19.1.2011

EN

Official Journal of the European Union

C 18/85

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Opinion of the European Economic and Social Committee on the ‘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 — 2009/0165 (COD)

2011/C 18/15

Rapporteur: Antonello PEZZINI

On 26 November 2009, the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the

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 — 2009/0165(COD).

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 23 March 2010.

At its 462nd plenary session, held on 28 and 29 April 2010 (meeting of 28 April 2010), the European Economic and Social Committee adopted the following opinion by 153 votes with two abstentions.

1.   Conclusions and recommendations

1.1   The EESC welcomes and endorses the Commission's work on bringing the Asylum Procedures Directive into line with the suggestions made in the Green Paper (1) and the Policy Plan (2).

1.2   The adoption of the Lisbon Treaty, taking in the Charter of Fundamental Rights, has increased the EU's responsibilities and powers in the area of asylum and immigration considerably.

1.3   The EESC is persuaded that the Commission has done an admirable job of harmonising the previous directives on the complex subject of asylum.

1.4   The EESC considers that cultural, legal, administrative and cooperation processes involving the Member States and third countries should be launched in order to build a Europe of asylum within the social Europe.

1.5   Against what appears to be an ever more complex and rapidly-changing backdrop, not least in view of globalisation trends and economic and environmental crises, non-governmental organisations are emerging and expanding their key role in this area. The EESC calls for this role to be increasingly telling and defined by society and public decision makers.

1.6   It is the natural vocation of NGOs to help and support the most disadvantaged groups. The EESC believes that the role they play in all phases of developing the procedures laid down by European and national rules in terms of aid and cultural mediation is becoming indispensable.

1.7   According to the EESC, when attempting to harmonise procedures and practice, the Commission must always take great care not to lose sight of the fact that it is dealing with people who are clearly in an extreme state of hardship and suffering.

1.8   The EU must do all it can to avoid repatriating refugees to countries where their physical or psychological wellbeing would be in jeopardy or where fundamental human rights are disregarded.

1.9   It is essential that applicants be able to express themselves in their mother tongue during asylum application procedures and that they be guaranteed free legal aid at all stages.

1.10   Rejections of applications for international protection must be explained with clear reasons and must include information on the possibilities for appeal, including procedures and timeframes.

1.11   Expulsion measures meanwhile must in any case be suspended pending the outcome of any appeals.

1.12   The EESC considers that Member States should do all they can, including by pooling relevant experience, to enable asylum seekers to work, train and take part in cultural activities, within an appropriate social environment.

1.13   The EESC believes that the principle of non-return (non-refoulement) must remain firmly in place and that there is a need to agree on a way of expanding the range of people eligible for international protection: women suffering abuse, vulnerable people, environmental refugees, etc.

1.14   The EESC argues that a sense of shared responsibility must be enhanced within the Member States, in order to stem illegal economic migration and improve measures for those who are genuinely in need, attempting to share the burden and the cost.

1.15   It is clear that the Member States should make more financial resources available to the Commission, with a view to improving asylum seeker integration policy.

1.16   The will to harmonise, demonstrated by the Commission with its recent proposals recasting the relevant directives, should be matched by an equivalent commitment from the Member States, which will have to make the necessary changes to their own national legislation.

1.17   The EESC is convinced that creating a Europe of asylum within social Europe, depends above all on the political will and awareness of Member States, facilitated by a single, well-structured procedure proposed by the Commission.

1.18   The Committee would highlight the special situation of women, who have many more difficulties than men when it comes to seeking asylum and obtaining refugee status. Therefore invites the Commission to develop all possible means, involving the Member States, in order to achieve gender equality, an area in which Europe has a long and consolidated history of awareness.

1.19   To the Committee's mind, when properly targeted, education can strengthen social and collective awareness, in terms of accepting those who have greater need of help and assistance and who are looking to the historical-religious traditions of European countries as a reliable point of reference.

2.   Introduction

2.1   Historical background

2.1.1   The origins of the right to asylum go back to ancient Greece, which recognised immunity from reprisals granted reciprocally by two cities to their respective citizens, or granted by the city to persons of high rank, such as ambassadors (3).

