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Statewatch analysis: no 10 Critique of the European Commission’s paper on asylum, protection and internal security
28 March 2012
Statewatch analysis: no 10
Critique of the
European Commission’s paper on asylum, protection and internal
security
The Commission paper:
- displays flagrant disregard for basic human rights obligations
- suggests solutions that are not coherent
- would apply to situations wholly unrelated to terrorism
by Steve Peers, Reader in Law, University of Essex
Summary
The Commission paper on the relationship between internal security
and international protection (COM (2001) 743, 5 Dec. 2001) is
deeply flawed. It displays flagrant disregard for basic human
rights obligations relating to torture, the death penalty and
private and family life found in the European Convention on Human
Rights, the EU Charter of Fundamental Rights and international
human rights instruments. Moreover, it suggests solutions that
are not coherent in relation to EU asylum rules or proposals,
conflict with agreed EU measures regarding terrorism and arrest
warrants, or would apply to situations wholly unrelated to terrorism.
Finally, the practical implications of certain proposals have
not been seriously considered.
The issues
1) Asylum Procedures
The Commission paper begins by arguing that all persons should
in principle have access to the asylum procedure, regardless
of allegations concerning terrorism. This is without prejudice
to the prospect that applicants for asylum may be found to be
ineligible for refugee status on the grounds listed in Article
1.F of the Geneva Convention.
The Commission’s support for admission of all applicants
into the asylum determination system is welcome, as in most cases
an alleged terrorist will dispute such accusations and it would
violate the Geneva Convention and the
European Convention on Human Rights to remove that person without
any consideration of the truth of such allegations. However,
the Commission then goes on to suggest detailed solutions for
certain issues. Here there are two serious problems with the
Commission’s analysis.
1a) Asylum Procedures and Extradition
The first problem concerns the relationship between asylum applications
and an extradition request from a state other than the country
of origin. The Commission puts forward two options here. In the
first option, an asylum application would be ‘frozen’
while a person would be extradited to another state to face certain
charges. The application could then be resumed if the person
in question was not found guilty of the allegations. Under the
second option, the asylum application would be dismissed as ‘inadmissible’
in such situations, but an applicant could then apply for asylum
in the Member State to which he or she was extradited.
It is obvious that the Commission has not thought through the
practical implications of either option. First of all, the Commission
has not suggested rules regarding the need to ensure that the
applicant is not 'refouled' (i.e., sent to an unsafe country)
following completion of the trial in the country requesting extradition
(assuming the trial country is itself safe). Failure to guarantee
this would violate the ‘non-refoulement rule’ of the
Geneva Convention on Refugees, as well as Article 3 of the European
Convention on Human Rights, which guarantees the right to be
free from torture or other inhuman or degrading treatment. Also,
the Commission has not considered that the European Convention
on Human Rights, in certain cases, prevents removal to face an
unfair trial.
Secondly, the Commission has not mentioned the practical difficulties
of resuming the process of considering the asylum application
(in the first option) or changing the Member State responsible
for considering the application (in the second option). The first
option would require a commitment from the Member State where
the asylum application is first lodged to readmit the applicant
to resume the claim. It would also potentially require rules
on transit through Member States and non-Member States alike.
Furthermore, it might entail changes to the Dublin
Convention (or the proposed Regulation which will replace it),
as otherwise the responsibility for considering the application
might result in another Member State being responsible, if the
applicant spends a long enough time away from the Member State
in which he or she applied and then does not return directly
to that Member State. But the Commission expressly states that
it does not contemplate an amendment to the Dublin rules.
As for the second option, the Commission simply appears to assume
that in all such cases the applicant would be extradited to another
Member State. But what if the applicant is extradited to a non-Member
State? Will that third state be responsible for considering the
application? If so, on what basis can it be guaranteed that this
non-Member State will consider the application? What if this
non-Member State does not apply the Geneva Convention on refugees
at all, or not in the same way, or is not a party to the ECHR?
Or alternatively, if the
intention is that the applicant return to a Member State to apply
again, how will entry in order to make such an application (or
the possibility of applying through an embassy) be guaranteed?
What about transit issues? Where an applicant in this scenario
is extradited to another Member State, the Dublin Convention
(or replacement Regulation) would likely have to be changed to
accommodate the result the Commission recommends; but again the
Commission does not suggest such amendments.
Under either scenario, the Commission does not address the prospect
that even where an applicant is acquitted of all charges (or
convicted only of offences that fall under the threshold of Article
1.F of the Geneva Convention), a state might still argue that
Article 1.F applies to that person, as Article 1.F can be applied,
in the Commission’s view, even without a criminal conviction.
There is thus a risk that Article 1.F will be applied on an automatic
basis even after an acquittal (or conviction on minor charges).
1b) Asylum Procedures
The Commission suggests that where Article 1.F of the Geneva
Convention allegedly applies, proceedings could be accelerated
and remedies to prevent expulsion could be removed. Both suggestions
raise huge risks that the rights under the Geneva Convention
and the ECHR will not properly be protected. Of course, there
will be some cases where the application of Article 1.F is obvious,
but in other cases the evidence will be unclear and contested.
It is thus essential that applicants have full procedural rights
and that the dismissal of an asylum
application at the first instance does not result in a suspension
of the right to remain in the country during an appeal. The ‘right’
to an appeal which the Commission mentions would be essentially
useless if it cannot be exercised in-country. This drastic reduction
in procedural rights would arguably contradict the right to an
effective remedy in Article 13 of the ECHR and Article 47 of
the EU Charter of Fundamental Rights.
