18 November 2002
1. Statewatch welcomes the chance to comment on this revised version of the proposed directive on asylum procedures. In general, the revision is a highly disappointing attempt to restrict the procedural rights of asylum-seekers which arguably would authorise Member States to breach the European Convention on Human Rights (ECHR). More detailed comments follow below.
2. The definition of 'detention' in Art. 2 (j) (ex-Art.2(l)) is now less precise. It would have been preferable to keep the prior wording, so it is clear that keeping applicants in airport transit zones can constitute detention (see the ECtHR judgment in Amuur v France).
3. It is unfortunate that the directive still does not apply to applications for subsidiary protection, given that the Commission has now made a proposal to define the scope of that principle at EC level (COM (2001) 510, Sept. 2001), the Seville European Council has requested agreement on that proposal before this proposal, and work appears well advanced on that proposal. It would be logical at least to include within the procedures directive all persons falling within the scope of the 'qualifications directive' (although this will likely fall short of all those considered by some Member States to have a subsidiary protection status as defined in national law). This will enhance the coherence of the asylum system at EC level.
4. It would then be necessary to define the relationship between refugee status and subsdiary protection status. The best approach would be a one-stop shop for applications, with Geneva Convention refugee status considered first. It should always be possible to appeal in the event that subsidiary protection status is recognised but Convention refugee status is not, for even if the EU Member States decide to give the recipients of the two forms of status exactly the same legal position (which the Commission's proposal would not do), the two groups will be in a different position visiting non-EU states because it will usually be far easier to travel on a Geneva Convention travel document.
5. Since former Article 3(2) has been dropped, it is not expressly clear whether or not the Directive applies now when an asylum application is considered during a border procedure. The prior wording should be restored.
6. Article 4 (the minimum standards clause) is new. This is very welcome. However, there is still no standstill clause, preventing Member States from lowering their standards to the level of the text. Such a clause would be essential, as there is otherwise a great risk that Member States will compete to lower standards to the lowest possible level in a means to repel asylum-seekers. There is already clear evidence of this happening.
7. The older version of Article 5 (ex-4) was preferable, as it contained better provisions on the lack of 'prior formality' needed to make a claim and a requirement to make it possible to apply as soon as possible.
8. The older version of Article 6 (ex-5) was preferable, as it permitted an asylum-seeker to stay at the border as well as on the territory. In addition Art. 6(2) now provides for an exception to this rule.
9. Article 7 (ex-6) contains some improvements, particularly concerning furnishing of information to judges and the obligations to examine an application impartially, et al.
10. The prior version of Article 8 (ex-7(d)) was preferable, as it required Member States to furnish more precise information concerning challenges to negative decisions.
11. The older version of Article 9(1)(a), (b) and (d), found in ex-Articles 7(b), (c) and (d), was preferable, as it made it clear that information had to be given prior to the procedure, required information in the applicant's language, gave broader rights to an interpreter and required decisions in writing.
12. The older version of Article 10 (ex-8) was preferable, as it contained fewer exceptions for the personal interview. While there are safeguards for these exceptions in Article 10(3), these safeguards are neutered by Article 10(4).
13. Article 11 should retain the prior wording that the interview must be in the applicant's language or a language they understand. There will not be much of an 'interview' if it is conducted only in a language that the applicant is 'supposed' to understand.
14. Article 12 is wider than the prior text (see ex-Art. 8(6)), in that there is no distinction based on type of procedure, but the substantive rights have been narrowed. Applicants should always have the right to see and comment on the transcript, to ensure that any apparent contradictions in the applicant's statements throughout the procedure are real contradictions, not just different wording based on different translations.
15. Article 13 should retain the reference to contacting 'organisations' concerned with legal assistance as well found in the former Article 9(1). Legal aid should apply at all stages and the wording of the second part of Article 13(2)(a) leaves too much discretion to Member States.
16. The legal adviser's right to see the file in Article 14(1), part one, is a welcome addition. Article 14(2) (ex-Art. 9(3)) is welcome in that it adds the right to be informed about the interview and to attend the interview in all types of procedure. However, there should also be a right to attend other interviews, and a right to represent during all interviews.
17. The extent of detention permitted in Articles 17 and 18 is highly questionable and leaves almost unlimited discretion to detain persons, despite the wording of Article 17(1). There should be a short and exhaustive list of specific grounds (public safety, real risk of absconding) in which detention may be authorised and effective judicial control over that detention. The compatibility of these provisions with Article 5 ECHR may be questioned.
18. This Chapter now deals with 'accelerated procedures', comprising all admissibility claims, manifestly unfounded claims, unfounded claims, repeat applications, or applications for entry Previously the concept only covered 'manifestly unfounded' applications (ex-Art. 27).
