Opinion of the Economic and Social Committee on the "Communication from the Commission to the Council and the European Parliament: Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum"

(2001/C 260/20)

On 1 February 2001 the Commission decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned communication.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 20 June 2001. The rapporteur was Mr Mengozzi.

At its 383rd plenary session (meeting of 12 July), the Economic and Social Committee adopted the following opinion with 67 votes in favour, no dissenting votes and 14 abstentions.

1. Introduction

1.1. Points 13, 14 and 15 of the conclusions of the European Council in Tampere on 15 and 16 October 1999 state that:

"13. The European Council reaffirms the importance the Union and Member States attach to absolute respect of the right to seek asylum. It has agreed to work towards establishing a common European asylum system, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of 'non-refoulement'.

14. This system should include, in the short term, a clear and workable determination of the State responsible for examining an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of refugee status. It should also be completed with measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection. To that end, the Council is urged to adopt, on the basis of Commission proposals, the necessary decisions according to the timetable set in the Treaty of Amsterdam and the Vienna Action Plan. The European Council stresses the importance of consulting UNHCR and other international organisations.

15. In the longer term, Community rules should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union. The Commission is asked to prepare within one year a communication on this matter."

1.2. The communication which the Commission has issued pursuant to this mandate is short, dense and ambitious. It sets the scene for more specific proposals which will be the subject of future communications. The Committee fully supports its aims, and intends to play an active part in all stages of the debate now being launched in a long-term perspective, with a view to identifying clear guidelines while also helping to shorten the time-frame.

1.3. The communication has five parts.

1.3.1. The first part looks briefly at the asylum situation within the Union (legal bases, medium and long-term trends, reasons for variations, and forms of additional protection).

1.3.1.1. It goes on to set out the principles and objectives underpinning the action plan for a common asylum procedure and uniform status. These include application of the provisions of the Geneva Convention in full and limitation of secondary movements between Member States caused by the diversity of applicable rules.

1.3.2. The second part looks ahead to the transition from a limited common procedure in which the Member States retain their national systems but undertake to respect certain norms and conditions regarding the competent authorities and applicable procedures, to a second stage in which the common procedure is integrated and there is less scope for flexibility and options.

1.3.2.1. This second stage includes proposals for a "one-stop-shop", arrangements for access to the territory, offering asylum-seekers an equivalent level of living conditions throughout the Community, clear criteria and mechanisms for determining the state responsible for examining asylum requests, and a credible policy for returns.

1.3.3. The third part discusses the definition of certain specific aspects and puts forward some issues for debate: forms of subsidiary protection, one or more personal statuses, refugees' rights, integration and access to citizenship.

1.3.4. The fourth and fifth parts consider mechanisms for information and common analysis, and the instruments needed to implement the programme.

2. Comments

2.1. After reaching a peak between 1992 and 1994, requests for asylum in the EU fell until 1998. They then began to rise again and this trend continued in 2000 (387330 requests in 1999 and 389590 in 2000). This trend is borne out by net migration figures, which went from 1030000 in 1990 to 478000 in 1998(1).

2.1.1. The Commission's explanations for the fall are correct but do not tell the full story. Whilst it is true that one cannot speak of a "more and more restrictive" interpretation, dissuasive measures - and, in particular, less flexibility in the granting of refugee status - are certainly a factor. It should also be noted that the peak was caused by the outbreak of the Bosnia crisis which led 400000 people to seek refuge in Germany alone.

2.2. While warning against the danger of downward harmonisation when establishing a common procedure, the Committee endorses the proposed measures:

- adoption of clear principles, in line with the Geneva Convention and the New York protocol(2);

- respect for the principles enshrined in the EU's charter of fundamental rights;

- assurance of full respect for the right of "non-refoulement";

- adoption of procedures to ensure that people who genuinely need protection are granted it fairly, speedily and effectively;

- action that reflects a new common immigration policy;

- harmonisation of reception conditions to ensure, as far as possible, equivalent living conditions throughout EU territory and to avoid movement from one country to another (secondary movements)(3).

