Brussels, 04/11/2003 (Agence Europe) - Thursday's Justice and Home Affairs Council will continue its tricky discussions on the harmonisation of asylum application processing, on the basis of a text which has been described by Amnesty International as "unacceptable". Ministers will firstly discuss the issue of specific procedures at the borders and those of safe third countries, the transit countries asylum seekers could be sent back to for their application to be examined. They may also discuss other sensitive issues, in particular the list of safe countries of origin and the suspensive effect of appeals procedures. On all of these issues, there are many proposals for amendments and derogations.
Amnesty International says that the text, as modified by the Council and its working groups, goes against international standards set by the United Nations Convention on Refugees and the jurisprudence of the European Court of Human Rights. Amnesty feels that "no agreement at all would be better than this agreement as it stands, which has so many provisions with no added value, and even provisions which go beyond supranational jurisprudence", said Daphné Bouteillet-Paquet, of Amnesty's European office. Amnesty International criticises the "deals and bargainings in all senses", and feels that "the initial objective of this Directive, the protection of people, has been replaced by a migration control agenda". The organisation has criticised the fact that at all stages, "we see the rights of asylum seekers diminished: access to the territory, to the procedure, to status..." The United Nations High Commissioner for Refugees (HCR) is concerned about several points and has asked for guarantees, but has adopted a more balanced position.
The European Council has called upon the JHA Council to approve this proposed Directive on procedures for the processing of asylum requests by the end of the year, as well as the proposal on the definition and status of refugees, still suspended by Germany's veto, and which could be raised by the JHA Council on 27 and 28 November. Member States which have already adopted the two other texts of the European "asylum package", which will determine which State is responsible for processing an asylum application and sets a very narrow common denominator for conditions to receive asylum seekers (EUROPE of 20 and 24 December 2002).
Safe third countries: Austria particularly wants this to be introduced, and a European list, like the one planned for the safe countries of origin, to be adopted. The idea is that an asylum seeker could be sent back to the safe third country he or she passed through in order to reach the European Union, for this country to process the asylum application and receive him or her as a refugee, if the criteria are met. Only the Netherlands clearly support this common list at the time being. The others would prefer the adoption of common criteria, on the basis of which each State could decide which countries it considers safe. But there is no agreement at the moment, according to a Community source. An article and an annex would define the conditions for application, which would be that the person could apply for asylum in the country they are sent back to, and that this country must respect the standards set by the Geneva Convention and the European Convention on Human Rights, whether or not it has ratified them. The third country should also individually accept the arrival of the person concerned on their territory. France and Sweden are said to be insisting on guarantees, and Germany has requested that an individual examination does not need be carried out, according to a diplomatic source.
Amnesty International rejects the very principle of safe third countries, and the HCR is worried about its impact (EUROPE of 2 October, p.11). Both organisations fear that the buck will be passed from third country to third country, ending up in countries with no respect for human rights at all. Another point troubles both organisations: the fact that one of the conditions in the draft text is that the third countries should agree to "admit or re-admit" the asylum seeker means that this could refer to countries he or she did not even transit, they say.
Processing of requests on the border: Germany submitted a proposal on special status, and an even less binding one, for safe neighbour countries of the Member States, and which would mean that access to the territory could be denied without even examining the request, if the border authorities are satisfied that the person has not been persecuted. Only Austria and the United Kingdom seem to support the German proposal. The Commission and least four Member States are concerned at the lack of guarantees for asylum seekers' rights. The Member States are also divided on the issue of whether only to keep existing exceptional national procedures, or if they should also accept new provisions. Amnesty has called for this article to be cancelled, "given the risk of violation of the Geneva Convention and of the principle of non-refoulement". Amnesty is insisting that border guards should have no powers of preselection, as asylum requests should be process by people "Someone who arrives at a border must have the right to the same procedure as a person who made his request for asylum in the country, if not this will award those illegally entering a given territory, declared Diederik Kramers from the European bureau of the HCR. Both Amnesty and the HCR cite the bad example of Germany which, according to these organisation can send all asylum seekers to Poland or the Czech Republic, who went through these countries, without having to proceed to any examination of their request.
Safe countries of origin: During the last JHA Council, EU15 Interior Ministers agreed on the principle of a common list of safe countries of origin, the requests being made by long term residents or nationals of these countries being considered unfounded out of hand and hence subject to expedited examination procedure. After a Commission meeting last week with experts of Member States, a first list was drawn up but without any certainty that it would be adopted, Community sources say. It is said to contain about twelve countries including Bulgaria, Romania, the United States, Canada and Norway, some sources say. At any rate, whether there is a list or not, Member States could each designate for its territory the countries of origin that they consider safe, respecting common criteria. During the last Council the Member States, except the United Kingdom, also agreed on the criteria that a country must fulfil in order to be considered safe, depending on the application of laws in a democratic system, respect of the international rules and conventions, and the existence of an effective appeal system against human rights violations (EUROPE of 3d October, p.11).
The HCR has no problem with the list as long as it remains a tool for facilitating the procedure. Refusal must not be pronounced just by looking at a passport. Amnesty International is against the use of a list at national or European level because this is discrimination against the Geneva Convention, which bans discrimination on the basis of nationality. The defence of freedom organisation considers that the protection clauses are so weak and the presumption so strong that, in practice, it would be an "automatic bar". Amnesty is concerned about the draft list stressing above all that the death penalty is applied in the United States.
Appeal against a decision to refuse to grant refugee status: There are discussions both on the appeal effect (does it suspend the expulsion decision?) and the question of knowing whether it may be examined by an administrative body rather than by a Court or tribunal. Amnesty International insists on the fact that appeal must be imperatively examined by a court or tribunal, affirming that it is a question of respect for Community legislation and the jurisprudence of the European Court of Human Rights (Conka ruling). The HCR is concerned about the way discussions are turning regarding the suspensive effect of appeal, together with "many exceptions".