19. If there must be a concept of 'safe third country', the Commission's proposal has at least the merit of improving on procedures in some Member States. The new version in Articles 27 and 28 (ex-Arts. 21 and 22) is better in that there must now be specific grounds for designating third countries (Art. 27(3), point 3) and the safe third countries must be informed regarding the non-examination of the claim (Art. 28(2)). However, the idea that a country could now be considered 'safe' even if a person has never been admitted there (Art. 28(1)(b)) is clearly absurd and should be dropped.
20. The concept of 'safe country of origin' is highly questionable and should be dropped from this proposal.
21. At any rate, the idea of automatic rejection of applications from any particular 'safe country of origin' or 'safe third country' without any consideration of the claim at all, as put forth by some Member States (though not in the Commission's proposal), would clearly violate the Geneva Counvention on refugees and the European Convention on Human Rights. It should be expressly ruled out in any circumstances.
22. The scope of a 'manifestly unfounded' application is now limited to cases which raise no Geneva Convention argument at all, where 'safe country of origin' applies or where a person is 'prima facie' excluded from status (Art. 29). The first two were in ex-Art. 28(1)(d) and (e), with the difference that a reference to the ECHR has been dropped, but the latter was previously an example of a case where the 'manifestly unfounded' principle could not apply (ex-Art. 28(2)(b)). Apart from the first category of cases, which are accepted by the UNHCR in an Executive Committee Conclusion, these categories are not plausible or acceptable candidates for 'manifestly unfounded' status.
23. The list of merely 'unfounded' claims (Art. 32, ex-28), has widened the 'fraudulent' ground to include 'misleading' applications re identity or nationality (32(1)(a)); has added other forms of fraudulent or misleading applications (32(1)(c)); the 'imminent deportation' clause is reworded (32(1)(e)); there is a ground of failure to comply with obligations (32(1)(f)); the applicant is an illegal entrant who did not contact the authorities with good reason (32(1)(g), turning around Art. 31 Geneva Convention); or on security grounds (32(1)(h), based on the Geneva Convention). The list is still not exhaustive, and both the exclusions in the previous version (internal flight and Art. 1.F) have been removed. There is, however, a new clause to the effect that the authorities must show no reason to expect persecution. This is a major expansion of the grounds previously listed and with no categories of case excluded from this concept any more, there is a huge risk that applications of a large number of asylum-seekers will not be considered effectively.
24. Article 35 is a new provision for special rules in border cases. It is questionable whether such rules are necessary and whether in practice they may result in violations of the ECHR and Geneva Convention on refugees.
25. The right to suspensive effect of an appeal now only applies in principle to regular procedure cases, not to all cases (Art. 39(1), ex-Art. 32(1)). There is now the possibility of exception even for the regular procedure where a Member State already provides for it (see Art. 39(2)). This exception is subject to the right to apply for leave to remain, (Art. 39(3) and (4); see ex-Art. 33(3)); even here there is a national security and public policy exception (this only applied to suspensive effect itself before: see ex-Art. 33(3)(c)). All of these new exclusions from suspensive effect raise obvious ECHR issues, in light of the judgments in Conka v Belgium and Jabari v Turkey on an effective remedy for asylum-seekers. Certainly it is hard to imagine that abolition of suspensive effect in the regular procedure as well as all accelerated procedures is compatible with Article 13 ECHR.
26. As for 'accelerated procedures', MS must lay down the circumstances of non-suspensive effects of appeals (Art. 40(1)); the idea of this concept is no longer presented as an option, and is no longer limited to safe third country, manifestly unfounded and national security cases (ex-Art. 33(2)). There is the prospect of a court ruling on its own motion or on request that the applicant has leave to remain (Art. 40(2)), but unlike in the prior version, where there was no exception to suspensive effect pending a 'leave to remain' decision except for 'safe third country' cases (ex-Art. 33(3)), there are now possible exceptions in all 'admissibility' cases, where a prior request has been rejected, in the case of repeat applications, or on national security/public order grounds. There is no condition of restricting any of these exceptions to cases where a Member States already provides for them. Again there are obvious ECHR problems. In fact it is questionable whether its abolition during the first appeal against a negative decision during any procedure is compatible with the ECHR.
27. The detailed rules for the different forms of appeal and further appeal (ex-Arts. 34-40) have been replaced by a simplistic content-free Article requiring Member States to lay down rules on judicial matters (Art. 41). The prior wording would have been preferable, in ensuring more comparability in procedures between Member States and a reasonable degree of effective remedies in such cases, but at the very least the current wording should not be weakened further, to permit Member State to abolish judicial review altogether. As the Commission points out, this would violate the EC principle of effective remedies before a court.
28. The revised proposal sets standards far too low than is acceptable for a document designed to ensure effective consideration of asylum claims. It is vital to consider significant improvements, particular as regards the scope of permitted accelerated procedures and the massive reduction (indeed, potential abolition) of the suspensive effect of appeals. Moreover, any further changes to weaken the text, particularly as regards automatic rejection of any category of applications without any consideration, must be rejected.
Statewatch, 12 November 2002 (prepared by Steve Peers)
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