Opinion of the Economic and Social Committee on the "Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status"

(2001/C 193/16)

On 11 December 2000 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 on 6 April 2001. The rapporteur was Mr Melícias.

At its 381st plenary session (meeting of 26 April 2001), the Economic and Social Committee adopted the following opinion by 98 votes in favour with two abstentions.

1. Introduction

1.1. The Economic and Social Committee is required to voice an opinion on the Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status(1).

1.2. The Committee believes that this is a welcome and necessary step towards achieving "a common policy on asylum, including a Common European Asylum System" and is "a constituent part of the European Union's objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community" [preamble, recital (1)].

1.3. The Committee considers that the draft proposal carries forward the Tampere Conclusions, which "provide that a Common European Asylum System should include in the short term common standards for fair and efficient asylum procedures in the Member States" [preamble, recital (3)].

1.4. It also agrees that "the minimum standards laid down in this [draft] Directive should (...) enable Member States to operate a simple and quick system that swiftly and correctly processes applications for asylum in accordance with the international obligations and constitutions of the Member States" [preamble, recital (6)].

2. General comments

2.1. The following points in the draft directive require comment:

2.1.1. The specific references to the 1951 Convention relating to the status of refugees (Geneva Convention) and to the 1967 New York Protocol, particularly concerning how to define a refugee [Article 2(b) of the draft directive] underline the humanistic and humanitarian importance of this international legal instrument. The Committee agrees that uniform application of a common European asylum policy requires harmonised interpretation of the Geneva Convention.

2.1.1.1. 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.

2.1.2. 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.

2.1.3. The Committee highlights the draft directive's reference to the involvement of the United Nations High Commissioner for Refugees (UNHCR), in Articles 13(b), 7(c), 15(4) and 17(a) and (b). This underscores the UNHCR's important supervisory responsibilities under Article 35 of the Geneva Convention, enabling the UNHCR's office to make representations to any competent authorities regarding individual applications for asylum at any stage of the procedure (Article 17(c) of the draft directive).

2.2. Without wishing to encroach upon the specific role of the UNHCR or other specialist agencies in this area, the European ESC - as an advisory body broadly representing organised civil society and increasingly serving to "reflect civil society organisations at European level", or act as "a vital bridge between the EU and civil society" - feels that it must serve as a catalyst for greater civil society involvement in this issue.

2.3. Under the terms of Article 13(1)(b), the determining authorities must have "access to precise and up-to-date information from various sources, including information from the UNHCR, concerning the situation prevailing in the countries of origin of asylum applicants and in transit countries". In the light of this provision, the ESC considers that information regarding the asylum applicant's country of origin and the transit countries he has crossed must also be able to be provided by organisations which are recognised as representing civil society and which are active in the Member State examining the asylum application. By way of example, such bodies could include Amnesty International, Assistência Médica Internacional, the Red Cross or Médecins sans Frontières, as well as other humanitarian organisations which can provide this kind of information in each of the Member States.

3. Specific comments

3.1. The following sections of Article 2 require comment:

- point (i): under Article 1(A) of the Geneva Convention, refugee status is accorded, not granted by States. Cf. paragraph 28 of the Handbook on Procedures and Criteria for Determining Refugee Status, UNHCR, Geneva, 1992 on this point ("recognition of refugee status").

- point (l): Article 33(2) of the Geneva Convention does not govern "withdrawal of refugee status" as claimed in this point, but relates to an exception from the prohibition of expulsion or return.

3.2. Provision should be made in the draft directive for the following aspects.

3.2.1. Article 4(1) is a safeguard of the greatest importance, since it provides unconditional access to the asylum procedure. Although recital (6) of the preamble declares that "the minimum standards laid down in this (draft) Directive should (...) enable Member States to operate a simple and quick system", the procedure must also be fair - which means that all asylum applicants have access to the system, regardless of point in time or deadlines, or of whether or not the prior formalities which may be attached to submission of an application have been completed.

3.2.2. By virtue of the nature and humanitarian purpose of asylum, free and unrestricted access to their territory and asylum procedures constitutes a fundamental guarantee that the Member States must strive to provide.

3.2.3. As this is being enshrined as a Community right, it would be appropriate for Article 2(b) to include a reference to Article 3 of Protocol No 4 to the European Convention on Human Rights.

