The sheer volume of legal provisions would lead one to suppose that everything is as it should be. However, this is not so in practice. Asylum-seekers do not receive proper care, interpretation services are inadequate, they are treated in a humiliating way, they cannot find jobs despite being willing to work, they are detained in holding centres and are often moved on to unsafe countries. This treatment leads, legally speaking, to an undermining of the standard of protection laid down in the Geneva Convention relating to the Status of Refugees.

3. The individual Member States apply different criteria to define a safe third country.

4. (a) Similarly, the individual Member States apply different criteria to define a safe country of origin.

(b) In the case of asylum-seekers from the same country of origin, a country may be safe for one and unsafe for another, depending on the personal history of the individual (see point 5).

5. The costs must be shared in accordance with a scale that has yet to be defined.

6. In theory, all asylum-seekers are entitled to be treated as refugees until their status has been clarified. Access to the procedure should not be obstructed or impeded, whether on grounds of (a) nationality, (b) application of ‘internal refuge alternatives’, (c) application of the exclusion clauses under Article 1 of the Geneva Convention relating to the Status of Refugees, (d) non-compliance with certain periods of notice or other formal requirements on asylum-seekers.

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In addition, such access should be guaranteed, whether the application is made within the territory of the country or at the frontier.

7. In spite of efficiency and the need for faster procedures, the scrutiny of individual cases must take priority.

3. Legal position and practice in granting asylum in individual Member States

Detailed information on all the Member States is available in the ‘Working Paper on Asylum in the Member States’ by Parliament’s Directorate-General for Research.4 The UNHCR constantly monitors the growth in the number of applications for asylum and cases where asylum is granted.

4. Observations on the Commission document

The realistic choice for a future approach is minimum harmonisation. This approach could consist in replacing the – legally non-binding – Council resolution of 20 June 1995 on minimum guarantees for asylum procedures5 by a legal instrument based on Article 63.

The Commission does not confine itself to examining procedural law only. Several of the issues raised concern substantive law. This is useful both because the individual States’ asylum procedures are bound up with complex and well-developed structures (administrative and court structures) and because the harmonisation of procedural law would be pointless without the harmonisation of substantive law.

The term 'refugee'

One of the issues of substantive law to be tackled is the application of the term 'refugee', defined in Article 1A of the Geneva Convention relating to the Status of Refugees.

The term was clarified in a Joint Position of 4 March 19966.

For these reasons, a uniform interpretation of the term ‘refugee’ should be established in a legal act based on Article 63 of the EC Treaty. This would make the European Court of Justice competent to deal with issues concerning the validity and interpretation of the legal act in accordance with Article 68 of the EC Treaty.

4 Document LIBE 108 EN of December 1999. 5 OJ C 274, 19.9.1995, p. 13. 6 OJ L 63, 13.3.1996, p. 2.

PE 285.900 20/24 RR\411473EN.doc The resolutions of the Ministers of Internal Affairs - abuse of asylum

Any system is open to abuse by both sides.

Various resolutions adopted by the Internal Affairs Ministers are legally dubious and unworthy of a constitutional State.

We should therefore not close our eyes to abuse of asylum. Particular account should be taken of Member States that have a very open policy to asylum-seekers as it is.

Combating any abuse by asylum-seekers or Member States requires a thorough debate on a clear and forward-looking immigration policy that is separate from asylum policy.

‘Safe third countries’

In simplified terms, host third countries are States considered to be safe, in which asylum- seekers have obtained protection or would be able to obtain protection when at their border or on their territory. If there is such a State for the asylum-seeker, his asylum application is not examined and he can be expelled to that country. In practice, the problem is that not all Member States consider the same third countries to be safe or that some third countries are considered to be safe although they are not.

It would therefore be desirable if the EU could draw up a binding and constantly updated list of third countries which actually are safe, for which an assessment would need to be made in individual cases as to whether the asylum-seeker: (a) will be admitted again by that third country, (b) enjoys effective protection from expulsion, (c) will have the opportunity to seek and receive asylum there.

‘Manifestly unfounded’ applications for asylum

An application for asylum is declared to be ‘manifestly unfounded’, when the asylum-seeker’s application is unequivocally without substance, is based on deliberate deception or constitutes an abuse of the asylum procedure. In such cases the Member States can apply accelerated procedures, which do not require full examination at every stage of the procedure or ‘admissibility procedures’ which can lead to swift rejection on the basis of objective circumstances. Nor is an application processed if the rules of the host country are applicable. In some Member States applications from persons without adequate identity papers or proof of their journey are regarded as ‘manifestly unfounded’.

