Brussels, 31 May 2010

Transcription

1 Brussels, 31 May 2010 Subject: Proposal for a Directive on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (Qualification Directive) Proposal for a Directive on minimum standards on procedures in Member States for granting and withdrawing international protection (Asylum Procedures Directive) Opinion of the National Red Cross Societies of the Member States of the European Union * and the International Federation of Red Cross and Red Crescent Societies The European Union National Red Cross Societies welcome the European Commission s proposals recasting the Qualification Directive 1 and the Asylum Procedures Directive 2. Together, these two directives provide the cornerstone in building a Common European Asylum System, which is firmly based on the common and universal values on which the Union is founded. At present the European Union is still far from effectively establishing a common protection area in which persons in need of international protection are guaranteed access to fair and proper asylum procedures under equivalent conditions in all Member States. The current system has, as we have previously noted, turned European asylum into a protection lottery, leaving many vulnerable asylum seekers without access to an adequate level of protection and assistance 3. We therefore strongly support the main objectives of the Commission s proposals: to ensure higher and further harmonized protection standards and to ensure higher and more coherent standards on procedures for granting and withdrawing international protection. In the present paper we reiterate our position on the establishment of a Common European Asylum System (CEAS) and offer detailed comments on the two proposals. For additional comments, we refer to our position paper on the European Commission s Policy Plan on Asylum, which also covers other aspects of the CEAS, including reception conditions, the Dublin system and solidarity within and beyond the EU. As regards practical cooperation in the field of asylum, it underlines inter alia the need to guarantee equal access to professionally and objectively researched country of origin information and highlights the potential role of the European Asylum Support Office in helping to ensure consistent high quality decision-making in all * Including the Norwegian Red Cross and the Swiss Red Cross as members of the Red Cross/EU Office 1 Proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (Recast), COM(2009) 551 final, Commission of the European Communities, 2009 ( 2 Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (Recast), COM(2009) 554 final, Commission of the European Communities, 2009 ( 3 Position paper European Commission Green Paper on the future Common European Asylum System, Red Cross/EU Office, 2007 ( Rue Belliard 65. Box 7, B-1040 Brussels. Tel: +32 (0) Fax: +32 (0) Mail: infoboard@redcross-eu.net

2 Member States. The paper also proposes the establishment of a Common Asylum Court of Appeal as part of the European Court of Justice in order to ensure uniform interpretation and application of EU asylum law. 4 As National Red Cross Societies we are part of the International Red Cross and Red Crescent Movement the world's largest humanitarian network. We act as auxiliaries to the public authorities in the humanitarian field and are committed to address the needs and vulnerabilities of asylum seekers and other migrants in order better to protect, support and assist them. We promote respect for their rights and needs, and deliver needs-based services. We therefore urge all EU Member States to ensure that National Societies have unconditional access to vulnerable migrants regardless of their status for the purposes of providing humanitarian assistance. 5 A Common European Asylum System As set out in the Stockholm Programme, adopted by the European Council on 11 December 2009, the establishment of a Common European Asylum System by 2012 remains a key policy objective for the EU. The Stockholm Programme reaffirms the European Council s commitment to establish a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection, with the objective of ensuring that similar cases should be treated alike and result in the same outcome. 6 As further recognized by the European Council in the European Pact on Immigration and Asylum, the time has come to take new initiatives to complete the CEAS and thus to offer a higher degree of protection, as proposed by the Commission in its Policy Plan on Asylum. 7 As underlined by the Future Group, in a common space based on the respect of fundamental rights, it is not admissible that the national application of one of them, the right to asylum 8, varies so much between the Member States. Moreover, as the Future Group has also pointed out, and as acknowledged in the European Pact on Immigration and Asylum, the EU has to ensure that those with a genuine right to asylum are able to claim it. 9 The European Union National Red Cross Societies remain insistent that European governments fully respect the rights of all asylum seekers and other migrants, including in particular respect for and due application of the principle of non-refoulement and the provisions of the 1951 Refugee Convention and its 1967 Protocol, and implementation by governments of all their international and national legal and human rights obligations. 10 In this context, we acknowledge the need to establish a Common European Asylum System that upholds humane reception standards and safeguards the right to seek and to enjoy asylum through fair and proper asylum procedures in all Member States. While underlining the imperative of guaranteeing effective access to asylum in the European Union, we support the objectives and the strategy proposed by the European Commission in the Policy Plan on Asylum. 4 Position paper European Commission Policy Plan on Asylum, Red Cross/EU Office, 2008 ( 5 The Istanbul Commitments, adopted by the 7 th European Regional Conference of the International Federation of Red Cross and Red Crescent Societies, 2007 ( 6 The Stockholm Programme An open and secure Europe serving and protecting the citizens, 17024/09, Council of the 7 European Pact on Immigration and Asylum, 13440/08, Council of the European Union, 2008 ( 8 According to the EU Charter of Fundamental Rights, The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community (Article 18 Right to asylum). 9 Freedom, Security, Privacy - European Home Affairs in an open world, Report of the Informal High Level Advisory Group on the Future of European Home Affairs Policy ( The Future Group ), 11657/08, Council of the European Union, 2008 ( 10 The Istanbul Commitments, adopted by the 7 th European Regional Conference of the International Federation of Red Cross and Red Crescent Societies, 2007 ( 2

