COMMISSION PAPER ON COMMON STANDARDS ON ASYLUM PROCEDURES
On 3 March, the EU Commission adopted a working document on common standards on asylum procedures, presented by JHA Commissioner Anita Gradin. The paper is an attempt by the Commission to launch a broad discussion on the introduction of a legally binding Community law instrument on asylum procedures. Prevailing EU arrangements in the field are based on instruments of intergovernmental decision-making, many of which do not bind the Member States.
"Soft law" instruments, such as "Resolutions", "Conclusions", "Joint Positions", "Joint Actions" and "Recommendations", have had a considerable impact on the steady mutual "approximation" of asylum procedures of the EU Member States. Thus, concepts with dramatic effects on the rights of refugees, such as "manifestly unfounded applications", "safe countries of origin", and "safe third countries" intended to allow the summary rejection of asylum applications and the swift removal of the asylum seekers concerned from EU territory were introduced in December 1992, at a meeting of EU Ministers responsible for asylum (see CL No.11, p.2). In 1995, the Council adopted a Resolution on minimum guarantees on asylum procedures and a Joint Position on a common definition of the term "refugee" (see CL No.39, p.3). The latter amounted to a de facto restriction of asylum applicants' eligibility for refugee status under the 1951 Geneva Convention.
While all Member States appeared eager to refer to the above concepts in justifying ever more restrictive national laws and practices, the vague and non-binding character of EU arrangements resulted in a very different implementation of concepts from one Member State to another. Thus, for example, each Member State decided individually which third countries it considered "safe". This could result in a very different outcome of an asylum procedure, depending on which Member State was responsible for its examination.
This is why the Commission identified the need for a legally binding Community law instrument on asylum procedures as early as 1994. The Amsterdam Treaty opens the way for the introduction, upon initiative of the Commission, of such an instrument. The purpose of the Commission's "working document" of 3 March, is to initiate a broad policy discussion with the Council, the European Parliament, the UNHCR and NGOs on the scope and the content of a future Community instrument on asylum procedures.
Framework law or prescriptive law?
The paper distinguishes two possible approaches:
- to establish certain procedural safeguards and guarantees which all Member States would have to abide by in order to make asylum procedures "fair and efficient". According to this concept, Member States would be allowed to determine for themselves the procedural tools and administrative practice ensuring compliance with the Community instrument.
- to adopt a more prescriptive approach, which would require all Member States to apply exactly the same rules of procedure. This would imply a genuine legal harmonisation of law rather than mutual approximation.
The Commission already appears to have opted for a proposal according to 1).
Commission suggest substantial changes
The assessment made in the Commission paper of some prevailing concepts pertaining to asylum procedures is noticeable. Thus, the paper notes that minimum procedural guarantees for asylum seekers are not taken into account in the implementing rules of the Dublin Convention, and that, therefore, rules with respect to this should be part either of a legally binding instrument on asylum procedures or a Community regulation that would replace the Dublin Convention.
The paper addresses the risk of arbitrary decisions and legal insecurity ensuing from all too vague definitions of terms such as "safe third country" and "objective grounds" allowing summary rejection of an application as "manifestly unfounded". As regards the concept of "third safe countries" the paper notes that "Member States' practice in the field varies considerably" and demands that the application of the safe third country principle must be subjected to strict security mechanisms so that the non-refoulement principle established by Article 33 of the 1951 Geneva Convention is really always applied. The paper insists that asylum applicants should not be sent back to a third country, if it has not been previously established that he or she will actually be granted access to an asylum procedure.
While the paper is in favour of maintaining the concept of "manifestly unfounded" applications, it questions whether this concept should apply in cases where an applicant is considered as lacking credibility or where an internal flight is being considered a reasonable alternative.
As regards the concept of "safe country of origin", the paper does not exclude the option of giving it up as a whole. The paper raises the question, as to whether it can be fair to use a mechanism leading to the denial of an individual examination of an applicant's claim.
Finally, the paper advocates a review of certain points in relation to the interpretation of the term "refugee" within the meaning of the 1951 Geneva Convention.
Amnesty International has welcomed the Commission paper and called on the JHA Council to take into due account its considerations concerning the improvement of the fairness of asylum procedures. However, the Commission paper essentially outlines a variety of possible approaches to the question of asylum procedures. There are reasons to believe that the Council will be attracted by the restrictive options outlined in the paper rather than those highlighted in this article.
Sources: Common Standards on Asylum Procedures, Commission Working Document, 3.3.99, SEK (1999) 271 final; Commission press release, 3.3.99; Agence Europe, 10.6.99.