2.2.1. The Committee also agrees that it is necessary to progress gradually, but as quickly as possible, to the stage of establishing an integrated common procedure and a uniform status.

2.2.2. In this context the Committee particularly welcomes the statement that the common procedure is not designed to establish a Community decision-making system involving a specialist body that would replace the Member States.

2.3. A common procedure

2.3.1. Although the common lists of safe countries of origin and safe third countries would be agreed at EU level, there are strong arguments against such lists. Countries could be included or excluded on political grounds, and lists are a rigid instrument that makes an irrefutable presumption about situations which are not easily defined. For instance, the governments of some officially "safe" countries are unable to protect people exercising their democratic rights, against persecution from ethnic or other groups who impose their position through the use of force.

2.3.1.1. Regrettably, such situations are becoming increasingly common. The personal history of each asylum seeker must thus be carefully scrutinised, and the situation in his country of origin must be analysed more thoroughly. A detailed examination of the application during the first stage could help to reduce the number of appeals at a later stage.

2.3.1.2. Under no circumstances must the fact that an asylum applicant comes from a country which is assumed to have a good human-rights record be used as a reason for not analysing the application.

2.3.1.3. This makes the introduction and upkeep of a Community reference and information-sharing mechanism even more important, with information based on extensive and up-to-date analysis of the situation in the individual countries and obtained not only through the normal diplomatic channels but also from international bodies - first and foremost the UN High Commissioner for Refugees (UNHCR) - and the main non-governmental organisations working in this field.

2.3.2. The procedural method of the "one-stop-shop" should be adopted by all Member States. By centralising the examination within a single authority and using more uniform criteria, this method offers the asylum-seeker a better guarantee that his application will be dealt with rapidly (thus also reducing costs), that his situation and needs will be examined in full, and that no form of protection will be overlooked.

2.3.2.1. Procedures could also be speeded up by appointing experts to deal with the most vulnerable categories of asylum applicant (victims of torture or other traumas, minors) and assess their actual situation. Experience has shown that such people are often unable to explain their situation clearly; the application is therefore initially turned down, and a lengthy review is required.

2.3.2.2. The single procedure will centralise all protection possibilities within this one authority. A preliminary step here must be to check on the possibility of granting refugee status under the Geneva Convention, then moving on automatically to examine other forms of protection. A justification must be provided for the decisions adopted.

2.3.2.3. If expedited non-admission procedures are to be retained, they should at least be backed by firmer guarantees.

2.3.2.4. Asylum-seekers should be able to rely on appropriate free legal assistance at all stages of the procedure, and on interpreters and translation services. The right to appeal should be guaranteed, and appeals should have an automatic suspensive effect.

2.3.2.4.1. Female refugees should receive special attention, bearing in mind the obviously greater risks they face.

2.3.3. The use of visas as an instrument granting access to territory should be reasonably flexible and not subject to rigid rules, to make it easier to respond to new or emergency situations. Third countries for which a visa is not required might need to reintroduce this requirement in order to respond to an abnormal influx; also, third countries for which a visa is required might waive the requirement, for instance in order to combat human trafficking.

2.3.3.1. The proposed measures are basically security-oriented. Alternative measures are needed to overcome the risk of human trafficking. Diplomatic representations in the country of origin, where possible, but above all in transit third countries, should take care of procedures for examining asylum requests and granting visas, and should organise transport.

2.3.3.2. Imposing penalties on transport companies which do not check whether their passengers have an entry visa is inconsistent with this approach. It is up to the border authorities to check for visas.

2.3.3.3. This alternative mechanism could also provide a framework for proposals for resettlement programmes (currently conducted by only four Member States), in cooperation with NGOs and the UNHCR. In this context the Commission mentions a procedure used in the United States which involves a resettlement scheme based on coordination between public authorities, NGOs and the UNHCR. The Commission should perhaps give more detailed consideration to this, with a view to drawing up a proposal for use in the EU.