2.1.2   In ancient Rome, too, the jus gentium (law of nations) recognised the right to asylum in connection with citizenship status (4).

2.1.3   Developments in asylum law were subsequently intertwined with those in the various forms and expressions of persecution, i.e. repressive measures by the authorities on grounds of religious or philosophical beliefs or of political ideologies considered dangerous to the State.

2.2   Prohibition of discrimination and protection of human rights

2.2.1   As the framework of law developed, the right to asylum was extended. Thus, in particular, the constitutions of modern democratic countries usually provide that the government must refuse to extradite foreigners where such extradition is requested in respect of political offences.

2.2.2   Consequently, the fundamental charters currently in force in European countries state that foreigners who are prohibited from genuinely exercising democratic freedoms in their home countries are entitled to asylum.

2.2.3   These provisions expressly refer to the recognition of inviolable human rights and to the principle of non-discrimination. Moreover, prohibition of discrimination is explicitly enshrined in Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (5).

2.2.4   There can be no derogations from this prohibition, within the meaning of Article 15 of the Convention, where such derogation would be in conflict with other obligations arising from international law.

2.2.5   A logical consequence of this is the elimination of national opt-out clauses on asylum, not least so that the Geneva Convention relating to the status of refugees of 28 July 1951, as included in the New York Protocol of 31 January 1967, can be fully implemented and put into practice.

2.2.6   The Lisbon Treaty has broadened the EU's capacities in the area of asylum and immigration. It has incorporated the Charter of Fundamental rights, which:

—	guarantees the right of asylum;

—	provides for the development of common rules;

—	introduces an integrated system for the management of external borders;

—	recognises the importance of cooperation with third countries;

—	extends the powers of the European Court of Justice in the area of asylum and immigration.

3.   Summary of the proposed recast of the Directive

3.1   The aim of the proposal under consideration is to complete the second phase of the Common European Asylum System, which is to be introduced, along with a single asylum procedure, by 2012.

3.2   The aim is thus to address the gaps and deficiencies in the current minimum standards, which have proven in many respects to be inaccessible, inefficient, unfair and not sensitive to context (6).

3.3   The proposed changes seek above all to improve harmonisation of procedures. They also suggest further procedural safeguards for asylum applicants, particularly with regard to the initial phase of the request for protection and the decision-making process connected to it, in line with developments in the relevant case law of the European Court of Justice and the European Court of Human Rights.

4.   General comments

4.1   Building a Europe of asylum within social Europe

4.1.1   A Europe of asylum as part of social Europe must be founded on solid educational processes, aimed at pre-teenagers, which will then continue to resonate in the collective social and political awareness of the Member States.

4.1.2   The European Union, being keen to respect fundamental rights and to observe the principles laid down in the EU Charter of Fundamental Rights, adopted Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers.

4.1.3   In recent years, however, the rapid process of globalisation has, paradoxically, brought into play seismic shifts in identity, making it impossible to recreate a legal system based on universalism, such as that set up by Roman law.

4.1.4   The interaction between different people groups and the current climate of concern about cultural contact are thus giving rise to new fears and insecurities, to which almost all European countries are responding with restrictive positions on citizenship and, by extension, on asylum.

4.1.5   However, this development is contrary to the process of integration of peoples that had been hoped for and to the objective of building a Europe that is, among other things, a social Europe.

4.1.6   The principle of non-return (non-refoulement) should therefore be adhered to firmly; indeed, one could even consider increasing the number of people to be recognised as needing international protection. Moreover, various EU directives already recognise the criterion of specific types of persecution of which some women and other vulnerable individuals are victims.

4.1.7   In the current context, then, whilst refugee status must obviously be refused to those who are deemed to be merely economic migrants, for whom there are specific rules, what is more problematic is the position of environmental refugees.

4.1.8   These are, in fact, people who are forced to face the dangers and uncertainties of enforced migration due to environmental degradation that has a significant impact on exercising of human rights such as the right to life, food, health and development (7).

