EN Official Journal of the European Union C 18/80

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted’

(recast)

COM(2009) 551 final/2 — 2009/0164 (COD)

2011/C 18/14

Rapporteur: Mr PÎRVULESCU

On 26 November 2009 the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the

Proposal for a directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (recast)

COM(2009) 551 final/2 — 2009/0164 (COD).

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee’s work on the subject, adopted its opinion on 23 March 2010.

At its 462nd plenary session, held on 28 and 29 April 2010 (meeting of 28 April 2010), the European Economic and Social Committee adopted the following opinion by 136 votes with 2 abstentions.

1. Conclusions

1.1 The Committee endorses the objectives set by the Commission with a view to completing the Common European Asylum System (CEAS); it would highlight, however, the disparity between the objectives set at EU level and practices at national level, which could be exacerbated by the economic crisis and its ensuing social and political effects.

1.2 The Committee believes that revising the directive could help create a much more suitable legislative and institutional basis for ensuring a high and consistent level of support to persons seeking international protection.

1.3 The Committee warns, however, that also in the case of this EU policy, there is a risk that excessive rhetoric and declarations of good intent may strip the values upheld by the EU of any meaning. Therefore, in the second phase of implementing this policy, in which the co-decision procedure applies, legislative conditions should be put in place that enable real access for asylum seekers to the labour market and to training programmes.

1.4 The Committee underlines the importance of recognising the role played by civil society in general, and particularly by NGOs specialised in the field of asylum and asylum-related issues concerning refugees, and calls for them to be granted full access to all the procedures and places relevant to their work. However, it stresses the fact that these NGOs cannot take over the role and responsibilities of governments in this field.

1.5 The Committee notes with concern that national and EU practices relating to the expulsion of people who may need international protection lack the transparency that could lend them legitimacy in the eyes of the citizens of the countries concerned and the international community.

1.6 The Committee believes that the various budgetary constraints ensuing from the economic crisis should not lead to a reduction in the level and quality of protection received by beneficiaries.

1.7 The Committee supports the objective of enhancing the content of international protection by recognising qualifications and facilitating access to vocational training and jobs, as well as to integration facilities and accommodation.

2. Introduction

2.1 The idea of creating a Common European Asylum System (CEAS) as part of the Area of Freedom, Security and Justice derives from the aim of fully implementing the Geneva Convention on the status of refugees (1951) and from the common humanitarian values shared by all Member States. The conclusions of the Tampere European Council and subsequently the Hague Programme identified the CEAS as the most important instrument in establishing a common asylum procedure and a uniform protection status valid throughout the EU.

2.2 Significant progress was made over 1999-2006, including the adoption of the four instruments which constitute the current acquis. Council Directive 2004/83/EC (‘the Qualification Directive’) enabled common criteria to be defined for the identification of persons who may apply for international protection and ensured that at least a minimum level of benefits is available for these persons in all Member States. Under the Hague and Stockholm programmes, the Commission undertook to evaluate progress made in the first phase and to propose a series of measures to the Council and the European Parliament by the end of 2010.

2.3 Since 2002 the European Economic and Social Committee has been involved in shaping and implementing the Common European Asylum System by issuing a series of opinions, including an opinion on the directive that this proposal is seeking to revise (1), an opinion on the Green Paper on the Future Common European Asylum System (2), and an opinion on the Policy plan on asylum (3).

2.4 With the Policy plan on asylum (4), adopted on 17 June 2008, the Commission proposed completing the second phase of the CEAS by raising protection standards and ensuring their consistent application across the EU. The European Pact on Immigration and Asylum, adopted by the European Council on 17 October 2008, provided further political endorsement for this policy and the objectives set.

2.5 The Policy plan proposed amending the Qualification Directive as part of a wider package including amendments to the Dublin and Eurodac Regulations and to the Reception Conditions Directive (5), and the adoption on 19 February 2009 of a proposal to establish a European Asylum Support Office (EASO) (6). Further measures proposed included strengthening the external dimension of asylum, inter alia through an EU programme on resettlement and developing regional protection programmes.

2.6 Amending the directive could help create the legislative and institutional basis on which to ensure a high and consistent level of support for international protection applicants. In the second phase, the co-decision procedure will apply, in accordance with Article 294 TFEU, which requires a qualified majority vote in the Council and the involvement of the European Parliament as co-legislator.

2.7 The directive needs to be recast given the ambiguity of the initial wording, which was identified by Member States as a major reason for its current failings, which include varying rates of acceptance of applications and a large number of contested decisions.

2.8 Amending the directive will enable its contents to be brought into line with the decisions of the European Court of Justice and the European Court of Human Rights, which constitute a suitable basis on which to clarify the wording of the acquis and the set of procedures for granting international protection.

2.9 This revision is also necessary because the directive deals with an important aspect of the mechanism for granting international protection. The standards outlined in the directive complement other parts of the acquis, particularly the Asylum Procedures Directive. Recasting the directive, in tandem with other institutional and financial support measures, would constitute significant progress towards the construction of an operational and effective Common European Asylum System.