2.3.4. The Dublin Convention was introduced with the twofold aim of reducing multiple asylum applications (i.e. submitted by one individual to several states) and of solving the problem of asylum-seekers being shunted from one country to another. In the light of experience, it is generally felt that the convention does not work as it should and creates more problems than it solves. The volume of work and costs which it requires is not proportional to the results, and many asylum-seekers disappear before they are transferred, thus swelling the ranks of illegal immigrants.

2.3.4.1. It should however be added that the convention has had the merit of fostering a Community approach to asylum in the framework of the Amsterdam Treaty.

2.3.4.2. The adoption of a common procedure and a uniform status would make it much easier to identify the Member State responsible for examining the asylum request, on the basis of the place where the application is submitted, without prejudice to the applicant's right to a fair examination of his wishes regarding country of destination.

2.3.4.3. At all events, it is clear that the Dublin Convention will need to be revised in the light of the new overall approach proposed by the Commission, paying particular attention to the following aspects:

- making the common position of 4 March 1996 legally binding - this provides a uniform interpretation of the concept of refugee - after first correcting the concept of persecution so that it includes persecution by non-state bodies;

- offering the asylum-seeker the possibility of choosing the country he wishes to apply to, taking account of the cultural and social factors which determine this choice and which are crucial for faster integration;

- guaranteeing the right to legal protection, information and appeal;

- defining minimum reception standards;

- overcoming excessively slow transfers and the scarcity of information given to asylum-seekers.

2.3.4.4. The Committee thus awaits the Commission's conclusions regarding the assessment of the application of the convention.

2.3.5. The Committee hopes that the candidate countries will be involved in the drive to create a regional system which is fairer to asylum-seekers, and that NGOs working on these issues in those countries will be consulted.

2.3.5.1. Here it is worth noting (although this obviously falls outside the remit of the current opinion) that the long transition period for freedom of movement after the accession of the applicant countries could discourage them from implementing the Community's legislation on immigration and asylum.

2.3.5.2. When assessing the criteria regarding the justice and home affairs sector, the efficiency of asylum procedures and levels of assistance are an important factor. To neglect these would be to jeopardise the objectives of the proposal.

2.4. Uniform status

2.4.1. Some form of subsidiary protection is necessary - given that the Geneva Convention is interpreted in a restrictive manner by some countries - but this is not always sufficient. There is also a need for a form of protection which relates to the personal circumstances of the individual concerned, who may come from a country that is deemed safe, and in which basic international legal standards concerning human rights are "generally" [this is the usual term(4)] respected.

2.4.2. At the current stage, it is extremely important to harmonise national arrangements for identifying protection needs and the conditions for ceasing to provide it under the terms of the Geneva Convention, if we are to avoid disparities between Member States which would inevitably encourage secondary movements.

2.4.2.1. In both cases the approach must be highly personalised. This is particularly true of the decision to remove protection, which cannot be based solely on application of the "change of circumstance" clause as this could expose the individual to serious difficulties relating to his personal history.

2.4.3. Enshrining refugees' rights - as defined in the Geneva Convention - in Community law would make it easier to ensure that these rights are applied in a uniform manner.

2.4.3.1. A single status would undoubtedly simplify the system, but the Committee agrees with the UNHCR's view that refugee status under the Geneva Convention has an international dimension with extraterritorial effects which it would not be in the interests of the refugee to renounce. Alongside the Geneva status, there should therefore be another status encompassing all the forms of subsidiary protection found in the Member States.

2.4.3.2. Providing different specific rights depending on the form of protection conferred does not seem a good idea. Rights and benefits should be identified on the basis of needs and on humanitarian grounds, and not on the basis of the place of origin or residence. For the same reason, it is not sensible to link the nature of rights to the length of stay.