4.1.9   These issues could, perhaps, be looked at as part of the recast of Council Directive 2004/83/EC of 29 April 2004 on qualification and status; these new problems also deserve more in-depth consideration, including in the Proposal for a Regulation of the European Parliament and of the Council establishing a European Asylum Support Office - COM(2009) 66 final.

4.2   Specific procedures

4.2.1   The procedure for recognising refugee status must, of necessity, take a number of factors into account. These include, on the one hand, a series of legislative measures in the area of security aimed at combating illegal immigration and at addressing issues of public safety and order related to migration.

4.2.1.1   On the other hand, however, in line with the commitments made in the 2008 European Pact on Immigration and Asylum, legal immigration must be organised in such a way as to account of the priorities, needs and absorption capacity of each Member State and promote the integration of migrants.

4.2.1.2   With a view to building a Europe of asylum, it would, among other things, be useful to create a global partnership according to the principle of burden-sharing, i.e. the principle of solidarity in receiving asylum seekers and distributing them throughout the European Union.

4.2.1.3   The procedures set out in the draft recast proposal for examining requests for international protection and for revoking and terminating status once granted, as well as those set out in the recast of the procedures directive for appealing such decisions, comply with international rules and the rules set out in EU legislation.

4.2.1.4   It is of the utmost importance that non-governmental organisations be promoted and supported, not least while the procedures for preparing and examining admission requests, rejections, withdrawal of status and appeals are being launched. In this respect, the EESC suggests that the proposal should contain an explicit provision on the matter, in both its recitals and its articles.

4.2.1.5   In EU terminology, international protection includes both recognition of refugee status within the meaning of the Geneva Convention and subsidiary protection, which covers those who, whilst they do not meet the criteria for recognition as refugees, nonetheless cannot be repatriated as they are at severe risk.

4.2.1.6   Individual Member States’ implementing legislation for the above-mentioned Asylum Procedures Directive generally break the remit of the administrative authorities down into three levels: receiving applications, considering them and deciding on them.

4.2.1.7   In any case, initiating the procedure brings into play the principle that the applicant is entitled to remain in the country, and be treated in a way that respects his or her human dignity, for as long as is necessary to consider the request, subject to exceptions (European arrest warrant, etc.). In the interests of preserving people's dignity, detention in reception centres should be considered an exception pending better arrangements, not the norm.

4.2.1.8   There is also provision for a number of guarantees to protect asylum seekers: provision of sufficient information to the applicant on the procedures to be followed and on whether the application has been successful; the ability to contact the UNHCR; the assistance of interpreters; individual interview of the applicant with the competent body, whose members are to receive initial and ongoing training.

4.2.1.9   The EESC would argue that special efforts must be made to train qualified FRONTEX staff, in order to improve:

—	the coordination of operational cooperation between Member States;

—	the drafting of common training standards;

—	the provision of the necessary support for Member States when organising reception and repatriation operations, with help from cultural mediators;

—	training for officials on the humanitarian right to asylum as subscribed to by the EU, not least in the light of the launch of the future asylum agency.

4.2.1.10   The EESC takes the view that reception centres should be used only in exceptional circumstances and temporarily, in full compliance with the Charter of Fundamental Rights. Applicants for international protection should be able to lead a decent life, in all respects, i.e. in terms of their personal lives, access to healthcare, social contacts and job opportunities.

4.2.1.11   Directive 2003/09/EC, on minimum standards for asylum seekers in the Member States, leaves room for much flexibility in terms of access to employment. The EESC considers that employment restrictions of any kind tend to undermine people's human dignity while encouraging illegal employment, which leads to social injustice.

4.2.1.12   Finally, there is provision for legal aid for appeals against decisions, at both administrative and judicial level. The EESC considers that free administrative and legal aid must be stepped up and be made compulsory, along with linguistic assistance, at all stages of the procedures.

5.   Specific comments

5.1   The changes proposed are consistent with the aim of harmonising and updating procedures relating to recognition of refugee status.

5.2   As to the substance of the proposals, it would be useful to take a critical look at the reasons for removing all explicit references to asylum from the proposal.

