C Explanatory
memorandum by Mr Cilevičs, rapporteur
1 Introduction
1. During the period 2001-2006, the number of asylum
applications across the Council of Europe member states declined
significantly, with the exception of some countries in southern
Europe and of a slight increase in 2007 as a result of the arrival
of a large number of asylum seekers from Iraq. In the 27 European
Union member states, the overall number of applications decreased
by more than half during this period, This, however, cannot hide
the fact that there are important shortcomings in terms of quality
and consistency of the asylum decisions taken in the Council of
Europe member states. As evidence of this, in 2007 acceptance rates varied
considerably between 1% and 39% in countries receiving significant
numbers of asylum seekers. The situation was even more dramatic
when looking at certain specific groups of asylum seekers. For example, again
in 2007, the acceptance rates for Iraqis seeking protection in Europe
varied between 0 and 81% in countries that received significant
numbers of these asylum seekers.
2. The very low recognition rates in certain countries, or for
certain groups of asylum seekers may be due to a number of factors.
This may be due to difficulties in accessing the asylum process,
procedural rules that undermine assessment of the facts and preclude
the applicant’s provision of a fulsome account; poor procedural
safeguards in the asylum proceedings, restrictive and divergent
interpretation of eligibility criteria, lack of training of the
relevant authorities and their personnel, lack of objective and
reliable country of origin information, poor evidential assessment
or political pressure, from politicians or the media, or a combination
of these factors. Asylum decisions are also inconsistent within
one and the same member state, as well as across the Council of
Europe. Inconsistency in asylum decisions means that similar claims
are treated differently. This is an affront to the rule of law and
inherently unfair.
3. There is also a significant difference in the ratio between
the number of cases in which refugee status is granted and the number
of cases in which the applicant is afforded complementary protection
Note or some other form of protection. As
an example, in 2007, in the Netherlands, of those asylum seekers
who were granted protection, 12% were granted refugee status and
88% complementary protection. In France and in Germany, the corresponding
figures were on the contrary 91% refugee protection and 9% complementary
protection for both countries. The level of protection therefore
can vary greatly between the two forms of protection. The choice
made by the authority that examines an asylum application, as to
the form of protection granted, can have important consequences
for the individual asylum seeker. Depending on the legislation of
the country in question, complementary protection may entail the
right to a residence permit for a shorter or a longer period and
might give rise to a more or less favourable situation in terms
of access to economic and social rights.
4. In some Council of Europe member states, up to 50% of first
instance decisions on asylum are overturned on appeal, indicating
that first instance decisions might be unreliable. The “frontloading”
of resources – to concentrate resources as early as possible in
the asylum procedure – has long been urged in order to improve first
instance decision making. An appeal against a decision does not
only give rise to insecurity and to a longer period of time during
which the asylum seeker is obliged to wait for a final decision, it
also raises issues as to the quality of the first instance decision.
Furthermore, an appeal obviously implies additional costs for the
authorities.
5. It is sometimes argued that asylum seekers engage in so-called
“asylum-shopping”, implying in a pejorative way that strategic decisions
are made about where to apply for asylum according to taste or convenience
and based on the real or perceived generosity of the country of
destination. There is, however, little meaningful choice for the
asylum seeker as regards the country of destination. This is more
likely dictated by ease of access or ties with the country concerned
(family members present, familiarity with the language, historic
(including colonial) ties, etc.).
6. Furthermore, for European Union member states the implementation
of the Dublin II Regulation and “safe country”
Note mechanisms
shuttle asylum seekers to other states said to have primary responsibility
for them. This largely precludes the choice of country in which
to lodge an application. The allocation of responsibility to one
state over another has grave consequences as regards access to a
fair and efficient procedure, captured in the expression “asylum
lottery”. Ending the asylum lottery is long overdue. The Dublin
Regulation and “safe country” mechanisms fail to take into account
significant divergences in recognition rates as between member states
and are thus premised on the false assumption of equal standards
of protection across Europe.
7. In the year 2000, following the report on “Restrictions on
asylum in the member states of the Council of Europe and the European
Union”, prepared by this rapporteur, the Assembly recommended the
Committee of Ministers (CM) to envisage drawing up a European Convention
for the harmonisation of asylum policies based on the highest common
denominator, with a view to improving the standard of protection
for refugees and asylum seekers in Europe (
Recommendation 1440 (2000)). It was also recommended that the right to asylum be
incorporated into the European Convention on Human Rights (ECHR).