2) Protection against Expulsion
The Commission states at p. 14 that a state requesting extradition
‘could, for instance’ agree not to impose the death
penalty. This wording suggests that it is optional for Member
States to decide whether or not to expel a person to face the
death penalty (potentially). But this interpretation ignores
the Member States’ legal obligations regarding the death
penalty following their ratification of the Sixth Protocol of
the ECHR. This is the more striking because the preamble to the
Framework Decision on the European arrest warrant, as agreed
politically by the
Council in December 2001, expressly states that no person can
be extradited to face the death penalty. Also, the Commission
does not take account of Article 19 of the EU Charter of Fundamental
Rights, which states that ‘No one may be removed, expelled
or extradited to a State where there is a serious risk that he
or she would be subjected to the death penalty, torture or other
inhuman or degrading treatment or punishment’.
As far as Article 3 of the ECHR is concerned, the Commission
recognises that protection against expulsion to face torture
or other inhuman or degrading treatment is absolute, but then
suggests that there might be future case law of the European
Court of Human Rights which ‘balances’ state security
against this absolute right. The Commission’s suggestion
here quite simply betrays a profound contempt for one of the
most fundamental human rights, as there is no indication of such
a possible change in the established case law of the European
Court of Human Rights. Again, the preamble to the Framework Decision
on the European arrest warrant, as agreed politically by the
Council in December 2001, expressly states that no person can
be extradited to face torture or other inhuman or degrading treatment;
and again, the Commission’s view conflicts with Article
19 of the EU Charter of Fundamental Rights, which states that
‘No one may be removed, expelled or extradited to a State
where there is a serious risk that he or she would be subjected
to the death penalty, torture or other inhuman or
degrading treatment or punishment’.
3) ‘Excludable’ persons
The Commission rightly points out that the situation of persons
who can legally be excluded from a ‘protection’ status
but who cannot be expelled is not defined in any international
rules or many national rules. It would therefore be useful, as
the Commission suggests, to adopt Community rules addressing
the status of such
persons, although the Commission does not give any indication
of what the content of such rules would be. However, the Commission
wrongly confuses two groups here: the persons who do not qualify
for refugee status in the first place, due to Article 1.F of
the Geneva Convention, and the persons who do qualify for that
status but could potentially still be expelled in accordance
with Articles 32 or 33 of that Convention. The latter group are
refugees and until and unless their refugee status is withdrawn
pursuant to Article 1.C of the Geneva Convention,
they do have the status of Geneva Convention refugees.
4) Eurodac
The Commission’s discussion of Eurodac in Chapter 4 of its
paper is profoundly disturbing. Eurodac provides that fingerprints
of asylum-seekers and persons irregularly crossing the border
can be taken in order for the limited purposes of comparing fingerprints
to ascertain which Member State is responsible for considering
an asylum application. The fingerprints in the system cannot
be used for general crime-fighting purposes. While of course
any purely national fingerprint database is not subject to the
limitations placed on Eurodac, the Commission fails to point
out that any further use by Member States of the fingerprints
of asylum-seekers is governed by the data protection rules of
the 1995 EC data protection directive, the 1981 data protection
Convention of the Council of Europe, and Article 8 of the ECHR.
5) Reception conditions
The Commission’s paper suggests that reception conditions
for asylum seekers could be reduced if they ‘aided and abetted’
or gave financial support to a terrorist group as defined by
the EU. This fails to consider that in most cases, such alleged
support would be in relation to a group in a third country, run
by third-country nationals and allegedly committing ‘terrorist’
acts against third-country nationals. But the framework decision
defining "terrorism" agreed by the Council in December
2001 only governs acts committed wholly or partly within the
EU, by EU nationals or residents or against EU nationals or residents
(it is not plausible that asylum-seekers are ‘residents’
under this definition, since their residence status is only provisional
and their rights are very limited: Member States cannot have
it both ways). So the Commission’s proposal on this issue
fails to take account of the jurisdictional limits of the framework
decision, and confuses the vital underlying distinction between
the unjustifiability of political violence in a democratic society
and violent acts in defence of democracy in a non-democratic
state. This distinction is expressly recognised by a Statement
exempting ‘the conduct of those who have acted in the interest
of preserving or restoring...democratic values’ from the
version of the framework decision on terrorism approved by the
Council.
6) Migration
The Commission’s proposal finally addresses the issue of
long-term residents. This issue is outside the scope of asylum
law. Moreover, the Commission’s proposals are ill-thought-out.
The proposed Directive on long-term resident third-country nationals
already provides for potential expulsion of any long-term resident
convicted of a sufficiently serious crime, so already provides
for sufficient protection in cases of alleged terrorist activity.
But the Commission nonetheless proposes to amend its proposed
Directive, in each case by making changes that would also apply
outside the context of terrorism.
For example, the Commission proposes to delete the rule that
a criminal conviction of a long-term resident third-country national
would not automatically result in expulsion. Deleting this rule
would obviously affect many persons who are not involved with
terrorism, even allegedly, but who rather are convicted of possibly
quite minor crimes. The rule in question as currently drafted
would not in any way prevent the fight against terrorism, as
it would simply require the national authorities and the courts
to consider, on a case-by-case basis, the seriousness
of any criminal conviction against the established rights of
a long-term resident before removing them. Applying this balancing
test, a terrorist conviction would certainly not stand in the
way of expulsion. Moreover, the Commission’s amendment would
conflict with the established jurisprudence of the European Court
of Human Rights on the protection for long-term residents under
Article 8 ECHR, and since it would place long-term resident third-country
nationals in a different position from EU nationals, would conflict
with the principle of treating long-term resident third-country
nationals and EU nationals the same ‘as far as possible’,
as agreed by the Tampere European Council.
This report as a pdf file:
pdf
back to previous page
filed 26.2.02.
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