2.10 The Committee, in its capacity as the representative of European organised civil society, has appreciated efforts to consult civil society and experts in the process to frame an asylum policy. It notes the consultations held on the drafting of the Green Paper issued by the European Commission in June 2007 (7), on the preparation of studies with a view to implementing the directive (e.g. the Odysseus report) and on the external report on the success of asylum policy (8).

2.11 The Committee recognises the importance of local and regional authorities for the success of asylum policy, particularly as regards the integration of international protection beneficiaries; it thus believes that the Committee of the Regions should also be consulted on asylum policy.

2.12 The Committee is extremely concerned about the practices of Member State governments and the Frontex agency as regards the expulsion of people who may need international protection (9). These operations, which have increased in frequency and scale, should be carried out under conditions of full transparency and accountability (10). The Committee would recommend that Frontex and the European Asylum Support Office work together to prevent human rights violations. Expelling people to countries or areas where their safety is at risk is a clear infringement of the principle of non-refoulement. The Committee calls for a report to be drawn up urgently on the activities of Frontex and for procedures to be established governing its handling of expulsions, in cooperation with national authorities. The Committee warns that strengthening Frontex in the absence of procedures to ensure that human rights are upheld could jeopardise the entire Common European Asylum System and the credibility of the EU and its Member States.

2.13 The Committee believes that the CEAS cannot function properly unless the principle of solidarity between Member States is put into practice. Certain countries are under considerably more pressure than others, mainly because of their geographical location. The CEAS will only succeed if these Member States are supported by the others and by the EU’s specialised agencies.

3. General comments

3.1 The Committee welcomes the proposal to recast the directive, the content of which reflects previous recommendations issued by it, especially as regards the treatment of applicants and clarifying the status of persons who may benefit from international protection. However, in order to create an operational Common European Asylum System, much remains to be done. This system cannot be built unless it is firmly anchored within a set of common values and principles which place human dignity and security at the heart of the actions of the EU and its Member States. Moreover, the construction of this system is undermined by a lack of instruments and resources to ensure a transparent and effective procedure for granting international protection, coupled with policies and programmes for integrating those receiving protection into the societies and economies of the Member States.

3.2 A significant divergence remains between EU legislation on the one hand and national legislation and practices on the other (11). Harmonisation should not be based on the lowest common denominator of protection. Given that national practices vary so hugely, as reflected in the differing rates of acceptance of applications and the level of contested decisions and secondary movements, the implicit principle of solidarity between Member States is not being applied.

3.3 The Committee has repeatedly promoted a series of principles which should always guide the actions of Member States and the EU institutions (12): the principle of non-refoulement, whereby no refugee may be expelled to a country where their life or freedom would be in danger; the principle of confidentiality of information contained in asylum applications; and the guarantee that asylum applicants shall not be detained for the sole reason that they are seeking asylum.

3.4 In its opinion on the Green Paper on the future Common European Asylum System (13), the Committee supported these principles, and made specific recommendations on enhancing the treatment of persons seeking international protection. It called for EU and national institutions to cooperate to ensure that persons in need of international protection may enter the EU at any time and for applications to be considered seriously and individually. The Committee also recommended discontinuing lists of countries considered safe and setting up a European asylum support office (EASO).

3.5 In addition to clarifying the values and principles underpinning action in the field of asylum, the Committee recommends working towards certain specific objectives designed to substantially improve the treatment of persons seeking and benefiting from international protection. The Committee advocates establishing a set of key indicators which could be used to monitor and measure progress towards these objectives.

3.6 The Committee supports the creation – via the EASO – of a European security risk analysis and assessment system in respect of individuals or groups in third countries. There are many systems in existence for assessing risk and political violence, which have been developed both by national authorities and by NGOs, universities and research centres (14).

3.7 As regards data collection, the Committee would advocate the involvement, where necessary, of the European External Action Service (EEAS), diplomatic representatives of Member States and international and non-profit organisations with access to and activities in third countries. This analysis and assessment system would serve as a reference point for national authorities with a view to speedier, more efficient processing of applications for international protection. The system would create a common assessment basis and would enable real-time risk identification.

4. Specific comments

4.1 In its presentation of the legal elements of the proposed directive, the Commission proposes a set of definitions with a view to ensuring higher standards of protection and continued harmonisation of existing standards. To this end, the Committee proposes clarifying and developing certain aspects in order to help establish practices that tie in with the principles and values underpinning the EU.

4.2 Actors of protection. The Committee considers it inappropriate to extend the definition of actors of protection and regrets that any non-State bodies such as NGOs and international organisations were initially included in the list of actors of protection. While such actors (international organisations, NGOs) may be willing and even able to protect people from a given country, ultimate responsibility for this does not lie with them. International organisations are answerable to Member States, while NGOs are answerable to their members and financial backers. Only the State can provide valid and effective protection in the medium and long term, as it is answerable to its own people, who obviously have the greatest interest in its viability and stability. While actors of protection may provide useful or even vital services in the short term, especially in resolving humanitarian issues, responsibility for the protection of persons in a given country cannot be entrusted to them, not even partially. The presence of such actors cannot be cited as grounds for refusing international protection.