These recommendations are still to be translated into action and
it is therefore relevant to repeat them in the context of the present
report. It can also be reiterated that as far back as 1967, the
Committee of Ministers recommended to member states that they treat
refugees and asylum seekers in a “particularly liberal and humanitarian
spirit”, with full respect for the principle of
non-refoulement (CM Resolution (67)
14). This certainly entails ensuring that asylum decisions are consistent
and of high quality.
8. It is in the light of the above that this report on the improvement
of the quality and consistency of asylum decisions in Council of
Europe member states has been prepared. As part of the preparation
of the report, on 2 April 2008, the rapporteur made a study visit
to London where he met with representatives of the Office of the
United Nations High Commissioner for Refugees (UNHCR) and selected
NGOs, as well as with the Home Office and the Asylum and Immigration
Tribunal, all of whom provided a great deal of valuable information. Furthermore,
on 19 May 2008, a hearing was organised in Paris, with a particular
focus on asylum procedures in France. The meeting benefited from
an exchange of views with the Office
français de protection des réfugies et apatrides (French
Office for the Protection of Refugees and Stateless Persons - OFPRA)
and with members of civil society. The rapporteur was also greatly
assisted by a legal consultant, Ms Cathryn Costello, Fellow and Tutor
at Worcester College, Oxford, who prepared a background paper surveying
the literature on this topic on which the rapporteur has based his
work and the report. The rapporteur would like to warmly thank all
those mentioned above for their valuable contributions.
2 Relevant
European Union initiatives
9. A great deal of work has been carried out by the
European Union and it will be referred to by the rapporteur in the
course of the report. In this respect, the rapporteur would like
to highlight at this stage some the most important steps taken at
Union level, which have an impact on the issues discussed.
10. The Treaty of Amsterdam, which entered into force in May 1999,
created competence for the adoption of binding European Union standards
in the field of refugee law. At that point, the European Union had
already adopted the Schengen and Dublin Conventions and measures
dealing with matters such as safe country of origin and safe third
countries. In 1999, the European Council adopted a programme setting
out the goals of a “Common European Asylum System” (CEAS). In 2004,
the European Council adopted a further five-year programme of action
in the field. The programme identified as a priority the establishment
of a common asylum procedure and a uniform status for those who
are granted asylum or complementary protection.
11. It is against this back-drop that further European Union initiatives
have been taken. The Dublin II Regulation is designed to ensure
that asylum seekers can only claim asylum in one member state. Usually
this will be the country through which the asylum seeker first entered
European Union territory, whether with a visa or irregularly. The
Regulation establishes criteria and mechanisms for determining which
member state is responsible for examining an application for asylum
lodged by a third country national in the European Union.
12. Furthermore, pursuant to the objectives of CEAS, the European
Council has adopted the following directives: the Qualification
Directive and the Procedures Directive and, less relevant to this
report, the Temporary Protection and Reception Conditions Directives.
The aim of the Council’s Qualification Directive of April 2004 is
to resolve the disparate interpretation of the 1951 Geneva Convention
in member states. Article 6 of the directive states that “the main
objective of this directive is … to ensure that member states apply common
criteria for the identification of persons genuinely in need of
international protection”. The Asylum Procedures Directive includes
provisions on the first asylum country, safe third country and safe
country of origin.
13. In 2007 the European Parliament published a report on asylum
called “Report on asylum”: practical co-operation, quality of decision
making in the Common European asylum system” (rapporteur: Hubert
Pirker). According to the report, strengthening mutual trust is
the cornerstone of the process of establishing a common asylum system.
The report also called for a joint database, containing information
on countries of origin, joint guidelines for the collection and
analysis of information about countries of origin and the adequate
training of civil servants.
14. In June 2008, the European Commission observed that there
was a critical flaw in the CEAS, namely that different traditions,
diverse country of origin information sources and a lack of common
practice produces divergent results. It is also noted that an ever-growing
number of asylum seekers are granted complementary protection and
not refugee status. The Commission believed this was due to the
fact that an increasing share of today’s conflicts and persecutions
are not covered by the 1951 Convention. This is however also likely
to be due to the fact that fewer rights usually attach to Complementary
Protection.