2.4.3.2.1. Conversely, granting the same rights and benefits to different statuses would avoid many complications and, in particular, the systematic recourse to appeal when refugee status is denied and a subsidiary status is conferred.

2.4.3.3. The content of rights (access to employment, social protection, education, residence and travel documents, right to vote in local elections) must be harmonised for all third-country nationals who are legally resident in the EU, and must thus be viewed in the wider context of immigration policy.

2.4.3.4. The Tampere conclusions state that "the European Council endorses the objective that long-term legally resident third-country nationals be offered the opportunity to obtain the nationality of the Member State in which they are resident".

2.4.3.4.1. The Committee supports this objective, and calls on the Commission to put forward proposals on the matter. This would give a strong boost to the commitment to integration.

2.4.3.4.2. The concept of "civic citizenship" could provide a useful intermediate stage towards full citizenship. However, it should not be treated as a replacement for full citizenship or as an excuse for dragging matters out, bearing in mind that some Member States already grant full citizenship after five years of residence.

2.4.4. Article 63 of the consolidated Treaty states that measures on asylum are to be adopted "within a period of five years after the entry into force of the Treaty of Amsterdam", i.e. before 1 May 2004. The Tampere Council decided to establish the common European system in two stages. The Committee takes this to mean that a common procedure and uniform status can be drawn up on the basis of the current text of the Treaty.

2.4.4.1. The distinction between a first and second stage rests not so much on the content of the minimum rules as on the need for a gradual transition to the introduction of a common procedure which leaves Member States less room for manoeuvre or for derogations, in order to achieve the desired objectives.

2.4.4.2. The Commission is rightly concerned to propose instruments and actions to produce convergence during the first stage, inter alia through the operation of contact groups and the development of case law by national and European courts.

2.4.5. The present opinion has mentioned the importance of consulting the UNHCR - as in any case required under Declaration 17 appended to the Amsterdam Treaty - and the relevant NGOs, such as the European Council on Refugees and Exiles, Médecins Sans Frontières and the International Red Cross. The document also rightly stresses the need to involve civil society and local authorities. Local authorities and the social partners can play a fundamental role in ensuring fair reception conditions and living and working conditions. They should therefore be involved in the debate on implementation of the whole system.

2.4.5.1. As a broad representative of organised civil society, the Committee intends to play a leading role in the design and operation of the system proposed by the Commission.

3. Conclusions

3.1. In the last century, even before the protection of refugees became the shared responsibility of the international community in 1951, many Europeans - under pressure from illiberal or dictatorial regimes - sought asylum in liberal, democratic countries. In this new century one must not forget all those men and women who, for the same reasons or for new ones, seek refuge in a European Union which guarantees freedom and democracy for all citizens.

3.1.1. Consequently, political, economic and religious groups in many Member States need to raise public awareness of asylum rights and obligations, and of the fact that asylum is a basic human right, by conducting large-scale political and educational campaigns with the involvement of the mass media.

3.1.2. However, this also presupposes overall reform of immigration policy at European level - as now being undertaken pursuant to the principles laid down at the Tampere European Council - to regulate migration flows fairly, prevent asylum applications from being used as one of the few ways of gaining access to the Union, and establish an effective integration policy.

3.2. The Committee thinks that the Commission should consider suggesting to the Council that the Union sign up directly to the Geneva Convention, given that the Amsterdam Treaty has made this an area of Community competence.

Brussels, 12 July 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) Statistical dossier on immigration 2000, 10th report, ed. Anterem, Rome, p. 49.

(2) Protocol relating to the status of refugees of 31 January 1967.

(3) The Committee will issue a more detailed opinion on this matter when it examines the proposal for a directive laying down minimum standards on the reception of applicants for asylum in the Member States. The Committee is also pleased to note that this aspect is included in the programme of the Belgian Presidency, in the chapter on asylum and immigration.

(4) Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (COM(2000) 578 final, Appendix II, p. 53).