Opinion of the Economic and Social Committee on the "Proposal for a 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" (COM(2001) 510 final — 2001/0207 (CNS))
Date: 2002-05-29
Institutions: European Economic and Social Committee
Subjects: foreign national, political asylum, political refugee, right of asylum, stateless person

17.9.2002

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Official Journal of the European Communities

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Opinion of the Economic and Social Committee on the ‘Proposal for a 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’

(COM(2001) 510 final — 2001/0207 (CNS))

(2002/C 221/11)

On 15 November 2001 the Council decided to consult the Economic and Social Committee, under
Article 95 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 13 May 2002. The rapporteur was Ms Le Nouail
Marlière.

At its 391st plenary session held on 29 and 30 May 2002 (meeting of 29 May), the Economic and Social
Committee adopted the following opinion by 105 votes to 2, with 1 abstention.

1.

Introduction

This Commission proposal, which aims to establish a
1.1.
Common European Asylum System, is one of a series of draft
directives currently being examined by the Committee. It seeks
to implement Article 63 of the Treaty, the Vienna Action Plan,
Conclusion 14 of the Tampere European Council and relevant
references in the Scoreboard presented to the Council and the
Parliament in November 2001.

1.2.
This draft directive seeks to be a fundamental tool in
making national asylum systems more effective and a Common
European Asylum System more credible. Refugee status is
governed by the 1951 Geneva Convention, as amended by the
1967 New York Protocol and by the Dublin Convention,
which entered into force on 19 August 1997 and which
determines the European signatory state that is responsible for
examining an asylum application.

1.3.
The Commission has already presented a series of
proposals on the harmonisation of asylum policy, on which
the ESC has issued opinions:
in September 2000, a draft
directive on procedures for granting and withdrawing refugee
status; in April 2001 a draft directive on minimum standards
on the reception of applicants for asylum; and in July 2001 a
draft regulation determining the Member State responsible for
examining an asylum application.

1.4.
The purpose of this proposal is to establish a common
definition of refugees for third country nationals and stateless
persons, as well as common standards concerning their rights
within the European Union.

This definition includes non-state organisations or
1.4.1.
agents within the definition of the perpetrators of persecution
of whom the refugees are victims, in cases where the State does
not provide effective protection. By adopting this approach the
Commission is proposing to follow the practice in the vast
majority of EU Member States whereby if the persecution
is well-founded,
the source of the persecution is deemed
irrelevant.

1.4.2.
However the proposal states that if another part of
the territory of the asylum seeker’s state of origin can be
considered safe, then he or she can be sent back there.

1.4.3.
The proposal also addresses the specific problem of
women and children. It includes special rules for assessing
their claims and obliges Member States to provide specific
medical or other assistance to victims of torture, rape or other
serious psychological, physical or sexual violence.

1.5.
It should be noted that the Commission has decided to
issue a single document containing minimum standards for
granting and withdrawing refugee status and subsidiary protec-
tion status.

1.6.
The proposal does not address the procedural aspects
of granting and withdrawing refugee status or subsidiary
protection status.

1.7.
The proposal reflects the fact that the cornerstone of
the system must be the full and inclusive application of the
Geneva Convention, ensuring that no-one is sent back to
further persecution,
i.e. maintaining the principle of non-
refoulement. This is to be complemented by measures offering
subsidiary protection to persons not covered by the Conven-
tion who are nonetheless in need of international protection.

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1.8.
The Commission claims that its proposal aims to
harmonise the application of the right of asylum in the fifteen
Member States, thereby seeking to discourage the practice of
‘asylum shopping’, whereby asylum seekers seek out the most
generous systems.

2.1.2. Whilst endorsing the Commission’s focus on har-
monisation and integration, the Committee underscores the
need to safeguard those Member State practices most favour-
able to claimants.

1.9.

