Opinion of the Economic and Social Committee on the "Proposal for a Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national"

(COM(2001) 447 final - 2001/0182 (CNS)

(2002/C 125/08)

On 30 August 2001, the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion unanimously on 27 February 2002. The rapporteur was Mr Sharma.

At its 389th Plenary Session on 20 and 21 March 2002 (meeting of 20 March), the Economic and Social Committee adopted the following opinion by 79 votes to one with three abstentions.

1. Introduction

1.1. This is a Commission proposal for a Council Regulation laying down the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.

1.2. The aim of the Commission's proposal for a Regulation, which is designed to replace the Dublin Convention, is not merely to implement Article 63(1)(a) of the EC Treaty. The aim is also to respond to the wish expressed at the Tampere European Council that the criteria and mechanisms for determining the Member State responsible for examining an asylum application are to be based on a "clear and workable method" forming part of a "fair and efficient asylum procedure". The Regulation is designed to bring the Dublin Convention into Community law.

1.3. After first considering a number of alternatives, the Commission has decided to maintain the (current) criteria and mechanisms for determining the Member State responsible for examining an asylum application.

1.4. Thus, the general principle is that responsibility lies with the Member State which played the greatest part in the applicant's entry into or residence on the territories of the Member State, subject to exceptions designed to protect family unity. It should be noted that the system for determining the State responsible applies only to persons requesting recognition of the status of refugee within the meaning of the Geneva Convention of 28 July 1951 and does not cover the forms of subsidiary protection which has not yet been harmonised.

1.5. The proposal seeks to ensure that asylum seekers have effective access to the procedures for determining refugee status, prevent abuse of asylum procedures, close the loopholes and correct the inaccuracies detected in the Dublin Convention, adapt the system to the new realities resulting from the progress made as regards the establishment of an area without internal borders, determine the Member State responsible as quickly as possible and increase the system's efficiency.

1.6. The proposal includes a number of innovations:

New provisions emphasise each Member State's responsibility vis-à-vis all its partners in the Union when it allows illegal residents to remain on its territory, shorter procedural time limits, extended time limits for implementing transfers to the Member State responsible and provisions aimed to preserve the unity of asylum seekers' families.

2. General comments

2.1. The Committee would like its opinion on the draft Regulation to be considered in the context of two previously adopted opinions in this subject area.

2.2. The first of these references is the Committee's opinion on the Commission's proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status(1). In this opinion the Committee stated that it should be remembered that the Geneva Convention is a human rights' instrument. The references made in the preamble to the convention to the 1948 Universal Declaration of Human Rights strengthen the view that protection of refugees should be seen as an integral element of human rights' protection, since it is based on safeguarding the dignity and fundamental rights of all human beings.

2.3. Alongside the references to the Geneva Convention, the Committee believes that there must also be references to other relevant international conventions: the European Convention on Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; the Convention on the Elimination of all forms of discrimination against Women.

2.4. The second reference is to the Committee's Opinion on the Commission's Communication to the Council and the European Parliament: "Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum(2) in this opinion the Committee stated that, 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."

2.5. The Dublin Convention was introduced with the two-fold 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.

2.6. 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 entails are not proportional to the results, as many asylum-seekers disappear before they are transferred, thus swelling the ranks of illegal immigrants.

2.7. In only 6 % of cases is there any debate as to which Member State has the responsibility for determining the application and, moreover, in 95 % of cases it is the Member State, in which the asylum application is lodged, that assumes responsibility for examining that application. The laborious mechanism of the Dublin Convention is therefore only applied to a very small proportion of all asylum application cases, and of these, only 1,7 % are actually transferred to a Member State other than in which the application was lodged. In the years 1998 and 1999, of the 655000 applications for asylum only 10998 asylum seekers were actually transferred to a Member State other than the one to which they had applied. The figures therefore demonstrate that only around 5000 people are successfully transferred/taken back per year.

2.8. The Committee's conclusion is that this Regulation is bringing into Community law the main features of a substantially flawed Dublin Convention. Even after the improvements proposed by the Commission we will not have a Regulation that is clear, workable, effective, fair and humane.

2.9. The Committee does accept however, that there may well be a political imperative to proceed with this Regulation at this moment in time. It therefore notes the greater emphasis which is put on the principle of a Member State's responsibility for illegal entrants into its territory and those who have been resident illegally for a considerable length of time. The Committee also welcomes the greater importance attached to family unity, although this falls well short of the Commission's proposals on family reunification. The Committee welcomes the much shorter procedural deadlines which we hope will lead to earlier determination of asylum applications.