5.3   As a result, reference in the new text to asylum could continue to be understood as recognition of the right to enter a country's territory, possibly in order to apply for refugee status, pending verification of the requirements for recognition of that status and with the resulting prohibition on expulsion in the interim.

5.4   Furthermore, reference to the right to asylum would lend legitimacy to Member States which decide to apply the new directive even in cases that are beyond its scope (see Articles 3, 4, 11 and 12 of the proposal), where there are serious humanitarian reasons preventing return to the country of origin, irrespective of specific acts of persecution (8).

5.5   The EESC supports the modifications suggested, as they coincide with the above-mentioned objectives.

5.5.1   The following points might, however, be raised:

5.5.1.1

Recital 38: when stating the need for the implementation of the directive to be evaluated at regular intervals, it would be preferable to give a more precise timetable;

5.5.1.2

Recital 41: substantive changes to the earlier directive, whose transposal is mandatory, should be specified more clearly;

5.5.1.3

Article 2(f): the determining authority should be defined more carefully, as a number of national legal systems do not provide for the concept of a ‘quasi-judicial’ body;

5.5.1.4

Article 3(3): by way of example, the directive should specify any cases where it might be applied to requests for protection that go beyond its scope (see the comments made on the new environmental refugee phenomenon);

5.5.1.5

Article 6: the provision allowing Member States to require that applications be made in a designated place does not appear to be in line with the subsequent provisions of Article 7, and seems restrictive given the prior objective of providing broader access to the procedure;

5.5.1.6

Article 10(13) (9): in all cases of negative decisions, the person concerned and his or her legal representatives must be informed in his or her own language, not only of the reason for the rejection of the request, but also of the (reasonable and acceptable) time frames, arrangements and procedures for opposing the decision and lodging an appeal;

5.5.1.7

Article 12(19)(d) (10): allowing the competent authorities to search the applicants and their personal effects may run counter to constitutional guarantees provided for in the legislation of the various Member States;

5.5.1.8

Article 34(1)(c): the serious grounds submitted by the applicant to show that a third country designated as a safe country of origin is, in reality, not safe should be specified more clearly; although the EESC believes it is difficult to establish a unanimously accepted definition of a safe third country;

5.5.1.9

Food for thought on this may be provided by EU Court of Justice judgement C-133/06 of 6 May 2008, which annulled Articles 29(1) and (2) and 36(3) of the Asylum Procedures Directive (2005/85/EC).

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(1)  COM(2007) 301.

(2)  COM(2008) 360.

(3)  Immunity also protected fugitives, who could not be captured in certain temples that were considered inviolable, which gives us the etymological root of ‘asylum’.

(4)  Incidentally, the right of citizenship was generalised by the edict issued by Caracalla in 212 A.D., which abolished any difference in treatment between Roman citizens and other citizens of the Empire.

(5)  The Convention, which was signed in Rome on 4 November 1950, and the Additional Protocols relating to it, have been ratified and made enforceable by the EU Member States, but also by many third countries in Europe, which gives the provisions wider binding effect in terms of international and domestic law.

(6)  It appears that the lack of fairness in the procedures adopted by individual Member States can be attributed, in particular, to the excessive discretion provided for by the 2005 Asylum Procedures Directive.

(7)  The criterion of security as a fundamental value of human beings should, therefore, be expanded. Environmental refugees are victims of environmental destruction and of social imbalances related thereto, as, for example, in the case of the gradual desertification of swathes of sub-Saharan territory caused by new forms of aggressive speculation.

(8)  Provision is not generally made for the recognition of refugee status in cases of refugees leaving their countries not because of individual discrimination suffered but as a result of serious events (civil war, generalised violence, external aggression, natural disasters, environmental disasters, etc.). Nevertheless, the laws on immigration allow for a response to made to humanitarian emergencies caused by exceptional events, providing for the temporary protection measures necessary to receive displaced people in a timely and appropriate manner.

(9)  N.B.: Article 10(2) of the English version.

(10)  N.B.: Article 12(2)(d) of the English version.

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