EU law on asylum procedures: An assault on human rights? (1)
01 November 2003
EU law on asylum procedures: An assault on human rights? Word file
EU law on asylum procedures: An assault on human rights? pdf file
The sources for this analysis are mainly documents which are not publicly available - access to their full-text is given below.
EU law on asylum procedures: An assault on human rights?
The Council is nearing the deadline of December 2003 set by EU leaders for agreement on a proposed Directive on asylum procedures. This Directive, along with a parallel proposal on the definition of 'refugee' and subsidiary protection status, is at the heart of refugee law. However, there are disturbing developments in the final months of negotiations on the Directive. It appears that the Council is likely to agree a Directive which in many respects will fall below the minimum standards set by human rights law, with Member States not merely permitted and encouraged to lower their existing standards but in one area even required to lower those standards.
At the moment, asylum procedures are only governed by EU 'soft law', comprising the three 'London Resolutions' of EU Ministers adopted in 1992 (on 'safe third countries', 'safe countries of origin' and 'manifestly unfounded' cases) and a Council Resolution setting out general rules on asylum procedures adopted in 1995. The Commission proposed a Directive on this subject in September 2000. A year later, the proposal fell victim to the Belgian Council Presidency's cancellation of negotiations over most EC immigration and asylum proposals, and the Council instead agreed 'conclusions' on this issue in December 2001. These conclusions took no account of the proposed amendments of the European Parliament, which would have considerably improved the Commission's proposal. Furthermore, the EU summit in Laeken, in December 2001, called for the Commission to present a new version of the proposal.
The Commission presented its revised proposal, considerably lowering the standards in its first proposal, in June 2002, although the Council did not reopen negotiations on it until January 2003. In June 2003, the JHA Council agreed on part of the Directive, concerning the standards applicable when an asylum-seeker first comes into contact with the authorities. These rules cover issues such as detention of asylum-seekers, the right to legal aid and access to a lawyer, and the right to a personal interview with a trained official. The rules agreed by the Council in these areas fell well below the standards proposed by the Commission.
Subsequently, the Council has been negotiating the other provisions of the Directive, concerning 'inadmissible' asylum applications, the scope of special procedures applicable to admissible applications, the rules applicable to withdrawal of refugee status, and the right of asylum-seekers to have access to a court or tribunal, including the question of whether a legal challenge has 'suspensive effect', meaning that the asylum-seeker is entitled to stay in the country pending the decision.
If an asylum application is inadmissible, the national authorities do not have to consider its merits at all. So even though the situation of the asylum-seeker in the country of origin may be appalling, with the result that his or her case for refugee status may be well-founded, the authorities will not even examine the application. 'Inadmissible' cases concern those cases where it is believed that the asylum-seeker should have applied somewhere else, or where the asylum-seeker already has protection somewhere else.
The proposed Directive applies this principle to cases where a person already has protection elsewhere or is subject to the EU's 'D