3 A Common European Asylum System must ensure that international protection in the EU is accessible and, as stated by the Commission, that asylum seekers are treated in the same way, with the same high-standard guarantees and procedures, wherever in the EU they make their asylum claim. In addition to creating a common area of protection, this requires measures facilitating the arrival of asylum seekers on the territory of the Members States with a view to providing legal and safe access to protection in the European Union. 11 The Qualification Directive We endorse the proposed amendments to the Qualification Directive that by clarifying and strengthening the current provisions aim at ensuring higher and further harmonized protection standards as regards the grounds of international protection in the European Union. Ensuring full and inclusive application of the 1951 Refugee Convention and its 1967 Protocol remains central to the development of a Common European Asylum System, as reconfirmed in the Stockholm Programme 12. Whereas subsidiary protection should be complementary and additional to refugee protection, it must nevertheless offer an adequate level of protection to persons in need of international protection who do not qualify as refugees in accordance with the directive. We regret, therefore, that the Commission has not found it necessary to propose amendments that would clarify Article 15(c), which defines serious harm as serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict. While, as noted by the European Commission, the requirement of the existence of a serious and individual threat was interpreted by the European Court of Justice in its judgment of 17 February 2009, the requirement of the existence of an international or internal armed conflict remains problematic as the failure of national courts to interpret it correctly has resulted in a protection gap. In order to guarantee that no one in need of protection from serious harm due to indiscriminate violence is denied international protection, the wording in situations of international or internal armed conflict should be deleted or considered as an exemplification rather than as a requirement. Alternatively, if the armed conflict requirement is to be maintained, the directive needs to be amended with a view to ensure that it is implemented and applied in conformity with relevant international law, including case-law 13. In this context, it is also useful recall the Commission s intention to launch a study on the possible alignment of national types of protection status not yet covered by the Qualification Directive 14. A comprehensive study should also examine emerging and hitherto neglected situations which could give rise to international protection needs, with a view to ensure that EU law in the future also provides adequate protection for persons displaced by inter alia environmental degradation. As regards the content of international protection, the amendments proposed by the European Commission aim at approximating the rights granted to the two categories of beneficiaries of 11 Policy Plan on Asylum - An integrated approach to protection across the EU, COM(2008) 360 final, Commission of the European Communities, 2008 ( 12 The Stockholm Programme An open and secure Europe serving and protecting the citizens, 17024/09, Council of the 13 In applying the Qualification Directive, the authorities in some Member States have referred to the scope of application of the 1977 Additional Protocol II to the 1949 Geneva Conventions in order to define the term "internal armed conflict". While there is no single agreed definition of non-international armed conflict in treaty law, the main sources of interpretation are Common Article 3 of the 1949 Geneva Conventions and relevant international jurisprudence, such as the case-law of the International Criminal Tribunal for the former Yugoslavia (ICTY). See How is the Term "Armed Conflict" Defined in International Humanitarian Law?, Opinion Paper, ICRC, 2008 ( 14 Policy Plan on Asylum - An integrated approach to protection across the EU, COM(2008) 360 final, Commission of the European Communities, 2008 ( 3

