Brussels, 30/04/2004 (Agence Europe) - The UN High Commissioner for Refugees (HCR) has severely criticised the agreement reached in Council on Monday on procedures for processing asylum requests, fearing that its implementation could "endanger refugees" and "violate international law" (yesterday's EUROPE, p.7). The HCR expressed particular concern about the "permission to designate without sufficient guarantees safe third countries towards which the asylum seekers could return, and rules allowing for asylum seekers to be expelled before the result of an appeal, thus in practice depriving them of the right to an effective appeal in the event of error". The HCR urges Member States, when they introduce this directive into their national legislation, to "heed this warning or run the risk of finding themselves before the Court of Justice in Luxembourg". The HCR also fears that the text creates a "bad precedent for the new Member States".
The principles are there, but with many derogations, and their application is largely left to the discretion of each Member State. The United Kingdom and Germany have fought to the bitter end, with undeniable success, to attenuate the extent of the text and to keep their national legislation. With France, they are the countries which receive the most asylum requests (EUROPE of 2 March). The Commission, like most Member States, recognises that the common denominator decided on Thursday is extremely low, but some hope the transition to qualified majority and to co-decision with Parliament, once the text is definitively approved this autumn, will make it possible to go further.
The directive is the last chapter in the establishment of minimum norms for a European asylum policy - so minimal in fact that the HCR considers Member States have not kept their commitment taken five years ago, that of "full compliance with the right of asylum" and respect of the 1951 Geneva Convention on the rights of refugees. The Dublin II regulation defines which Member State is responsible for examining a request for asylum. Another text defines the minimum conditions for hosting asylum seekers, pending examination of the request (EUROPE of 20 December 2002). A directive defines the criteria on the basis of which the right to refugee status or to alternative protection will be decided, and also determines the rights, once this status is granted (EUROPE of 31 March, p.11).
NGOs denounce "a catalogue of the worst practices". The HCR criticises the fact that "the highly controversial practices of one or two Member States" - generally but not only Germany and the United Kingdom - may be extended to the whole of the 25-member Europe.
The procedure, deposit and request for appeal: The directive outlines the procedure. Applicants have the right to remain on the territory during first instance examination of the request. The State cannot refuse to look at a request simply because it has not been submitted soon enough. Applicants must be informed in a language that they understand and have an interpreter available. They have the right to an individual interview except if they come from a safe country of origin or third country (see below), or if they have taken a long time in presenting their request. They must have access to a lawyer, but the State may limit free legal assistance to very specific cases, in appeal, and if the appeal has a chance of success. The HCR must be able to have access to applicants and to their dossiers and to give an opinion. The States must designate a representative for unaccompanied minors under 16 years of age. The HCR considers that this right must be guaranteed until the age of 18. Any rejection of a request must be duly motivated. A State is not obliged to inform applicants in writing of the possibility of making an appeal if the latter can obtain the information on the Internet. The directive fixes the principle of the right to effective appeal against a negative decision, but the States are free to decide whether appeal will have suspensive effect or not. The HCR and NGOs consider that expulsion denies the right to effective appeal and recall that 30-60% of requests are only accepted in second instance.
Special procedures and possibilities for refusing to examine a request: If applicants have been definitively refused a first request, a State is not forced to examine their request unless it can be proven that they have new elements to support their case. Neither is the State compelled to examine a dossier if the person benefits from refugee status in another country. Furthermore, the States may maintain the existing national procedures when the request is made at the border, and in this case ban access to their territory.
Above all, the directive endorses the concepts of safe countries of origin and third countries. According to the first concept, the Member States will be able to carry out expedited examination of requests submitted by nationals of countries considered safe, or stateless persons living in these countries. The requests made by such persons will be considered unfounded. Requests should nonetheless be examined but with lighter procedure to be determined by the State.
The person will above all not have the right to an interview with the authorities responsible for giving their opinion on the request. The directive provides for a minimum common list to be approved by the Council, while allowing each Member State to add the countries that it considers safe.
The directive lays down the criteria for designating a country as safe: a democratic country, no practice of torture or degrading treatment, a level of protection of persons against persecution. For the joint list, alongside Romania and Bulgaria should come Senegal, Ghana, Benin, Cape Verde, Chile, Mali, Botswana, Mauritius, Costa Rica and Uruguay. The Council will now check whether these countries respect the criteria in the directive. The United Kingdom succeeded in ensuring that states can keep their national lists of countries of origin which are safe under less strict criteria, and can designate part of a territory as safe or a country as safe for a precise group of persons.
The "safe third country", to which applicants can be sent for their application to be examined was originally a country through which they had transited, but the directive leaves it to each member state to define the "link" which exists between a person and that country. It does, however, lay down an obligation for the member state to examine an application if a third country refuses to receive the deported applicant. A paragraph envisages an individual examination of the safety of the country for the applicant. Once the country has been judged safe, a state may decide to examine the application in an accelerated way, or not to examine it at all and declare it inadmissible. For third countries which are "particularly safe", a state can send the applicant back without examining their application at all or checking whether the country is safe for the applicant. A country can be judged as such if it has ratified and respects the Geneva Convention and the European Convention on Human Rights, and if it has a system in place for asylum-seekers. As long as the Council has not adopted this list, the member states which already have this system can continue to apply it.