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"
Date: 2001-07-12
Institutions: European Economic and Social Committee
Subjects: European Union, right of asylum, rights of aliens

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4.5.4.
The European population must be better informed
on the negative impact of ‘black’ or illegal work and the
benefits, for the welfare state, of legalising the position of
illegal immigrants.

4.5.5.
Public bodies, at European and national level, must
devote more work and resources to mobilising public opinion
in favour of social integration and against racism and xeno-
phobia.

Brussels, 12 July 2001.

The President

of the Economic and Social Committee

Göke FRERICHS

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

Points 13, 14 and 15 of

the
1.1.
European Council in Tampere on 15 and 16 October 1999
state that:

the conclusions of

‘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 Conven-
tion, 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 mini-
mum 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.’

The communication which the Commission has issued
1.2.
pursuant to this mandate is short, dense and ambitious. It sets
the scene for more specific proposals which will be the subject

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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.

2. Comments

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 appli-
cable procedures, to a second stage in which the common
procedure is integrated and there is less scope for flexibility
and options.

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

level of

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.

rise

2.1.
After reaching a peak between 1992 and 1994,
requests for asylum in the EU fell until 1998. They then began
in 2000
to
(387 330 requests in 1999 and 389 590 in 2000). This trend
is borne out by net migration figures, which went from
1 030 000 in 1990 to 478 000 in 1998 (1).

again and

continued

trend

this

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 400 000 people to seek refuge in
Germany alone.

2.2. While warning against the danger of downward har-
monisation 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;

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

(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.

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— 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) (1).

countries and obtained not only through the normal diplo-
matic 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.

2.2.1.
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 increas-
ingly 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

2.3.2.
The procedural method of the ‘one-stop-shop’ should
be adopted by all Member States. By centralising the examin-
ation 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.
retained, they should at least be backed by firmer guarantees.

If expedited non-admission procedures are to be

2.3.2.4.
Asylum-seekers should be able to rely on appropri-
ate 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.
bearing in mind the obviously greater risks they face.

Female refugees should receive special attention,

(1) 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.

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.

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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
is up to the border
inconsistent with this approach.
authorities to check for visas.

It

This alternative mechanism could also provide
2.3.3.3.
a framework for proposals for resettlement programmes
(currently conducted by only four Member States), in cooper-
ation with NGOs and the UNHCR.
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.

In this context

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.

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.

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

The Committee hopes that the candidate countries
2.3.5.
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
the applicant countries could discourage them from
of
implementing the Community’s legislation on immigration
and asylum.

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.

2.3.5.2. 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.

2.3.4.2.
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:

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 (1)] respected.

— making the common position of 4 March 1996 legally
binding — this provides a uniform interpretation of the

(1) 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).

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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.

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

to the commitment

2.4.2.1.
In both cases the approach must be highly person-
alised. 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.

A single status would undoubtedly simplify the
2.4.3.1.
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.

The concept of ‘civic citizenship’ could provide a
2.4.3.4.2.
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.

Article 63 of the consolidated Treaty states that
2.4.4.
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.

2.4.3.2.
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.

2.4.4.2.
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.

2.4.3.2.1.
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.

The content of rights (access to employment, social
2.4.3.3.
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.

2.4.5.
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.

2.4.3.4.
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’.

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

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3. Conclusions

In the last century, even before the protection of
3.1.
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.

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
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.

to the principles laid down at

Consequently, political, economic and religious
3.1.1.
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

The Committee thinks that the Commission should
3.2.
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