These ways of proceeding are dubious from the constitutional point of view.

‘Safe country of origin’

The Interior Ministers’ third resolution concerns the countries of origin from which asylum- seekers have fled (see point 2.4).

The three resolutions should be replaced by legal acts based on Article 63 which can be

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monitored by the Court of Justice.

Subsidiary protection

With the aim of shoring up a Geneva Convention that is increasingly being undermined in practice, thought should be given to additional protection for those who need it. The legal basis would be Article 63(2)(a) of the EC Treaty.

5. Further considerations

The practical implementation of asylum procedure

The quality of asylum procedures depends not only on the laws but also on the people who apply them. Great importance should be attached to the training of such staff, and the EU can make a contribution to this. Member States are urged to make extensive use of programmes such as the Odysseus Programme7 and supplement them with national programmes.

1. The staff dealing with asylum procedures should include people from all sections of the population if possible.

2. Close and effective cooperation with the UNHCR and other refugee organisations should be guaranteed.

3. Since refugees often speak ‘exotic’ languages, a shortage of interpreters or translations of the relevant documents can cause problems. The authorities are urged to make serious efforts to remedy this situation.

4. Asylum-seekers should be entitled to legal advice.

The status of asylum applicants

An important issue is the status of asylum applicants from the moment they submit their application until a decision is taken on the application. Consideration has to be given to issues such as employment, social security, accommodation, social services and education. Steps must be taken to prevent asylum-seekers from being reduced to helpless supplicants. Their ability to organise their own lives should be exploited to the full, and should include their entitlement to work.

Detention pending expulsion

If detention is inevitable, those detained must be at least 18 years old. Mothers should be allowed to take their children with them following careful examination of their case.

Expulsion

The need to expel asylum-seekers should always be assessed on the basis of individual cases and using strict criteria. If expulsion is unavoidable it must take place with respect for human

7 OJ L 99, 31.3.1998, p. 2; Programme for 1999: OJ C 17, 22.1.1999, p. 16.

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Groups of persons with special protection needs

For the following groups special processing, or special security measures under procedural law, are required: • torture victims • victims of sexual abuse • unaccompanied minors • pregnant women • persons who are seriously ill or severely disabled.

Other comments

When it comes to allocating asylum-seekers to the EU countries, the asylum-seekers themselves should have a voice in the process. The choice they make is not normally made at random, but usually depends on the presence of a community, relations or person known to them in the country of destination.

CONCLUSIONS

The Committee on Legal Affairs and the Internal Market calls on the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, as the committee responsible, to incorporate the following points in its draft resolution:

The European Parliament,

1. Welcomes the Commission Working Document ‘Towards common standards on asylum procedures’, which constitutes a valuable contribution to the debate on the problem of asylum;

2. Recalls that the legal right to minimum protection enshrined in the Geneva Convention relating to the Status of Refugees is also binding on the EU, in accordance with Article 63(1) TEC;

3. In accordance with the provisions of Article 63(1) of the EC Treaty, the Commission should present as soon as possible proposals for regulations on asylum that comply with the international standards in force;

4a. Considers, in view of the growth of the number of asylum applications made in the EU Member States and the principle, that should inform the policy of the Union, of offering protection to all those who need it, that it is necessary to implement the provisions of Title IV of the EC Treaty in this respect, in accordance with the action plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice of December 1998 (OJ C 19, 23.1.1999, pp.1-15);

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4b. Calls for equitable burden-sharing in accordance with Article 63(2)(b) of the EC Treaty, which could be attained through a common Fund with specific allocative keys for contributions and disbursements.

5. In accordance with the provisions of the EC Treaty, and with Title IV in particular, calls for a clear legal separation of asylum policy and immigration policy. A modern immigration policy will have a positive impact on the European asylum policy and vice versa. There must be no refusal to grant asylum on grounds of immigration policy;

6. Calls for practical implementation of the concept of safe countries of origin to respect the general principle of individual processing of the application for asylum;

7. Calls on the Member States not to use the legal concept of 'manifestly unfounded' applications for asylum to get rid of asylum-seekers without seriously examining whether they need protection on a case-by-case basis;

8. Calls for the particularly careful treatment of victims of torture, victims of sexual abuse, women under certain circumstances, unaccompanied minors, pregnant women and the sick and disabled, as recommended in the UNHCR directive on dealing with these groups of people and calls for the ‘instrument’ of detention pending expulsion to be reviewed.

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