3. Specific comments

3.1. Article 3

Article 3 refers to the criteria for determining which Member State will be responsible for examining an asylum claim. It is notable that unlike the Dublin Convention there is no reference in this provision to Member States' international obligations. The Committee is concerned that Member States are reminded of their obligations under international law, such as the European Convention on Human Rights and the Convention against torture, when they undertake to examine asylum applications.

3.2. Article 6

Article 6 refers to the position of unaccompanied minors. It is proposed that the Member State where there is a member of his family who is able to take charge of him shall be responsible for determining the application for asylum. The Committee accepts that processing an application made by an unaccompanied minor can raise many problems and that in the best interests of the minor and in completing the procedures as rapidly as possible the definition of people who are eligible to take charge of the child should not be unnecessarily restrictive. The definition as proposed, excludes grandparents, uncles and aunts and adult brothers and sisters, all of whom might be equally suitable to take charge of the child. The Committee therefore proposes that, in the best interest of the minor, the definition of family member be extended to a family member or another relative who is both able and willing to take charge of the minor.

3.3. Article 16

Article 16 refers to the circumstances in which a Member State may consider the criteria of family reunification in determining where an asylum application from a dependant person should be processed. The Regulation proposes that "Member States shall regard situations where one of the persons concerned, is dependent on the assistance of the other on account of pregnancy or maternity, their state of health or great age as justifying the uniting of the asylum seeker with a member of his family present in the territory of one of the Member States in circumstances not provided for in this Regulation". The Committee proposes that the definition of family member be widened to include the words or other relative.

3.4. Article 18, paragraph 1

Article 18 concerns the timetable for requesting another Member State to take charge of processing an asylum application. The proposal is for a request to be lodged with another Member State within a maximum limit of 65 working days. The Committee believes that this time-scale is too short when considering asylum applications from unaccompanied minors. The Committee proposes that the time limit should be suspended and the 65 working days should only start to run in the following circumstances:

- after the completion of an assessment of the suitability of a family member or other relative to take charge of the child;

- and, where it is necessary, after the outcome of the admissibility procedure relating to the asylum application of a family member or other relative.

3.5. Article 20

This provision provides for an appeal to the courts against a decision on inadmissibility. However the appeal is not to have suspensive effect on the basis that, "Since a transfer to another Member State is not likely to cause the person concerned serious loss that is hard to make good, it is not necessary for the performance of the transfer to be suspended pending the outcome of the proceedings". The Committee does not accept this rationale because it is extremely difficult for an asylum applicant to maintain contact with lawyers who would have to conduct the appeal. Most asylum applicants lead a hand-to-mouth existence and international communications are likely to be impossible.

4. Conclusion

4.1. Whilst the Committee welcomes the improvements to the Dublin Convention proposed in this Regulation, our position remains that, harmonisation of asylum procedures, reception conditions, interpretation of the definition of refugee and other complementary forms of protection, should take place before formulating a system for allocating responsibility between Member States for examining of asylum applications. In our view such harmonisation would reduce any perceived incentives for asylum applicants to choose between Member States when lodging their applications. No system of allocating responsibility for considering asylum applications can function fairly without harmonisation of the law and procedures.

4.2. At the European Council in Tampere the importance of both the European Union and individual Member States respecting the right to seek asylum was reaffirmed, as was the offer of guarantees to those who seek protection in, or access to, the European Union.

4.3. The right to seek asylum is contained in the Universal Declaration on Human Rights is undermined by a system which links allocation of responsibility for asylum applications to responsibility for entry controls. Such a system encourages States to prevent asylum applicants from ever reaching their territory through an ever-increasing variety of control measures.

4.4. Far from contributing to safeguarding of rights at national level, this proposed regulation undermines those rights. It encourages Member States to externalise their borders and to take repressive measures against those seeking entry into their territory with the result that asylum seekers are forced into the hand of organised criminals involved in human trafficking.

Brussels, 20 March 2002.

The President

of the Economic and Social Committee

Göke Frerichs

(1) OJ C 193, 10.7.2001, points 2.1.1.1 and 2.1.2.

(2) OJ C 260, 17.9.2001, point 2.3.4.3.