The proposal seeks to:

2.2. Recognition of status

— set out minimum standards on the qualification and status
of applicants for international protection as refugees or
beneficiaries of subsidiary protection status;

— ensure that a minimum level of protection is available
in all Member States for those genuinely in need of
international protection, and reduce disparities between
Member States’ legislation and practice in these areas as
the first step towards full harmonisation;

— limit secondary movements of applicants for inter-
national protection influenced solely by the diversity of
the applicable rules on recognising refugee status and
granting subsidiary protection status;

— guarantee a high level of protection for those who
need it, preventing certain asylum applications which
undermine the credibility of the system and recognising
the fact
to distinguish
is sometimes difficult
between economic migrants and applicants for asylum.

that it

1.10.
The proposal has seven chapters which cover the
broad aspects of the proposal, the general nature of inter-
national protection, qualification as a refugee, eligibility for
subsidiary protection, Member States’ minimum obligations
towards persons to whom they grant international protection,
and rules to ensure the complete implementation of the
Directive.

2. General provisions

2.1.

The definition of minimum standards

2.2.1.
Every applicant is entitled to claim refugee status, but
may or may not be granted protected status by the Member
State.

2.2.2.
The Committee welcomes the progress made towards
adopting common standards with a view to recognising the
status of refugee or of complementary protection.

2.2.3.
However it regrets that the Commission continues to
refer to the granting of status, rather than, in line with Article
1 of the Geneva Convention, the straightforward recognition
of a status existing as a result of the circumstances of the
applicant, independent of recognition by the Member State (1).

2.2.4.
The Committee notes that a draft regulation aiming
to improve the Dublin Convention and its application is
currently being prepared (2).

2.2.5. While stressing that the adoption of common stan-
dards for recognising refugee status or granting subsidiary
protection marks a step forward in realising the objectives of
the Tampere European Council, the Committee points out
that the procedure for determining which Member State is
responsible for examining the application has implications for
the assessment of the claim.

2.2.6.
The Committee underlines that adopting minimum
standards for the recognition of refugee status should also
make it
less crucial to ascertain which Member State is
responsible for examining the applications since applicants,
when they choose to which Member State to apply, would use
criteria other than potential differences in the way applications
are processed.

As it has set out in a previous opinion (3), the
2.2.7.
Committee considers that it will thus be possible to take
greater heed of the applicant’s choice of country to apply to,
taking account of
factors which
determine this choice and which are crucial for faster inte-
gration.

the cultural and social

2.1.1.
Every claim for protection, whether it is based on
one of the five reasons set out in the Geneva Convention, or is
complementary or subsidiary, is a fundamental universal right.
Standards may be ‘minimal’ on condition that they recognise,
respect and protect the fundamental and universal human
rights enshrined in the international texts on human rights.

(1) Council Resolution of 20.6.1995 on minimum guarantees for

asylum procedures. OJ C 274, 19.9.1996 p. 13- 17.

(2) See Committee Opinion adopted on 20th March 2002 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 (rapporteur: Mr Sharma).
(3) OJ C 260, 17.9.2001, point 2.3.4.3 (rapporteur: Mr Mengozzi).

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2.3.

The assessment procedure

2.5. Women

A distinction should be made between a request for
2.3.1.
international protection, an asylum claim and a request for
subsidiary protection.

The draft directive does not address the issue of
2.3.2.
temporary protection based on a collective assessment of
needs, as a decision was taken on this by the Council on
20 July 2001. This decision is of limited duration and applies
to large groups (1).

2.3.3.
The Committee agrees with the Commission in
specifying that any application for international protection is
presumed to be a claim for asylum, unless the third country
national or stateless person explicitly requests another kind of
protection [Article 2(g)].

2.3.4.
However, the definition of application for subsidiary
protection as a request ‘which cannot be understood to be on
the grounds that the applicant is a refugee within the meaning
of Article 1(A) of the Geneva Convention, or follows rejection
of such a request, ...’ [Article 2(i)] presumes that the request
for international protection has either been requested and then
examined as a request for asylum, or presumed and then
It should be specified or added that
examined as such.
the request itself
is subsidiary, whereas the protection is
complementary to non-recognised refugee status within the
meaning of Article 1(A) of the Geneva Convention.

2.3.5.
As pointed out by the Commission, a priority rule
exists, according to which it is always the status of refugee
which must be examined first during the assessment of a
claim, and whereby subsidiary protection cannot be a means
of weakening the protection conferred by refugee status. In
addition, under the Geneva Convention refugee status confers
extraterritorial rights and benefits which may take supremacy.

2.4.

Family members (Article 6)

The Committee

2.4.1.
family members
accompanying the applicant are entitled to claim the same
status of international protection as the applicant.

agrees

that

A distinction needs to be made here between the
2.4.2.
right
to claim asylum and the later stage of examining
this request which would result in the recognition or non-
recognition of refugee status and the benefits of international
protection.

2.4.3.
Indeed, although the claims are made on an individ-
ual basis and are always entitled to an in-depth and individual
assessment, implementation of the standards on subsidiary
protection must not contradict the provisions on the reunifi-
cation of the applicant’s family. This is crucial with a view to
re-establishing a normal and dignified life as soon as possible.

( 1) See ESC Opinion in OJ C 155, 29.5.2001 (Rapporteur: Mrs

Cassina).

the specific

Although not explicitly covered by the 1951 Geneva
2.5.1.
Convention,
forms of gender prosecution
— female genital mutilation, forced marriages, stoning to
death for presumed adultery, and the systematic rape of
women and young girls as a strategy of war, to name just a few
— should be acknowledged as strong reasons for submitting an
application for asylum and as legitimate grounds for granting
asylum in Member States.

2.5.2.
To this end, the proposal for a Directive should
include guidelines which incorporate a gender dimension in
applications for asylum so as better to secure equal recognition
between men and women seeking asylum; on past experience,
fewer women than men have been granted asylum on the
grounds of political opinion. When challenging prevailing
social standards, women cannot always count on protection
from the state in which they live.

2.5.3.
The gender dimension must also be recognised in
the processing of applications for asylum: qualified, trained
female interviewers and interpreters; confidentiality in the
interviewing process; non-confrontational
interviews with
open questions allowing women to talk about their experiences
of persecution in confidence; measures ensuring the physical
safety and privacy of women asylum seekers in reception or
detention centres; access to specific services responding to
women’s health needs; and access to legal aid and represen-
tation,
including the right to contact and be contacted by
women’s NGOs and/or NGOs which deal with asylum.

2.5.3.1.
To facilitate these contacts, women should receive
lists of NGOs that could help them with their application
process. It would also be useful if the NGOs in question could
be informed when there are women at reception centres.

2.5.3.2.
There is no advantage in obtaining refugee status if
protection is inadequate. This is well illustrated by the case of
women who are driven into prostitution. Women must be
guaranteed access to decent work and be free to join a trade
union.

2.5.4.
Lasting solutions must be pursued such as the
adoption of measures encouraging the development of women
asylum seekers’ skills and qualifications during the asylum
process, which will facilitate their independence and sub-
sequent
their claim is
successful, or their re-integration in their country of origin if
their asylum claim is rejected, without prejudice to other
possible measures geared to their living conditions and aimed
at fully restoring to them, as soon as possible, a normal and
dignified life.

integration in the host country if

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3. Special provisions

3.4. Cessation of subsidiary protection status (Article 16)

3.1.

The consequences of cessation of refugee status (Article 13)

The Committee wishes to draw the Commission’s
3.1.1.
attention to the fact that when a residence permit is revoked
but the state of origin has not yet returned the applicant’s
travel documents nor restored his nationality, the person no
longer has protection nor valid residence documents.

3.4.1.
Subsidiary protection, which is complementary to
the protection granted to recognised refugees under
Article 1(A) of the 1951 Convention, should be improved.
Subsidiary protection should therefore draw on useful and
relevant humanitarian references with regard to the treatment
of people seeking protection. The cessation of status should
therefore not be expeditious, but should instead be based on
an assessment of the criteria upon which the protection was
granted.

3.1.2.
The Committee proposes that the Commission pro-
vide for the withdrawal of refugee status (cessation) to be
assessed in accordance with the same criteria as those upon
which the status of recognition was based.

3.4.2.
The Committee also suggests using the same terms
for Article 16 as for Article 13(2): The Member State that has
granted subsidiary protection status to an individual bears the
burden of proof in establishing that that individual is no longer
in need of international protection.

3.2.

Exclusion from refugee status (Article 14)

3.5. Residence permits (Article 21)

3.2.1.
The Committee does not support point 1(a). An
applicant who currently benefits from protection or assistance
from organs or agencies of the United Nations, other than the
High Commissioner for Refugees, would in this instance be
under the protection of an organ or agency which was not a
signatory of the 1951 Convention and which might not be in
a position to guarantee fully the rights ensuing from the
recognition of his refugee status.

3.3.

The grounds of subsidiary protection (Article 15)

3.3.1.
The Committee stresses that other reasons which are
not specified here may also exist. It also warns against the risk
of including in the grounds for subsidiary protection other
grounds which usually come under Article 1.A.2) of the
Geneva Convention (1).

( 1) For the purposes of the present Convention, the term ‘refugee’,
shall apply to any person who: [...] (2) ‘As a result of events
occurring before 1.1.1951 and owing to well-founded fear
of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is
outside the country of his nationality and is unable, or owing to
such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the
country of his former habitual residence as a result of such events,
is unable or, owing to such fear, is unwilling to return to it.’
In the case of a person who has more than one nationality, the
term ‘the country of his nationality’ shall mean each of the
countries of which he is a national, and a person shall not be
deemed to be lacking the protection of the country of his
nationality if, without any valid reason based on well-founded
fear, he has not availed himself of the protection of one of the
countries of which he is a national.
See also the ‘Handbook on Procedures and Criteria for Determin-
ing Refugee Status under the 1951 Convention and the 1967
Protocol relating to the Status of Refugees’.

3.5.1.
Refugees granted subsidiary protection are to be
granted a residence permit valid for one year (instead of five
for refugees under the Geneva Convention). This principle is
inconsistent with an interpretation of the Geneva Convention
which allows a large number of cases to be examined
individually. Complementary protection should only be relied
on in cases where the grounds for the request for international
protection do not, after an individual assessment, fall within
the scope of the Geneva Convention. There is no reason for
this form of protection to be of shorter duration.

3.5.2. Moreover, as indicated in paragraphs 2.3.5 and 3.3.1
above, subsidiary protection must not diminish the status of
refugee, as established in the 1951 Convention.

3.6. Travel documents (Article 23)

3.6.1. With regard to the restrictions to the freedom of
movement, it should be noted that the ‘compelling reasons’
referred to apply on the same grounds and without discrimi-
nation to both third-country refugees and stateless persons as
well as nationals.

3.7. Access to employment (Article 24)

3.7.1.
As explained in the point concerning Article 21, the
fact that protection is subsidiary does not imply that it is less
extensive. Equal employment rights for refugees and Member
State nationals must also be granted to persons with subsidiary
protection as soon as they have been recognised as having this
status. The Committee supports efforts to combat illegal or
clandestine work and underlines that people granted asylum
but not the right to work are vulnerable to social exclusion,
vagrancy or social alienation.

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3.7.1.1.
In the case of women, the fact that they do not
have the right to work once protection is granted increases the
risk of them being drawn into forced prostitution rings.

3.7.1.2.
In relation to employment, as in the case of
integration facilities (see point 3.9), the Committee points out
that refugee reception and social support facilities (solidarity
funds, charitable association activities, reception in schools,
housing) are ultimately supported directly at grassroots level
by local authorities (municipalities and regions).

3.8.

Freedom of movement (Article 30)

3.8.1.
Refugees whose status is recognised by one Member
State, or refugees enjoying subsidiary protection, should also
be granted freedom of movement in the other Member States.

or who have been recognised as refugees but choose at some
point voluntarily to return to their countries have specific
needs; more attention should be given to such needs of
returning refugees when drawing up the EU’s sustainable
development and cooperation policies.

3.11.

Staff and resources (Article 34)

The Committee welcomes the fact that the staff of
3.11.1.
the ‘authorities’ and ‘other organisations’ implementing this
directive must have received the necessary basic training prior
to taking up their posts, and would prefer to add continuous
or specialist training needs at all stages of claim assessment
process. This would be particularly relevant, for example, with
regard to the reception given to women who are victims of
rape or
sexual violence, unaccompanied minors, or the
prevention of ‘recruitment’ of easy prey victims of drug or sex-
industry trafficking.

3.8.2.
The Committee points out that once international
protection has been granted and the status recognised, the
refugee or person enjoying subsidiary protection surrenders
his or her passport to the host country for the duration of the
protection and asylum. Since he is under the responsibility of
the Member State granting him protection, he should be
entitled to move freely within Member States, under the same
conditions as their nationals (1).

4.