4 protection (i.e. refugees and beneficiaries of subsidiary protection), while the Stockholm Programme calls for a uniform status for those granted international protection. We support the introduction of a single uniform status for all persons eligible for international protection in the EU, building as far as possible on the rules and standards pertaining to refugee status in accordance with 1951 Refugee Convention and its 1967 Protocol, and ensuring timely family reunification and equal access to e.g. health and social care, education and training, social assistance and accommodation, and to the labour market. We regret that the definition of family members fails to take into account family ties formed during flight or in the asylum country. While the Qualification Directive only covers family members who are present in the same Member State as the beneficiary of international protection, it is our position that the right to family reunification in the EU should be strengthened and enshrined in the uniform protection status, putting an end to diverging practices and obliging Member States to authorise and facilitate the entry and residence of family members. 15 Promoting good health should be a matter of priority after protection status has been granted as well as during the asylum procedure. Beneficiaries of international protection who have been subjected to severe health threats before and during their flight need care that is appropriate to their needs. Specialist resources are required for the treatment of severely traumatised persons. We further support appropriate measures that, in line with the Commission s suggestions, prevent discrimination and facilitate access to education, vocational training, employment and accommodation as well as to language training and other targeted integration activities, and which take due account of the situation and needs of beneficiaries of international protection, including particularly vulnerable persons 16. The Asylum Procedures Directive We endorse the proposed amendments to Asylum Procedures Directive that aim at ensuring higher and more coherent standards on procedures for granting and withdrawing international protection in the European Union. We welcome the establishment of a single asylum procedure and the clarification that the directive also applies to Dublin cases. A common asylum procedure must ensure that asylum seekers are guaranteed adequate examination of their protection needs. To this end, all public officials that come into contact with persons seeking international protection should receive proper training. As set out in the Stockholm Programme, it is crucial that individuals, regardless of the Member State in which their application for asylum is lodged, are offered [ ] the same level as regards procedural arrangements and status determination 17. Asylum seekers are typically in a vulnerable situation. Common provisions on access to the asylum procedure, which ensure equal access to procedures throughout the Union, must take this into account, not creating unnecessary legal or practical obstacles, such as undue time limits for application or allowing designation of locations where an application can be lodged in a way that reduces availability. Admissibility or border procedures that impede access must be reconsidered, allowing for effective access and proper procedural guarantees. All asylum seekers should have the right to an efficient remedy. Critically, asylum seekers must be informed about their rights and 15 The right to family reunification is recognised by EU law (Article 1 Family Reunification Directive) and must be applied in conformity with inter alia the fundamental right to respect for family life (Article 7 EU Charter of Fundamental Rights); see Position paper "Freedom, Security and Justice: What will be the future?" Consultation on priorities of the European Union for the next five years ( ), Red Cross/EU Office, 2008 ( 16 E.g. traumatised persons, victims of torture and ill treatment, victims of human trafficking, unaccompanied or separated minors, people with disabilities, pregnant women, elderly persons, etc. 17 The Stockholm Programme An open and secure Europe serving and protecting the citizens, 17024/09, Council of the 4

5 the requirements of the asylum procedure. They should also have the right to remain in the asylum country (i.e. appeals must have suspensive effect) throughout the whole procedure. Existing notions and procedural devices which undermine the individual examination of asylum applications should be abolished. All claims are unique and should accordingly be processed individually and considered on their individual merits without resort to generalised assessments based on e.g. nationality. Any measures to address possible abuse of the asylum procedure must be designed as to not infringe on the right to seek and enjoy asylum. A single, common procedure must be efficient, avoiding negative consequences of long and unwarranted waiting periods on asylum seekers health and well-being. To this end, there should be clear and uniform time limits for the authorities within which they have to decide on an asylum application. At the same time, time limits must not in any way set aside other legal guarantees. There must always be a balance between efficiency and the legal rights of the individual. The rules regarding detention are unclear. They are found in several legal acts the Asylum Procedures Directive, the Reception Directive and the Return Directive and implemented depending on in which stage/phase in the asylum procedure the applicant is. To be predictable and easy to grasp, we think that the rules on detention of asylum seekers should be stated in only one directive, tentatively the Asylum Procedures Directive, and be applicable in all different situations where detention may be considered. 18 Particularly vulnerable applicants with special needs must be given legal guarantees that safeguards adequate examination of their international protection needs. For example, special guarantees should include the right to choose an interpreter of the same sex and that adequate time is given for trauma victims to present their application. Asylum claims from all members of a family should be examined, determined and recorded in the decision. Children have a right to be heard and express their view, and should be given an opportunity for a personal interview where age and maturity permits, by professional staff trained in child protection and child-specific issues. An asylum interview with the parents or another person considered legal custodian of the child must include an investigation of the child s situation and any independent asylum claim. Finally, we would like to underline that a personal and individual interview must be mandatory for all types of procedures. Cost-free assistance of a legal representative with necessary expertise should be granted to all asylum seekers, during all stages of the asylum procedure until a final decision on international protection has been taken or until the asylum seeker has left the territory of the asylum country. The legal representative should be present at the personal interview, and be given adequate time, information and resources, such as access to the same country of origin information as the authorities. Asylum seekers should be entitled to the services of a qualified interpreter, and all communication should be in a language that he/she understands and speaks. They should also have the right to contact organisations that assist asylum seekers. This position paper has been prepared by the Red Cross/EU Office, which represents the National Red Cross Societies of the EU Member States and the International Federation of Red Cross and Red Crescent Societies to the EU institutions. 18 In our view, detention of asylum seekers should be avoided and considered only as a measure of last resort; particularly vulnerable persons should never be detained. For detailed comments on the use of detention, see Position paper European Commission Policy Plan on Asylum, Red Cross/EU Office, 2008 ( 5