3.2.3.1. The presumption contained in Article 2(b) in fine should also be highlighted. This presumption is important because, without prejudice to other, additional means of protection, it accords priority to asylum. It has been noted that certain Member States tend to deal with asylum requests under procedures for additional protection.

3.2.3.2. Article 3(3) and recital (17) are of similar tenor. This approach means that the Member States must strive to define the various cases covered by additional kinds of protection.

3.2.3.3. It is essential for it to be clearly stated that "any statement signalling a person's wish to obtain protection from persecution, or any manifestation or expression of the person indicating that he fears to be returned to his country, should therefore be treated as an application for asylum" (page 11 of the Explanatory Memorandum, point 2 under Article 4).

3.2.4. Article 7(b) - use of interpreters

3.2.4.1. The opportunity for the competent authorities or asylum applicants to use an interpreter must constitute an asylum procedure guarantee, whatever type of procedure is involved, or whatever stage in the procedure has been reached. Interpreters must be competent, qualified and impartial. To this end - and in spite of remarks by certain Member States regarding the high cost involved - the Committee proposes that the services of an interpreter should always be paid for out of public funds when called upon by the competent authorities or by the asylum applicant. The competent authorities should not have the power to decide whether or not an interpreter is to be used. The Committee suggests that funding for the use of interpreters in the Member States could come from the European Refugee Fund, which was set up with the specific aim of supporting the reception and integration of asylum applicants in the Member States.

3.2.4.2. This is necessary since otherwise, one of the intended benefits of the proposal (minimum procedural guarantees) will not be achieved. The absence of an interpreter may affect an applicant's ability to present his application properly, which is an essential condition for a full airing of the case and the corresponding asylum guarantee.

3.2.4.3. For the same reasons, the Committee supports Article 10(3)(b) (unaccompanied minors), Article 19 (responsibility of another Member States for examining applications for asylum) and Article 8(7).

3.2.4.4. The Committee considers that the text of Article 7(c) should be more ambitious. In addition to granting applicants the right to communicate with the UNHCR or other organisations working on its behalf at all stages of the procedure, it should also entitle them to contact recognised NGOs which defend and promote the right of asylum.

3.2.5. Article 8(2) - personal interview

3.2.5.1. Concerning the final part of this article, the Committee wonders how the official is to request the applicant's agreement. The Committee proposes that this part be deleted or reworded as follows: "... the official must read out the transcript, informing the interviewee of its contents, and explain to him that he has access to this transcript, including for the purposes of any future uses". In addition, the proposal should also give the applicant the opportunity to receive a copy of the transcript, which should be duly validated according to the methods used in the reception country (for example, by the applicant signing each page).

3.2.5.2. Article 8(2) is supplemented by point (6) of the same article, which provides that in the regular procedure, each applicant for asylum must be given an opportunity, within a reasonable time-limit, to consult the transcript of a personal interview on the substance of his application for asylum and to make comments on it.

3.2.5.3. The Committee believes that the possibility of consulting the transcript and making comments under Article 8(6) ought to be extended to the accelerated procedure: in this case, the "reasonable time-limit" must of course be shorter.

3.2.5.4. Clarification is needed regarding an ambiguity in Article 8(7), which states that the Member States must ensure that "an official and an interpreter of a sex chosen by the interviewee" are involved in the personal interview if there are reasons to believe that the person concerned would otherwise experience difficulty. Does this mean that the applicant is entitled to choose the sex of the interpreter only? This does not appear to be the best way of creating the climate of trust during the interview which is needed to break down the barrier caused by the difficulties experienced by the applicant. In view of this aim, the interviewee should be able to choose the sex of both the official and the interpreter involved in the interview.

3.2.5.5. Here the Committee would also draw attention to Article 10(2) of the proposal, which deals specifically with the personal interview of unaccompanied minors. The article specifies that Member States are to ensure that these interviews are conducted by an official "trained with regard to the special needs" of this vulnerable group. Such a provision is consistent with Article 14(1)(c) of the proposal. The Committee suggests that whenever separated children are interviewed or require access to services, they be provided with interpreters who speak their preferred language, in line with the statement of good practice drawn up under the "separated children in Europe" programme (a joint initiative of the UNHCR and the international Save the Children alliance which seeks to provide a straightforward account of the policy and practices required to implement and protect the rights of separated children in Europe).

3.2.5.6. In the interests of transparency and procedural rigour, the Committee thinks that the applicant should also be allowed access to the available information on which the application decision was based, particularly regarding his country of origin.

3.2.5.7. Similarly, the Committee proposes that the official mentioned in Article 8(1) should preferably also be a member of the decision-making body.

3.2.6. Article 9 - legal assistance

3.2.6.1. The Committee advocates free legal assistance at every stage of the procedure (admissibility, regular and accelerated procedure) and not only in the event of an adverse decision by the determining authority as stipulated by Article 9(4). Asylum applicants are vulnerable people who are not familiar with legal procedures, and who therefore need a legal representative.

3.2.6.2. Similarly, the Committee believes that the possibility for the applicant's legal representative to be present during the personal interview should be provided for in the accelerated procedure, as is the case in the regular procedure [Article 9(3)].

3.2.6.3. Moreover, in the light of Article 23(3) and Article 29(3) (allowing the authorities to make a decision without a personal interview with the applicant in the regular and accelerated procedures respectively), the Committee considers that there must be clear guarantees that the competent authority will always conduct a personal interview. The purpose is to ensure that the asylum application is examined as fully as possible, so that a fair decision can be made.

3.2.6.4. Article 9(2) must not be used as a way of denying asylum applicants legal advice. Lawyers specialising in asylum law may not be available in all situations or at all stages of the procedure. Asylum applicants should also be able to receive advice from representatives of NGOs with expertise in this field, for example.

3.2.7. Article 10 - unaccompanied minors

3.2.7.1. The Committee considers that the expression "as soon as possible" should be deleted from Article 10(1)(a). On the basis of the principle of the best interests of the child (Article 3 of the UN Convention on the Rights of the Child), Member States must ensure that a legal guardian or adviser is appointed in order to assist and represent the minor with respect to the examination of the application. This appointment must be made prior to the personal interview in order to make the provisions of Article 10(1)(b) effective.

3.2.7.2. By the same token, and in the light of the principles underpinning the statement of good practice referred to in point 3.2.5.5 above, the Committee proposes that unaccompanied minors should not be denied access to the asylum procedure. Once they are admitted, they should be channelled to the regular procedure, and application of the principle of the benefit of the doubt should be specifically guaranteed.

3.2.7.3. The Committee also proposes that specific provision be made for the vulnerable situation of unaccompanied minors, with special emphasis on the personal interview.

3.2.7.4. Here the Committee would mention the failure to indicate other vulnerable cases, such as elderly people on their own or, in particular, women who have been subject to abuse.

3.2.7.4.1. Article 28 of section V of the June 1995 Resolution on Minimum Guarantees for Asylum Procedures (Additional safeguards for unaccompanied minors and women) refers specifically to this situation.

3.2.7.4.2. Women, children and young people are particularly vulnerable to violence, especially sexual violence.

3.2.7.4.3. In the same way, UNHCR Executive Committee (EXCOM) Conclusion No 39 on Refugee Women and International Protection, which retains all its relevance, acknowledges the need for specific provision in this area.

3.2.7.4.4. The Committee therefore proposes that the directive include an article giving broad recognition to the particularly vulnerable position of asylum applicants who have been traumatised as a result of torture, rape or other forms of physical and/or sexual abuse, offering them special attention and support, including specialist psychological and/or psychiatric help, and greater adherence to the principle of the benefit of the doubt.

3.2.7.4.5. It would be better not to apply the accelerated procedure in such cases, given their special features and the vulnerability of these applicants, where an application is submitted for the first time in any one of the Member States.

3.2.8. Article 13(b) - determining authorities' access to precise and up-to-date information on the situation in the countries of origin of asylum applicants and in transit countries

3.2.8.1. As mentioned earlier, the Committee considers that in addition to the UNHCR, reference must be made here to organisations such as Amnesty International, Assistência Médica Internacional, the Red Cross or Médecins sans Frontières, as well as other humanitarian organisations which are recognised as representing civil society and are active in this field, and which can provide this kind of information in each of the Member States. The purpose would be to ensure that decisions on applications for asylum are underpinned by accurate, objective and independent information based on a humanitarian approach.

3.2.8.2. In view of the rising numbers and particular nature of applications based on religious persecution, the possibility of asking advice from the relevant religious communities should be added to Article 13(1)(c).

3.2.9. The Committee welcomes the emphasis laid by the draft directive on proper and specific training for personnel responsible for carrying out the duties laid down in the directive (Articles 13 and 14), including border officials.

3.2.9.1. As regards the regular European-level training which is planned for the medium term, the Committee proposes that explicit reference be made to more active involvement of bodies such as the UNHCR, the European Council on Refugees and Exiles (ECRE), and NGOs whose recognised aim is to defend and promote asylum rights.

3.2.9.2. The Committee suggests that financing for this regular training in the Member States could be provided by the European Refugee Fund and the Odysseus programme.

3.2.10. The Committee is also pleased to note that the following principles are enshrined in the draft directive:

- Principle of "non-refoulement" (Article 5). In keeping with this principle, no refugee may be expelled or sent back to a country where his life or freedom would be threatened. It must be applied whenever a refugee arrives within the territory or at the border of a country, irrespective of whether or not they have been formally recognised as refugees (Article 33 of the Geneva Convention, Article 3 of Protocol No 4 to the European Convention on Human Rights, EXCOM Conclusion No 6).

- Principle of confidentiality of information regarding all applications for asylum (Article 15).

3.2.11. The Committee also welcomes the guarantee that asylum applicants shall not be detained for the sole reason that they are seeking asylum. If detention does take place - in accordance with a procedure prescribed by national law and only for as long as is necessary - provision is to be made for regular reviews of the detention order (Article 11).

3.2.11.1. This possibility of review should not be at the sole discretion of the administrative or political authorities.

3.2.11.2. The Committee stresses that if an asylum applicant is detained, the detention conditions should reflect the detainee's non-criminal status. Like all other asylum applicants, detainees should have access to free, independent, expert legal advice. The UNHCR, specialist NGOs and legal representatives should have access to the detention centres.

3.2.11.3. The Committee would like clarification regarding the purpose of Article 11(c), as the situation which it refers to appears to be catered for by Article 11(b).

3.2.12. Articles 21 and 22 - safe third country

3.2.12.1. These articles represent a balanced solution between Annex I (basic requirements) and lists drawn up by the Member States themselves. The Committee believes that the procedural guarantee would be strengthened by securing the Member States' agreement to limit this concept to the requirements under Annex I. The purpose of this suggestion is to prevent the "safe third country" designation being used to restrict access to the asylum procedure, and to ensure that applicants have safeguards against "refoulement".

3.2.12.2. The directive must also ensure that the criteria set out in these articles are examined on a case-by-case basis, regardless of any readmission agreements. It is not enough to guarantee that the applicant will be admitted to a third country: the protection offered there must be effective, meaning that the applicant must have access to the asylum procedure as applied in that country.

3.2.12.3. An application for asylum cannot be dismissed solely by invoking the concept of "safe third country" defined in Annex I. The Committee considers it essential for all the reasons put forward by the applicant in support of the application to be examined and, if the application is turned down, the applicant must have an effective right of appeal before an impartial and independent authority or court of law.

3.2.12.4. The Committee recommends that the term "generally" in point I of Annex I, used in connection with the designation requirements, be reworded in a more definite and less vague way. It proposes replacing this term with "in a general and continuous manner", to take account, in particular, of specific exceptional, local circumstances, together with other possible reasons for suspending the usual observance of the standards and principles mentioned.

3.2.13. The Committee considers that the time-limits laid down in Article 23 (admissibility stage), Article 24 (regular procedure) and Article 29 (accelerated procedure), and the time-limits for appeals, are reasonable and realistic.

3.2.13.1. The Committee also feels that Article 24 provides an important guarantee of the applicant's right, under the regular procedure, to request a decision from the reviewing body in cases where the determining authority has not taken a decision within the time-limit. In cases of non-compliance with the prescribed time-limits for the admissibility stage or the accelerated procedure, the asylum application is to be processed under the regular procedure (Articles 23 and 29 respectively).

3.2.14. Article 25 - investigative standards for examining applications

3.2.14.1. The proposed wording is designed to ensure a fair procedure. It follows the recommendations of the Handbook on Procedures and Criteria for Determining Refugee Status published by the UNHCR in Geneva in January 1992, enshrining the principle of the benefit of the doubt [Article 25(4)]. The Committee welcomes this.

3.2.14.2. The Committee does not believe that possible false declarations made by the applicant should by themselves constitute grounds for rejecting the asylum application. There may be extenuating circumstances. Similarly, use of false documents should not count against the applicant provided he can give a reasonable explanation for them [argumentum ex contrario from Article 28(1)(a)].

3.2.14.3. Article 25(2) includes travel routes among the relevant facts which an applicant must put forward to the competent authorities. Although travel routes are an important element, they are not a decisive or predominant factor in determining refugee status.

3.2.14.4. Article 25 makes no mention of the burden of proof. In this connection, the Committee proposes that a reference be made to paragraph 196 of the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status.

3.2.15. Article 28 - manifestly unfounded applications

3.2.15.1. The Committee proposes that the words "only in accordance with the provisions of the present article" be added here, in order to ensure that Member States cannot arbitrarily adopt other grounds in addition to those set out in the article.

3.2.15.2. The Committee would also urge that it be clearly stated in the draft directive that the principles which are essential to a fair asylum procedure, described in Section I, apply to all asylum applications, including those which are "manifestly unfounded". All procedures, including the accelerated procedure, must comply with the minimum guaranteed standards contained in the proposal.

3.2.16. The Committee highlights and warmly welcomes the provision of Article 28(2)(a) that the alternative of internal flight may not be considered grounds for rejecting an application.

3.2.17. Articles 30 and 31 - safe country of origin

3.2.17.1. These articles represent a balanced solution between Annex II (basic requirements) and lists drawn up by the Member States themselves. The Committee believes that the procedural guarantee would be strengthened by securing the Member States' agreement to limit this concept to the requirements under Annex II. The purpose of this suggestion is to prevent the "safe country of origin" designation being used to restrict access to the asylum procedure, which could even lead to cases of discrimination contrary to the provisions of Article 41.

3.2.17.2. The Committee considers that this is a difficult concept to pin down, since a country may be "safe" in general terms but dangerous for a specific individual or group of people. As the situation in a country may change from day to day, close attention must be paid to the international situation and the above-mentioned lists must be flexible and kept up-to-date.

3.2.17.2.1. The Committee would recall that asylum is a fundamental right and as such, is owed by the country where the application for asylum is lodged: it is not an option left to the good will of, or an ad hoc appraisal by, that country. This fact must be explicitly mentioned in the text of the directive.

3.2.17.3. Turning to the requirements contained in Annex II, the Committee stresses that in order for a country to be considered a "safe country of origin", it must fully comply with the criteria set out in paragraphs A and C of point I of the annex. Similarly, the remedies referred to in paragraph D of point I must be effective.

3.2.18. Article 32 - appeals procedures

The Committee welcomes the enshrinement in the draft directive of "the right [for applicants] to appeal against any decision taken on the admissibility or the substance of their application for asylum".

3.2.19. Article 33 - appeals procedures

The general rule is that appeals, under both the regular and accelerated procedures, have a suspensive effect. In the interests of preventing "refoulement", the procedural guarantee would be strengthened by securing Member States' agreement to limit the number of derogations from this rule under Article 33(2).

3.2.20. Article 41 - non-discrimination provision

The Committee welcomes the inclusion of this provision in the draft directive, reflecting Member States' international obligation to protect refugees from discrimination.

3.2.21. Article 43 - Commission report

Given the role which the Economic and Social Committee plays in actively ensuring greater involvement of civil society in asylum issues, and in order to preserve the European tradition of protecting human rights, of which the present issue represents one facet, the Committee considers that the report on the implementation of the directive in the Member States, which the Commission is to submit to the European Parliament and the Council, should also be submitted to the Committee.

4. Conclusions

4.1. The Committee supports adoption of the proposal for a directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, seeing it as a welcome and necessary step towards achieving a common European policy on asylum.

4.2. The present opinion proposes a number of additions which the Committee believes should be taken on board, in order to:

- clarify and consolidate the rights of asylum applicants and refugees;

- provide asylum applicants and refugees with fair and, as far as possible, harmonised procedures;

- make asylum applicants more aware of their rights under the draft directive;

- promote a climate of shared responsibility and commitment on the part of the Member States and civil society in upholding the right of asylum.

The Committee believes that with the proposed recommendations, the directive will establish minimum standards that will form the basis for an asylum policy. These minimum standards must however be viewed as an initial plank for a set of common standards which are vital in order to achieve harmonised provisions that will provide the necessary protection for refugees and allow them to move freely within the EU in future.

4.3. To this end, the Committee calls on the Council and European Parliament to consider the alterations suggested in the present opinion and strive to adopt the measures proposed therein, incorporating them in the text of the proposed Directive at the earliest possible opportunity.

Brussels, 26 April 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) COM(2000) 578 final.