Final provisions

4.1. Race

3.9. Access to integration facilities (Article 31)

The same comments apply as

3.9.1.
those made on
Articles 21 and 24 (residence permit and access to employ-
ment). The Committee wonders why beneficiaries of subsidiary
protection must, once this status has been granted, wait for a
year before benefiting from integration facilities geared to their
needs, in particular with regard to employment, education,
health and social well-being. Their linguistic and cultural needs
could be added to this list. (The need to find a normal, dignified
life as soon as possible.)

3.10. Voluntary return (Article 32)

Though the Committee supports access to volun-
3.10.1.
tary return programmes, it stresses the close link between the
drawing up of short-term reintegration programmes in the
countries of origin and sustainable development. Such develop-
ment is the best way of ensuring the peace, security and
stability of populations. People whose claim has been dismissed

4.1.1.
The Committee supports the principle of non-dis-
crimination in the final provisions of the draft directive and
recommends that the Commission take into account the
European Union’s position at the World Conference against
Racism, Xenophobia and Intolerance and that of
foreign
minister Louis Michel speaking for the Belgian Presidency to
the European Parliament, according to whom: ‘It has now been
proven that theories seeking to confirm the existence of
different human races are scientifically incorrect. The European
Union hoped that the language employed would reflect this
finding. It considers that the use of wording suggesting the
existence of different races should be avoided. Its aim is not to
deny the diversity of the human race but rather to appreciate
its unity, and thereby to combat contemporary forms of
racism, which regularly rely on claims of this sort. However as
a result of strong opposition from some states, it has not
been possible to make much progress in this direction. The
European Union has felt it important to express its position of
principle on this point in a final statement which will be
reflected in the Conference report’ (Translator’s note: unofficial
translation). (2).

4.1.2. Many refugees or asylum seekers have fled because
of discrimination based on nationality or ethnicity, sometimes
finding themselves hounded from state to state because of the
same discrimination that is the very reason for their request
for protection.

( 1) See the ESC Opinion on the Proposal for a Council Directive
concerning the status of third-country nationals who are long-
term residents (CES 1321/2001) Rapporteur: Mr Pariza Castan˜ os.

(2) Speech given by Louis Michel to the EP on 2nd October 2001:

record of proceedings of the Durban Conference

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4.1.3.
The Committee reiterates — as it has already stated
in its opinion on the Communication on Towards a common
asylum procedure (1) — the Council’s common position of
4 March 1996 (2), which recognises nationality in the broad
sense of the term, namely independent of citizenship but
including the sense of a family link.

The Committee urges the Commission, when pro-
4.1.4.
posing texts, to promote the positions adopted by the Euro-
pean Union within the international community.

5. Conclusions

The Committee supports the Commission’s initiative

5.1.
and welcomes in particular:

— the equality of treatment with Member State nationals
granted to refugees and beneficiaries of subsidiary protec-
tion with regard to employment, access to education,
‘social welfare’, health and psychological care, without
prejudice to more generous measures in appropriate
cases;

— the concept of subsidiary protection as a form of extended
protection for people whose grounds for requesting

( 1) See the ESC Opinion in OJ C 260, 17.9.2001 (rapporteur:

Mr Mengozzi).

( 2) OJ L 63, 13.3.1996, pp. 2-7.

Brussels, 29 May 2002.

asylum do not fall within the scope of the Geneva
Convention but who are nonetheless in need of inter-
national protection in accordance with the principle of
non-refoulement;

— broadening the scope of protection to include victims of

persecution by non-state organisations or agents.

5.2.
However, the Committee considers that some aspects
of the proposal should be revised in order to match both the
standards required in relation to the principles of international
protection and the objectives set at the Tampere Council
meeting.

5.3.
After the tragic events of 11 September an increasing
zeal for the need of security tends to undermine a climate of
tolerance, acceptance, humanitarian sensitivity, prevailing in
the behaviour of European refugee-immigration services, as
well as the spirit and the letter of European legislation. The
EESC considers that in a period of globalisation, protection of
refugees and asylum-seekers and/or international protection
are a humanitarian asset and must be based on an equal
balance between territorial security and the safety of peoples.
The Committee is convinced that in the medium to long term
a strategy for invigorating civility between European citizens
and refugees and asylum seekers is one of the most effective
investments that will enable the European Union to remain
the place of freedom, justice and prosperity for the desperates
of the world, for those who cannot find hope, justice and
freedom in their countries.

The President

of the Economic and Social Committee

Göke FRERICHS