4.3 Internal protection. The existence of internal protection is not sufficient to ensure the security of potential international protection applicants. In some cases, only a small part of the country is safe, and it is unlikely that all of those at risk could go there. There are also situations where the control of certain areas is disputed and it is unclear with whom responsibility lies for ensuring order and security. Thus an important clarification is needed. Internal protection is valid only where the bulk of the territory is under the control of a central authority willing and able to ensure internal order, a minimum level of public services and adequate protection of the rights and safety of individuals.

4.4 Causal link. It is particularly useful to provide for a causal link in cases where the persecution is committed by non-State actors. In cases of persecution where there is no government protection, applications for international protection are justified. There should be a broad, closely-monitored interpretation of this link in all situations in which a government refuses – implicitly or explicitly – to protect its people (for example, from organised crime).

4.5 Membership of a social group. The Committee welcomes the inclusion of the gender criterion for the definition of potentially at-risk social groups. Moreover, in order to better detect situations in which women are particularly at risk, a cross-cutting approach should be adopted when interpreting the Geneva Convention. The Committee would also highlight the fact that sexual orientation can be a cause of persecution. In certain societies the security and welfare of individuals is linked to their gender. Organisations and institutions with expertise in this field should be included in consultations on asylum policy, as such bodies would provide a more complete picture of gender-related risks. The Committee also recommends that the gender issue be recognised in the work of the EASO through the establishment of specialised structures.

4.6 Cessation of refugee status. The Committee welcomes the proposed change, considering it in keeping with the set of principles and values underpinning asylum policy. The status of a person under international protection should only cease when returning to the place of origin no longer presents a risk to the beneficiary.

4.7 Differentiation regarding the content of the two protection statuses. The Committee welcomes the move towards unifying the two protection statuses, which it has repeatedly called for. This could enable, in future, more complete protection for persons at risk and help improve their integration in EU Member States. At the same time, unifying the two protection statuses should not lead directly or indirectly to a reduction in the level and quality of protection.

4.8 Content of protection. The content of protection is a sensitive area of asylum policy. The divergences between Member States are also more significant than in the case of the procedures for granting international protection per se. It is vital that in developing its asylum policy the Commission release the funds needed to thoroughly research national policies and programmes in this area. In the absence of proactive measures, the granting of international protection will be devoid of substance and will result in implicit discrimination against beneficiaries of this status. The Committee would recommend involving trade unions and employers’ bodies in framing and implementing asylum policy at national level.

4.9 The Committee welcomes the inclusion of provisions on the recognition/equivalence of diplomas and other qualifications as well as on fostering access to vocational training courses for international protection beneficiaries, as these are important steps towards their economic and societal integration and a better quality of life. Access to the labour market should be promoted through active measures to combat discrimination and encourage businesses.

4.10 Family members. The Committee welcomes the clarification of the definition of family members and believes that this will enable a more accurate and consistent assessment of international protection applications in all EU Member States.

4.11 The Committee supports the ‘child’s best interest’ criterion as a factor in assessing international protection requests.

Brussels, 28 April 2010. The President of the European Economic and Social Committee Mario SEPI

(1) OJ C 221, 17.9.2002, p. 43.

(2) OJ C 204, 9.8.2008, p. 77.

(3) OJ C 218, 11.9.2009, p. 78.

(4) COM(2008) 360 final.

(5) COM(2008) 815 final; COM(2008) 820 final; COM(2008) 825 final.

(6) COM(2009) 66 final.

(7) COM(2007) 301 final.

(8) GHK, Impact assessment studies on The future development of measures on the qualification and status of third country nationals or stateless persons as persons in need of international protection and on the content of the protection granted, based on Council Directive 2004/83/EC and The future development of measures on procedures in MS for granting and withdrawing refugee status, based on Council Directive 2005/85/EC, Multiple framework service contract JLS/2006/A1/004.

(9) See the report by Human Rights Watch (HRW): Pushed Back, Pushed Around, Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers. HRW 2009.

(10) The Committee welcomes the Commission’s intention to bring transparency to these procedures.

(11) COM(2009) 551 final – SEC(2009) 1374, pp. 14-16.

(12) OJ C 193, 10.7.2001, p. 77-83.

(13) OJ C 204, 9.8.2008, p. 77-84.

(14) Many such assessment systems could be listed, e.g. the Failed States index of the Fund for Peace: http://www.fundforpeace.org/web/index.php?option=com_content&task=view&id=229&Itemid=366; Minorities at risk: http://www.cidcm.umd.edu/mar/about.asp; Conflict and peace: http://www.cidcm.umd.edu/pc/; the Global report of the Center for Systemic Peace (CSP): http://www.systemicpeace.org/; and the Human Security Report: http://www.humansecurityreport.info/index.php?option=content&task=view&id=28&Itemid=63.