15. In 2009, the Commission proposed the setting-up of a European
asylum support office. The office, when established, will work closely
with the UNHCR. It is intended to provide practical assistance to
those countries which receive the most asylum applications. The
office will also assist member states in comparing good practices
and organise training at European Union level. It will also facilitate
practical co-operation between member states and non-member states
of the European. The office should be founded on principles of democratic
accountability and transparency and it should ensure close co-operation
with UNHCR and other independent asylum experts in carrying out
its work.
16. The project of creating a common asylum system within the
European Union should be carefully evaluated. Where necessary it
should be changed in order to ensure that it contributes to more
consistency and quality and that it does not in fact adversely affect
asylum seekers. It is particularly important to make sure that consistency
is not achieved to the detriment of procedural safeguards and that
minimum standards do not also become maximum standards. If the harmonisation
within the European Union proves successful, in terms of enhancing
the quality and consistency of decisions and thus increasing the
level of protection, it is crucial that these effects spill over
also to all Council of Europe member states that are not members
of the European Union. The Council of Europe should take a leading
role in ensuring that coherence and a high common quality of asylum
decisions encompass also non-Union members.
17. In the rapporteur’s opinion, whereas the initiative of the
European Union to set up a European asylum support office should
be viewed as something positive, it is important to carefully monitor
its future work. It is equally important to monitor the implementation
of the recently agreed European Pact on Immigration and Asylum.
3 Analysis of statistics
on acceptance rates
3.1 Comparison of acceptance
rates
18. There are shortcomings in national asylum statistics.
Statistics from some countries relate only to first instance decisions
and do not reflect recognition following appeals. Others include
decisions taken on appeal or following administrative review, as
well as at first instance, in the total number of decisions taken
during a given period of time. This means that one and the same
individual may be counted more than once. Determination of complementary
protection relates to different forms of ad hoc status, not all
of which are counted in the official statistics as positive recognition.
Some states operate strategies of suspending or delaying the processing
of asylum applications until a time when they deem that a negative
decision can be taken. Statistics may record decisions to return
asylum seekers under the Dublin Regulation or under safe third country
policies as rejections. Nationality, rather than ethnic data, is
taken into account, something which is particularly relevant in
Chechen and Roma cases. Bearing in mind the above, there is a clear
need for further harmonisation of the way statistics are assembled
and presented.
Note The summary below is based on statistics provided
by the UNHCR
Note and by Eurostat.
Note
19. Overall acceptance rates.
Note In
2007, France closed 61 945 asylum applications. 23% resulted in protection
being granted.
Note In Germany, 28 572 asylum applications
were decided upon in 2007, with a 27.5% acceptance rate. The United
Kingdom decided 41 184 applications and granted protection in 24.7%
of the cases. In some of the other European countries which decided
significant number of asylum applications in 2007, the acceptance
rates were the following: Netherlands, 37%; Belgium, 27%; Switzerland,
35%; Sweden, 39% and Norway 36%. Greece decided 27 282 cases in
2007 and only 163 individuals or less than 1%, were granted protection.
Slovakia decided 2 966 cases and afforded protection to 96 asylum
seekers, representing 3% of cases. The conclusion is that acceptance
rates vary considerably between the different member states. It
is true that member states receive asylum seekers from different
countries of origin, whose needs for protection might vary. However,
as follows from the statistics on the origin of asylum seekers in relation
to their respective countries of destination, which is presented
below, the acceptance rates can be seen to vary also with these
factors taken into account.
20. Clearance rates. As
for clearance rates, that is the difference between the number of
pending asylum applications in a country at the beginning and at
the end of a year, some countries can be found to have more important
“backlogs” than others. At the end of the year 2007 in France, 31 051
applications were pending against 39 571 at the beginning of the
year, meaning a decrease of 22%. In Germany the pending applications at
the end of the year were 34 063 against 43 978 at the beginning
of the year which is a decrease of 23%. In the United Kingdom, the
pending cases at the end of the year were 10 900 against 12 400
at the beginning, i.e. a decrease of 12%. The figures for some other
countries were: Netherlands, ‑23%; