Opinion of the European Economic and Social Committee on the Green Paper on the future Common European Asylum System COM(2007) 301 final
Date: 2008-03-12
Institutions: European Economic and Social Committee
Subjects: EU Member State, admission of aliens, approximation of laws, refugee, right of asylum, social policy

9.8.2008

EN

Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the Green Paper on the future
Common European Asylum System

COM(2007) 301 final

(2008/C 204/17)

On 6 June 2007 the European Commission decided to consult
Committee, under Article 262 of the Treaty establishing the European Community, on the

the European Economic and Social

Green Paper on the future Common European Asylum System

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 21 February 2008. The rapporteur was
Ms Le Nouail Marlière.

At its 443rd plenary session, held on 12 and 13 March 2008 (meeting of 12 March 2008), the European
Economic and Social Committee adopted the following opinion by 118 votes to one, with nine abstentions.

1. Introduction to the consultation: Green Paper on the

future Common European Asylum System

acquis and laid the foundations for the CEAS. The Commission
is monitoring the timely transposition and implementation of
the legal instruments already adopted.

1.1
The future Common European Asylum System (CEAS)
has its legal basis in Title IV — ‘Visas, asylum, immigration and
other policies related to free movement of persons’ of the Treaty
of Amsterdam (1999); the decisions of the Tampere Summit in
Finland in 1999; and more recently, the Hague Summit. We
should also recall
its ‘functional’ basis, namely the Dublin I
Regulation in 1997 and Dublin II in 2003, which came into
force in 2006; the first Schengen agreement of 1985, recently
extended to include a number of new Member States in 2007.
We should not lose sight of the fact that the primary objective
was the uniform implementation and transposition throughout
the European Union of the 1951 Geneva Convention relating to
the Status of Refugees, ratified by most Member States, in order
to ensure that persons in need of international protection effec-
tively receive such protection. The underpinning idea is to make
the European Union a single protection area for refugees, based
on the full and inclusive application of the Geneva Convention
and on the common humanitarian values shared by all Member
States. The Hague Programme Action Plan foresees the adoption
of the proposal for CEAS by end 2010.

1.5
Although the process of evaluating the first stage instru-
ments is still underway, given the need to come forward with
the proposals for the second phase in time for their adoption in
2010, the Commission considers it essential to embark as of
now on an in-depth reflection and debate on the future architec-
ture of the CEAS.

1.6
The Commission's objectives include achieving a higher
degree of solidarity between EU Member States, boosting the
capacity of all stakeholders, improving the overall quality of the
eliminating existing deficiencies and harmonising
process,
current practices through the implementation of a set of accom-
panying measures relating to practical cooperation between
Member States.

1.7
The Commission has set out its consultation in four
chapters and 35 questions: legislative instruments, implementa-
tion, solidarity and burden sharing, external dimension.

1.2 With a view to starting on the second stage, and prior to
launching its action plan due to be published in July 2008, the
consultation
Commission has
process through this Green Paper in order to identify what
options are possible under the current EU legal framework.

comprehensive

launched a

2. Summary of conclusions and recommendations

The Committee, bearing in mind its

2.1
(numerous)
previously adopted opinions on the subject, the recommenda-
tions of NGOs providing support
and the
UNHCR's (1) recommendations to the Portuguese and Slovenian
presidencies of the European Union,

to refugees

1.3
The Tampere Programme, subsequently confirmed by the
Hague Programme, consists in the establishment of a common
procedure, a uniform status, a homogeneous framework, and a
high level of harmonised protection in all Member States guar-
anteeing the consistent implementation of the Geneva Conven-
tion.

2.2
Recalling that asylum issues are already subject to quali-
fied majority decisions in the Council whereas immigration is
still subject to unanimity and should be made subject to quali-
fied majority decisions under the Lisbon treaty, recommends
that when implementing a common procedure the Commission
and the Council ensure that the national exemption clauses (‘opt
outs’) frequently used by some Member States are excluded or
avoided.

1.4
During the first stage between 1999 and 2006, the adop-
tion of the four main legislative instruments created the current

(1) United Nations High Commissioner for Refugees.

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The Committee supports the adoption of a fair asylum
2.3
system,
i.e. an asylum system with a human face that takes
account of asylum seekers' need for protection as a genuine
objective to be included among the objectives for building a
Europe that is also social. The Committee recalls that these
social objectives are not in conflict with and do not exclude the
economic and security interests of host populations or Member
States.

2.4
It calls for conditions to be created that promote the
respect of international conventions, European directives in line
with international law and humanitarian law and the Conven-
tion for the Protection of Human Rights and Fundamental Free-
doms of the Council of Europe; a better distribution of the
responsibilities incumbent on Member States; the speedy reset-
tlement and integration of people granted protection as refugees
or subsidiary protection; a sincere cooperation and co-develop-
ment policy that improves effective democracy in certain third
countries and that contributes to international solidarity in
response to asylum needs.

To this end, it recommends measures that are inseparable

2.5
from and complementary with each other.

That

those in need of

international protection are
2.5.1
always able to enter the territory of the European Union, irre-
spective of the level of strengthened controls in order to ensure
that
to submit an asylum application is
respected, whatever the form, and that access to fair and effi-
cient procedures is guaranteed.

the right at

least

2.5.2
That requests for recognition of refugee status should
always be examined and the decision delivered and substantiated
in writing by the decision-making authority before subsidiary
protection is considered, including for applications submitted at
the border.

2.5.3
country to which they submit their claim.

That asylum seekers should be free to choose the

together
That unaccompanied minors and women,
2.5.4
with other vulnerable persons, are granted specific protec-
tion (2): physically, mentally or socially disadvantaged persons
who may be unable to meet their basic needs and may therefore
require specific assistance (pregnant women, children,
the
elderly, infirm, disabled, etc.).

2.5.5
That persecution specific to certain women must be
taken into consideration as a motive for protection on an indivi-
dual basis and independently of any persons accompanying or
accompanied by them (minors, or husbands, relatives, and
others) (3).

(2) As defined by the UNHCR (Master Glossary of Terms, June 2006).
(3) Rape, conflict-related rape, physical, mental or social abuse inflicted
due to unwillingness to submit to an established male order. See point
2.5.1 of the EESC opinion on Qualification, rapporteur: Ms Le Nouail
Marlière, (OJ C221, 17.9.2002): ‘Although not explicitly covered by the
1951 Geneva Convention, the specific 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 legiti-
mate grounds for granting asylum in Member States’.

That all asylum seekers, are entitled to an effective and
2.5.6
case-by-case examination of
their applications, access to an
interpreter, free legal assistance and sufficient time to present
their case.

2.5.7
That the fundamental principles applicable to asylum
procedures should apply to all asylum claims, including mani-
festly unfounded claims.

That all appeals against decisions denying refugee
2.5.8
status or subsidiary protections should always have the effect of
suspending the execution of a repatriation order, especially for
people who cannot be expelled without risk to their life,
freedom or safety should they be returned to another country.

That integration and resettlement under normal and
2.5.9
decent
to
living conditions should be guaranteed in order
ensure self-sufficiency, the conditions for which should be met
as soon as possible after arrival, and with the consent of the
party concerned,
in terms of health care, orientation and
language training; contact with organisations providing support
for
training,
including the evaluation and recognition of qualifications, access
to legal employment, etc.

refugees and the with the local population;

Recommends

2.6
that NGOs and associations providing
legal, material and humanitarian assistance to refugees always
have access to holding and detention centres, whether open or
closed. With respect to resettling recognised refugees within a
burden-sharing framework for Member States, the Committee
recalls its Opinion CESE 1643/2004 of 15 December 2004, and
in particular point 2.4, which states that ‘the conditions under
which NGOs and refugee associations can work in reception
centres should be improved through partnership agreements
with the authorities in the host countries, or at least by clari-
fying their rights’.

2.6.1
That reception standards that respect human dignity
should apply without distinction to all asylum seekers entitled
to refugee status or subsidiary protection.

2.6.2
That alternative solutions (open reception centres) be
preferred to the systematic detention of asylum seekers and
holding centres that are totally closed and deny access to NGOs,
and sometimes even the Red Cross.

the use of

Advises against

safe third country lists
2.7
(compliance with procedures allowing for
the case-by-case
examination to which asylum seekers are entitled under the
Geneva Convention) and recommends reviewing the ‘safe third
that
country’ status of
deprive asylum seekers of an examination of their specific case,
and any ensuing rights (4).

third countries of origin or

transit

(4) EESC opinion of 15 December 2004 on the Communication from the
Commission to the Council and the European Parliament on A more
efficient Common European Asylum System: The single procedure as the next
step, rapporteur: Ms Le Nouail Marlière (OJ C 157 of 28.6.2005), point
2.7.

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2.8
Recommends, nevertheless, that if ‘safe country’ lists are
to be maintained, then they should be common to all Member
States and approved by national parliaments and the European
Parliament, they should take account of information provided
by duly consulted NGOs, and that under no circumstance
should they continue to be used in the meantime.

Recommends

2.9
that coast guards, public officials and
agents of public or private services having contact with asylum
seekers during the initial and subsequent stages (police, customs,
should be provided with
health,
training in asylum rights and humanitarian law.

employment)

education,

2.10
Reiterates and stands by its recommendation to take
proper account of the obligations of local and regional authori-
ties with respect to providing frontline assistance and long-term
integration for asylum seekers granted refugee status or interna-
tional protection, and therefore to give them a fair share of
involvement
in drafting a common asylum policy, and to
continue and clarify the use and allocation of funds under the
European Refugee Fund (ERF), as specified below.

Approves the creation of a European support office for
2.11
Member States provided that
it complements the work of
regional and local branches of the UNHCR and that it complies
with the objective of improving the quality and consistency of
decisions with a view to ensuring that those in need of interna-
tional protection receive it irrespective of where they submit
their claim in the European Union, and the objective of continu-
ally assessing European laws to ensure that they comply fully
with international
refugee law and humanitarian law. This
support office could hold training courses for border guards on
the distinctions between refugees and other migrants in coop-
eration with the UNHCR, which currently provides and partici-
pates in these courses, mainly but not solely on the EU's eastern
borders since the expansion of the Schengen area (Hungary,
Poland, Slovakia, Slovenia).

2.12
Recommends that measures taken to control immigra-
tion do not result in the violation of fundamental rights, namely
the right to seek and obtain protection from persecution.

2.13
Calls for emphasis to be placed on the absolute obliga-
tion of ships' captains in cases of interception and rescue at sea
to come to the assistance of persons in distress; and for steps to
be taken to resolve the lack of recognition of their responsibil-
ities relating to the disembarkation of persons rescued at sea
and to provide for the immediate examination of claims and
grant international protection if necessary.

2.14 With regard to the specific debate surrounding the
establishment of a common European asylum procedure, the
Committee recalls the recommendations and warnings set out
in its opinion, CESE 1644/2004 of 15 December 2004,

concerning any lowering of protection standards liable to occur
during the 2004-2008 period between the consultation on the
single procedure and the Green Paper on the common asylum
system.

2.15
procedure (administrative or
governed by the logic of protection and not prosecution.

Reminds Member States that, irrespective of the type of
judicial), every stage must be

Recommends that

the Commission and the Council
2.16
ensure clarity and transparency in the allocation and use of the
European Refugee Fund for 2008-2013, under
the general
programme ‘Solidarity and Management of Migration Flows’ as
recommended in its opinion (5), in which it ‘calls for practical
provisions to be included in the decisions setting up these
various funds to ensure that non-state operators are associated
at as early a stage as possible in the annual and multi-annual
framework of guidelines drawn up by the Member States and by
the Commission itself’.

Recommends that the pro rata financial

2.17
incentives in
proportion to the considerable efforts of certain Member States
— such as Sweden for instance — or the limited capacity
(geographical size and pro rata to population) — such as Malta
and Cyprus — do not lead other Member States to shirk certain
of their responsibilities and obligations in terms of access to
their territory and the processing of asylum claims, or resettle-
ment of refugee groups, whether internal (solidarity and burden
sharing) or external (contribution to extraregional efforts).

3. General comments

3.1
The Committee welcomes the public consultation on the
future CEAS via the Green Paper. It is pleased that the Commis-
sion has taken this opportunity to draw attention to deficiencies
in European legal provisions and the differences between Euro-
pean laws and the practices of Member States.

The Committee urges the Commission and the Council
3.2
to ensure that discussions on the management of borders do
not undermine the fundamental right to seek asylum or interna-
tional protection,
including land, air and maritime border
measures, and especially in the case of interception and rescue
at sea, both within and outside the territorial waters of Member
States.

3.3 With regard to combating terrorism in particular, as well
as crime and human trafficking,
the Committee urges the
Commission and the Council to ensure that insecurity around
the world does not have a negative impact on public percep-
tions of refugees and asylum seekers, and does not jeopardise
the integrity and nature of asylum.

(5) EESC opinion of 14 February 2006, rapporteur: Ms Le Nouail Marlière
(OJ C 88 of 11.4.2006), point 2.4 and the Conclusions, fourth indent.

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4. Specific comments

4.1 Legislative

instruments;

processing

of

asylum applications;

national exemption clauses

According to the Commission, basing its opinion on many
NGO and UNHCR reports, the ‘Asylum Procedures Directive’
provides for procedural standards based on common minimum
criteria, leaving the Member States scope for national adapta-
tions and exemption clauses. For this reason, persons seeking
protection in the EU do not benefit from identical guarantees,
which vary according to the country where they seek asylum;
and sometimes, even according to the place in the country
where they submit their asylum application. This flexibility has
also led to a gradual decrease in respect for asylum seekers'
legislative
rights, as can be seen from certain recent national
reforms.

The Committee supports the objective of setting up a common
European asylum system with the fundamental aim of ensuring
that every asylum seeker has access to fair and efficient proce-
dures. For this reason, the implementation of a common
procedure hardly seems compatible with the national
exemption clauses
applied by Member States. The
Committee will be vigilant regarding the common nature of the
procedures put forward in the Commission's action plan, as well
as to ensure that the definition of procedural rules and common
criteria is not harmonised according to the lowest common
denominator for refugee protection.

4.2 Safe countries of origin

The Committee is concerned about obstacles to some asylum
seekers' access to fair procedures, in violation of the principle of
non-discrimination as
in the Geneva Convention
(Article 3).

set out

Thus people from countries considered as ‘safe’ or ‘safe third
party countries’, whose claims may be deemed ‘unfounded’
‘accelerated’ or ‘priority’ procedures have no
under fast track,
safeguards for their right of review and appeal. The fact that
Member States have been unable to agree on a common list
creates de facto inequalities, especially with regard to the appli-
cation of the Dublin II regulation: the ‘Member State respon-
sible’ may therefore declare an asylum claim to be inadmissible
under its national list of safe countries, whereas this country
may not feature on the list of the country returning the asylum
seeker.

safe

concept of

believes, moreover, that an ‘application for asylum cannot be
dismissed solely by invoking the
third
country’ (7), but must be supported by a specific examination, in
application of the Geneva Convention. Indeed, the obligation to
examine applications for protection and asylum on a case-by-
case basis excludes the concept that a country may be consid-
ered safe for each and every individual, and that a person
cannot be subject to persecution due to his/her specific status
(belonging to a social group, persecution by state- or non-state
agents or for other reasons).

Furthermore, it would stress that the provisions set out make it
impossible to guarantee that the country to which the asylum
seeker is being returned can offer him effective and lasting
protection.

4.3 Review and appeal (suspending execution of decisions)

In application of the principles of effectiveness and equity, deci-
sions rendered in this context should not be exempt
from
review by an impartial and independent authority or court.
Noting that some Member States apply this right restrictively or
artificially in many situations, the Committee stresses the fact
that such appeals/reviews should always have the effect of
suspending execution of the decision and calls on the Commis-
sion and Council to monitor the situation.

4.4 Country of origin information

The EESC considers that the examination of applications for
asylum must be accompanied by reliable data provided on the
real risks presented in the countries of origin. In its opinion of
26 April 2001,
‘information
regarding the asylum applicant's country of origin and the
transit countries he has crossed [should] also be able to be
provided by organisations which are recognised as representing
civil society and which are active in the Member State exam-
ining the asylum application’ (8).

the Committee

stated that

In view of setting up a common system for all Member States,
the Committee believes that the quality and homogeneity of
first instance decisions will depend largely on the quality and
country of origin information
homogeneity of
consulted by the Member States' authorities or judicial bodies.

available

The Committee recommends that Member States rapidly draw
up a single list.

4.5 Asylum at the border

Recalling that ‘free and unrestricted access to their territory and
asylum procedures constitutes a fundamental guarantee that the
Member States must
the Committee

strive to provide’ (6),

The Committee notes that Member States are called on to
improve access to procedures but is concerned by the inade-
quacy of information to applicants regarding their rights and
the guarantees to which they are entitled.

(6) EESC opinion of 26.4.2001 on the Proposal for a Council Directive on
minimum standards on procedures in Member States for granting and with-
drawing refugee status, rapporteur Mr Melícias (OJ C 192 of 10.7.2001),
point 3.2.2.

(7) Melicías, point 3.2.12.3.
(8) EESC opinion of 26.4.2001 on the Proposal for a Council Directive on
minimum standards on procedures in Member States for granting and with-
drawing refugee status, rapporteur Mr Melícias (OJ C 192 of 10.7.2001),
point 2.3.

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Contrary to what the press would have us believe, there is a
steady fall in asylum applications made in the EU (9). This leads
the Committee to reiterate that all asylum seekers, irrespective
of their situation or location, are entitled to an effective
examination of
they
should have access to an interpreter, free legal assistance
and sufficient
recalls its
previous proposal that asylum seekers should also be entitled ‘to
contact recognised NGOs which defend and promote the right
of asylum’ (10).

their applications. This means that

time to present

their case.

It

In the same spirit, the Committee reiterates previously expressed
reservations regarding the excessive application by Member
States of the ‘manifestly unfounded’ concept to asylum claims. It
notes an excessive increase in the application of this concept,
which results from the unduly vague wording of Article 23(4)
of the Asylum Procedure Directive, and considers it necessary to
reframe this concept. In agreement with the UNHCR on this
point, the Committee reiterates its hope that ‘the principles
which are essential to a fair asylum procedure (…) apply to
all asylum applications, including those which are mani-
festly unfounded’ (11).

As a consequence, the Committee would like to express its
interest in the Commission's proposal to strengthen ‘the legal
safeguards accompanying the crucial
initial stage of border
procedures and in particular
the registration and screening
process’.

4.6 Single procedure

The Commission believes that ‘[s]ignificant progress (…) may
furthermore be achieved by including as a mandatory element
in the CEAS a single procedure for assessing applications for
refugee status and for subsidiary protection’ (12). It would appear
that where the single procedure has been implemented, it has
indeed significantly reduced waiting times for decisions and,
consequently, uncertainty for the asylum seeker.

This procedure means that the asylum seeker has to deal with a
‘one-stop shop’ and that
the decision-making authority first
reaches a decision on recognition of refugee status under the
Geneva Convention and then, and only as a complementary
In order to fulfil this
measure, on subsidiary protection.
such a procedure must apply everywhere,
objective,
including
the
to asylum applications
border (13).

submitted at

(9) In 2006, 192 300 asylum applications were made in EU-27, i.e. 50 %
less than in 2001 and 70 % less than in 1992 (EU-15) — Eurostat,
Statistics in Focus, Issue No. 110/2007.

(10) Melicías, point 3.2.4.4.
(11) Melicías, point 3.2.15.2. UNHCR press conference, and UNHCR's
Recommendations for Portugal's European Union Presidency, of
15 June and 11 December 2007.

(12) Green Paper, p. 4.
(13) Asylum in the European Union, A study of the implementation of

the Qualification Directive UNHCR, November 2007.

The Committee nevertheless stresses that, as stated in its
opinion of 29 May 2002,
‘subsidiary protection cannot be a
means of weakening the protection conferred by refugee
status’ (14). The EESC also notes, as does the UNHCR (15), that
Member States make considerable use of subsidiary protection
when this has little to do with developments in the country of
origin, and do not invariably substantiate this in the decision, as
asylum seekers are entitled to expect.

4.7 Reception conditions for asylum seekers; standards

The Committee notes that reception conditions for asylum
seekers vary considerably from one Member State to another.
The EESC notes that some of them would prefer harmonisation
to result in more restrictive laws, such as ‘placing geographical
constraints on applications and residence’ (16), in the belief that
this makes some countries less attractive than others.

The Committee is aware that asymmetrical national laws result
in secondary movements; it cannot however conclude from this
fact that there is a need to lower the standard of rights for
asylum seekers. To eliminate disparities, it is not necessary to
demand a higher level of protection than necessary if these stan-
dards are common to all Member States and uniformly applied.

4.8 Access to training and the labour market

Certain Member States put forward two reasons against giving
asylum seekers access to the labour market: they want room for
manoeuvre in order to respond to the employment situation in
their countries; and the fact that since asylum claim rejection
rates are expected to remain high and procedures more expedi-
tious, access to the labour market would only be temporary.

The Committee believes that despite the objective of expediting
asylum procedures, their number and the nature of many cases
presented by claimants could cause substantial delays in the
processing of claims in some countries. The Committee notes
that, as a result, although the Reception Directive sets out that
‘Member States shall make provisions on material reception

(14) EESC opinion of 29.5.2002 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 interna-
tional protection, rapporteur Ms Le Nouail-Marlière (OJ C 221 of
17.9.2002), point 2.3.5.

