EN Official Journal of the European Union C 157/96

Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to the Council and the European Parliament — “A more efficient Common European Asylum System: The single procedure as the next step”’

(COM(2004) 503 final — SEC(2004) 937)

(2005/C 157/17)

On 15 October 2004, the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned 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 25 November 2004. The rapporteur was Ms Le Nouail-Marlière.

At its 413th plenary session of 15 and 16 December 2004 (meeting of 15 December), the European Economic and Social Committee adopted the following opinion by 133 votes, with ten abstentions:

1. Gist of the Commission Communication

1.1 The communication referred to the EESC recommends improving and speeding up the procedures for granting status as a refugee or as a beneficiary of international protection.

1.2 It considers the potential advantages of a single asylum procedure that is quicker and more efficient, and of simplified procedures for asylum seekers: the Commission seems concerned to improve public perception of the way in which requests for asylum are processed and the circumstances in which individuals are returned to their country of origin.

1.3 The Commission then makes the case for the added value of such changes, resulting from closer cooperation between Member States and a joint methodology, based on two interdependent approaches to be undertaken in this order: an initial ‘preparatory’ phase followed by Community legislation.

1.4 The preparatory phase would be a period of consultation, debate and preparation on what Member States need to do to unify the procedures that lead to the two types of status set out in the Qualification Directive (1).

1.5 The preparatory phase would begin in January 2005 and run in tandem with the implementation of the first stage legislation of the Common European Asylum System (2).

1.6 The Commission will present its ‘One-Stop Shop Action Plan’ by the end of 2004.

1.7 The recommended preparatory phase has four aims: — to steer and inform the discussion on how the EU should move towards the adoption of a single procedure; — to identify the changes which need to take place; — to initiate those changes by adopting operational practices before or in parallel with a legislative approach; — lastly, the preparatory phase would also serve as a platform for the consultative process.

1.8 Community legislation would be the second phase of creating a single procedure for processing applications for refugee status in accordance with the 1951 Geneva Convention and the New York Protocol of 1967, and for subsidiary protection in accordance with the Qualification Directive. (3)

1.9 The communication sets out the practical details of the legislative approach: level of ambition, timescale of legislation, scope, appeals procedure, safeguarding the integrity of the Geneva Convention, maintaining the quality of decisions, return procedures and read-across to other instruments.

1.10 In short, the single procedure studied is a single procedure for a request for asylum or international protection whatever the status of the applicant, whether: — a refugee in accordance with the 1951 Geneva Convention and with the 1967 New York Protocol; or — a beneficiary of subsidiary protection in accordance with Directive 2004/83/EC adopted by the Council on 29 April 2004 (4).

2. General comments

2.1 The Committee welcomes the Commission's ambitious objectives and shares its concern that a single procedure should safeguard the integrity of the 1951 Geneva Convention. To this end and, in line with the provisions of the Qualification Directive, refugees' rights should firstly be considered on the basis of the procedures set out in the 1951 Convention — with consideration of subsidiary protection being the second course of action if the conditions required under that Convention status are not fulfilled.

2.2 The Committee recommends that this priority should be explicit, whatever happens with regard to introducing a single procedure.

2.3 The Committee recommends that reasons should be given for any rejection of a request for international protection and particularly for any refusal to grant refugee status in accordance with the 1951 Geneva Convention, even where subsidiary protection is granted. The Committee believes these guarantees to be crucial to safeguarding the integrity of the 1951 Geneva Convention, as stated by the Commission.

2.4 As regards the need for subsidiary protection, the Committee recognises that asylum seekers cannot determine which statuses arise from the Convention and which are subsidiary and that they face further problems in the country where they have to resubmit an application on other grounds after being refused the status provided for in the 1951 Geneva Convention, leading to confusion, discouragement and intolerable delays.

2.5 The Committee calls on the Commission to take account, in its communication and when it launches the preparatory and legislative phases, of the non-refoulement principle (Article 33 of the Geneva Convention) and of the need to provide a judicial right of appeal against negative decisions. A possible ex officio examination of subsidiary protection grounds should be undertaken once the conditions for granting refugee status provided for under the Geneva Convention have been examined, and the applicant should be granted the right of appeal against involuntary return, in accordance with international and European human rights conventions.

2.6 To this end, NGOs and the UNHCR should not be excluded from administrative appeals committees where these exist and, where they do not exist, should have unrestricted access to asylum seekers and their applications, in order to facilitate access to and use of this right.

2.7 The Committee urges the Commission, in its amendments to the Directive on Procedures adopted by the Council on 19 November 2004 and to be re-submitted to the European Parliament, to extend the scope to include subsidiary protection, under the terms of the Qualification Directive and to review its classification of ‘safe’ third countries of origin or of transit ‘from safe third countries’, which denies asylum seekers the chance to have their individual situation and rights examined.

2.8 The EESC recommends that any current errors and problems in existing procedures for determining the status of refugees be addressed in the preparatory phase.

2.9 Where bilateral readmission agreements are concerned, in order to allow all Member States to comply with their international obligations and with European directives (5); the Council should ensure that it has the means, in the preparatory phase, to create a harmonised system of solidarity between Member States, such as resettlement schemes and burden-sharing.

2.10 The Committee also calls on the Commission to review the so-called ‘accelerated procedure’, which denies asylum seekers the benefits of a thorough assessment of their individual situation and their associated rights, in particular the suspensive effect of legal proceedings, which puts them in danger of being returned to their country of origin before their case is heard by a competent court.

2.11 With regard to the possibilities and grounds for return to the country of origin, the EESC calls upon the Commission to take account of the fact that this may not be possible in certain cases because of obstacles not related to the refugee's status or for humanitarian reasons (e.g. illness).

Brussels, 15 December 2004. The President of the European Economic and Social Committee Anne-Marie SIGMUND

(1) Cf: Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, adopted by the Council on 29.04.2004, and the related EESC opinion in OJ C 221 of 17.09.2002 (rapporteur: Ms Le Nouail Marlière).

(2) Cf. Decision 2000/596/EC creating a European Refugee Fund and related opinions in OJ C 168 of 16.6.2000 (rapporteur: Ms zu Eulenburg; Directive 2001/55/EC on giving temporary protection in the event of a mass influx of displaced persons and the EESC opinion in OJ C 155 of 29.5.2001 (rapporteur: Ms Cassina); Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, on which the Council reached agreement on 19.11.2004, and the EESC opinion in OJ C 193 of 10.7.2001, (rapporteur: Ms Melicías); Directive 2003/9/EC on minimum standards on the reception of applicants for asylum in Member States and the EESC opinion in OJ C 48 of 21.2.2001 (rapporteurs: Mr Mengozzi and Mr Pariza Castaños); Regulation No. 343/2003 on the criteria and mechanisms for examining an asylum application (Dublin II) and the EESC opinion in OJ C 125 of 27.5.2002 (rapporteur: Mr Sharma); Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, adopted by the Council on 29.4.2004, and the related EESC opinion in OJ C 221 of 17.9.2002 (rapporteur: Ms Le Nouail Marlière); Council Decision establishing the European Refugee Fund for the period 2005-2010 of 8.6.2004 and the opinion of the EESC – OJ C 241 of 28.9.2004.

(3) Cf: Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, adopted by the Council on 29.04.2004, and the related EESC opinion in OJ C 221 of 17.09.2002 (rapporteur: Ms Le Nouail Marlière).

(4) Cf: the Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, adopted by the Council on 29.04.2004.

(5) Cf point 3.13.1 of the EESC opinion on the Commission Communication ‘Study on the links between legal and illegal migration’ (COM(2004) 412 final) adopted on 15/16 December 2004 (rapporteur: Mr Pariza Castaños).