(15) Same study: The Committee also refers to the proposed amendments
to the Qualifications Directive (Articles 8.3; 8.1; Recital 26 of Arti-
cle.15c; Articles 12 and 14 (compliance with the 1951 Geneva
Convention); 17 and 19; and the following recommendations to the
European Commission: requesting interpretations and decisions from
the European Court of Justice; quality assurance and control of deci-
sions throughout the European Union; Training; Adoptions of guide-
lines for EU Member States: application of UNHCR guidelines; Preli-
minary decisions of national courts to the European Court of Justice;
written submission or decisions; Quality control of decisions at
national level; Analysis of the potential of agents involved in protec-
tion; on-site protection; access and eligibility; serious risks; reasons for
exclusion, UNHCR November 2007.

(16) France: Rapport d'information déposé par la délégation de l'Assemblée natio-

nale pour l'UE, presented by Mr Lequiller. No 105, 25 July 2007.

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conditions to ensure a standard of living adequate for the health
of applicants and capable of ensuring their subsistence.’ (Article
13),
the integration of refugees in the host country
depends on their self-sufficiency and that the latter will be
all the more effective if conditions for it are met as soon as
possible after their arrival.

In any event, a claimant placed in such a situation should not
be treated like ‘a criminal’ and should have the same access to
free, impartial and qualified legal aid as any other asylum seeker.
NGOs should be in a position to intervene in order to provide
advice and assistance to asylum seekers. Vulnerable persons (21),
including minors, and especially unaccompanied minors, must
receive special protection.

In its opinion of 28 November 2001, the Committee stated
that the ‘possibility of access to the labour market is
clearly of material and moral benefit to both asylum seeker
and host country’ (17); the EESC reiterates this statement
and stresses that asylum seekers must have access to
training, language courses and health care in particular.

The fact that some of them will not be allowed to remain in the
country if their claims are rejected is not a valid argument
against measures for increasing the self-sufficiency of asylum
seekers as these are ‘the best foundation for a successful integra-
tion process and, where appropriate, a fair system for returning
asylum seekers to their countries of origin’ (18). By contrast,
there is every indication that excluding them from the labour
market encourages undeclared work.

The Committee shares the Commission's view that reception
standards that respect human dignity could apply without
distinction to all asylum seekers, irrespective of whether
they are entitled to refugee status or subsidiary protection.

4.9 Detention

The Committee has expressed its concern that some Member
States place asylum seekers in ‘holding centres’, which are not
so much reception centres as detention centres.

Echoing the Council of Europe's recommendations, the EESC
has already stated that asylum seekers should only be
detained in exceptional circumstances and only for the
strictly necessary period (19). Alternative solutions should
be preferred (20).

(17) EESC opinion of 28.11.2001 on the Proposal for a Council Directive
laying down minimum standards on the reception of applicants for asylum in
Member States, rapporteurs: Mr Mengozzi and Mr Pariza Castaños (OJ
C 48 of 21.2.2002), point 4.3.

(18) Idem, point 3.1.
(19) EESC opinions of 26.4.2001 on the Proposal for a Council Directive
on minimum standards on procedures in Member States for granting and
withdrawing refugee status, rapporteur Mr Melícias (OJ C 192 of
10.7.2001), point 3.2.11.

(20) Report of an international fact-finding mission: Locking up foreigners,
deterring refugees: controlling migratory flows in Malta, International
Federation for Human Rights, Catherine Teule, point 4-1.1.
See also modernisation of monitored but open reception centres
during the accession of Romania to the EU, observed during a mission
carried out during the preparation of
the EESC opinions of
15.12.2004 on the Communication from the Commission to the
Council and the European Parliament on the managed entry in the EU of
persons in need of international protection and the enhancement of the protec-
tion capacity of the regions of origin — Improving access to durable solutions
and on the Communication from the Commission to the Council and
the European Parliament on A more efficient Common European Asylum
System: The single procedure as the next step, rapporteur: Ms Le Nouail
Marlière (OJ C 157 of 28.6.2005).

Persecution specific to certain women must be taken into
consideration as grounds for protection on an individual basis
and independently of any persons accompanying or accompa-
nied by them (minors, or husbands, relatives, and others).

The Committee further believes that ‘holding centres’ should be
subject to regular monitoring by the European Committee for
the Prevention of Torture (CPT).

4.10 Granting protection

Persons who are not
cannot be expelled

entitled to protection but

The Commission intends to harmonise the status of persons
who, for specific reasons, cannot be removed from the country
even though their asylum claim has been rejected. This consists
in applying the principles set out in international instruments
on the rights of refugees and human rights, backed systemati-
cally by the case-law of the European Court of Human Rights.

The practices of Member States vary in this regard, and the
Committee considers it necessary for the grounds for this
status to be defined uniformly throughout the EU.
It is
particularly unacceptable that
in some countries people are
deemed to be ‘without status’, i.e. they have no residence permit
but cannot be expelled, and therefore find themselves in a
precarious legal, social and economic situation, which is incom-
patible with their human dignity. Thus they become subject to
policies for
the removal of persons in irregular situations.
Without seeking to underplay the complexity of the issue, the
Committee believes that such circumstances should result in
the issuance of temporary residence permits entitling the
holder to work.

4.11 Solidarity and burden sharing

Responsibility shar ing — the Dublin system

In an opinion dated 12 July 2001 on a common asylum proce-
dure and a uniform status (22),
the Committee delivered its
opinion on the application of the Dublin Convention. It noted

(21) As defined by the UNHCR (Master Glossary of Terms, June 2006): physi-
cally, mentally or socially disadvantaged persons who may be unable
to meet their basic needs and may therefore require specific assistance.
(pregnant women, children, the elderly, infirm, disabled, etc.).

(22) EESC opinion of 12.7.2001 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, rapporteurs: Mr Mengozzi and Mr Pariza
Castaños (OJ C 260 of 17.9.2001).

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that the mechanism created more problems than it solved and
its cost outweighed its results, without preventing asylum
seekers from disappearing before they can be returned to the
country of first entry.

Returning to these points, the Committee believes that the rele-
vance of the Dublin system (Dublin and EURODAC Regulations)
was that it raised the question of asylum procedures at EU level.
However, the EESC also notes that the system, whose primary
objective was to ‘quickly establish which Member State is
responsible for the examination of an asylum application’, did
to ‘prevent
not achieve its ancillary objective, which was
secondary movements between Member States’ (23). Further-
more, it has created additional burdens, which are sometimes
very onerous for certain Member States, and in particular, for
those at the EU's external border.

Moreover, according to an evaluation carried out by the
Commission (24), some Member States transfer more or less the
same number of asylum seekers between each other, so much
so that it would be conceivable ‘to allow Member States to
conclude bilateral arrangements concerning’ annulment ‘of the
exchange of equal numbers of asylum seekers in well-defined
circumstances’ (25). Registering the
asylum
seekers with EURODAC should in itself be enough to further
reduce asylum shopping and multiple applications.

fingerprints of

The Committee notes that the human cost of applying the
Dublin system outweighs its technical objectives. It believes
that adopting common standards by minimising the differences
in the way Member States process applications should reduce
the importance of this criterion (vis-à-vis other criteria) in the
minds of asylum seekers when they decide to apply for asylum
in one country rather than another. On the other hand, cultural
and social considerations will continue to play an undeniable
role in a refugee's integration in the host country.

As a result, the Committee recommends, as it has already done
in previous opinions (26), that asylum seekers should be free
to choose in which country to submit their asylum applica-
tions and that, for this reason, Member States should apply
forthwith the humanitarian clause set out in Article 15(1)
of the Regulation. Insofar as recognised refugee status confers
the freedom to travel to countries other than the State having
recognised such status, this would amount to no more than
anticipating the implementation of this right.

In any event,
the Regulation
the Committee believes that
should not be applied to unaccompanied minors unless this
is the best interests of the child.

(23) Green Paper, point 12.
(24) Report from the Commission to the European Parliament and the
Council on the evaluation of the Dublin system — COM(2007) 299
final — 6 June 2007.
(25) COM(2007) 299, page 8.
(26) EESC opinion of 12.7.2001 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, rapporteurs: Mr Mengozzi and Mr Pariza
Castaños (OJ C 260 of 17.9.2001) and EESC opinion of 29.5.2002 on
the Proposal for a Council Directive on minimum standards for the quali-
fication and status of third country nationals and stateless persons as refugees
or as persons who otherwise need international protection, rapporteur: Ms Le
Nouail Marlière (OJ C 221 of 17.9.2002).

4.12 Financial solidarity

Reforming the Dublin system along these lines should signifi-
cantly reduce the burden of Member States that are currently
the first destinations of asylum seekers. It nevertheless remains
that there are marked differences in the number of applications
registered in individual Member States. An efficient burden-
sharing system therefore seems necessary to help those States
where the highest number of applications is registered.

So-called ‘internal’ resettlement (within the European Union)
could also be a partial solution but it cannot become a rule or a
single solution especially as resettlement should only take
place with the explicit and informed consent of the refugee
concerned and subject to guarantees that the conditions
for resettlement offer the refugee a high level of integra-
tion in the new host country.

4.13 External dimension of asylum

Suppor ting third countr ies to strengthen protection
— Regional protection programmes

Based on experience gained through the regional protection
programmes designed to provide protection for refugees in their
own regions of origin or in transit countries, the Commission
intends to consolidate them and put them on a permanent
footing. This policy in line with the broad outlines of the Hague
Programme.

The Committee supports all initiatives liable to improve recep-
tion conditions for asylum seekers in third countries. However,
it queries the final objective underlying the establishment of
reception centres in certain countries, such as the new indepen-
dent States (Ukraine, Moldova, Belarus), which seem far from
able to guarantee reception conditions for asylum seekers. The
EESC therefore emphasises that these programmes would appear
to be intended not so much to improve protection for refugees
as to reduce their chances of presenting themselves at EU
borders.

The Parliamentary Assembly of the Council of Europe (27) states
that if such centres are to be established,
‘they should be
created first within the European Union before extending
the experiment outside the frontiers of
the European
Union or outside of Europe’. The Committee emphasises that
countries that have not ratified the 1951 Convention Relating
to the Status of Refugees (Geneva, 1951) should be excluded
from these programmes Nevertheless,
the Committee is in
favour of the European Union showing solidarity with certain
third countries coping with mass or minor influxes.

(27) Council of Europe — Parliamentary Assembly: Assessment of transit
and processing centres as a response to mixed flows of migrants and
asylum seeker's — Doc. 11304, 15 June 2007.

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4.14 Mixed flows at the external borders

4.16 Monitoring instruments

The Committee recalls that in its opinion on Frontex,
it had
stressed that efficiency in border control should not come into
conflict with asylum rights.
‘The Agency's tasks must also
include co-ordinating rescue services — particularly sea rescue
— to warn and help people who are in danger owing to the
immigration’ (28) and
high-risk practices employed in illegal
called for coast guards to be trained in humanitarian law.

With regard to maritime interception, the Committee notes that
no procedures for examining applications to enter the territory,
a fortiori asylum claims, exist. The EESC calls for steps to be
taken to ensure that such procedures are implemented, namely
so that asylum applications can be registered as close as possible
to the point of interception.

4.15 The role of the EU as a global player in refugee issues

The Committee believes that in framing a common asylum
policy, the EU should also organise the future system in such a
way that it also serves as an inspiration for other parts of the
world by playing an exemplary role in the system of interna-
tional protection for refugees, by ensuring that European laws
are in full compliance with international refugee law and huma-
nitarian law, and by assuming its own responsibilities.

Brussels, 12 March 2008.

The Committee notes that the Commission has asked it to
deliver an opinion on the future framework for a common
European system at a time when the instruments and initiatives
of the first phase have not been evaluated, and the directives
have yet to be transposed into all national legislations. In order
to respect the 2010 deadline, it advocates identifying adaptation
mechanisms for the purposes of future evaluations and recom-
mends that the implementation of new instruments and/or the
review of existing instruments should be accompanied by a
monitoring system to analyse the effects of a common asylum
system and the situation of refugees. This task could be dele-
gated to the support office envisaged in the Green Paper, and
the UNHCR, NGOs active in this field and the Fundamental
Rights Agency of the European Union could be associated with
the office. This work could also culminate in an annual report
to be submitted to the EU institutions.

The Committee calls on the Commission to subsequently deliver
an annual report on the implementation of the common system
to the consultative committees (the EESC and the CoR) and the
European Parliament.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(28) EESC opinion of 29.1.2004 on the Proposal for a Council Regulation
establishing a European Agency for the Management of Operational Co-
operation at the External Borders, rapporteur: Mr. Pariza Castaños (OJ C
108 of 30.4.2004), point 3.2.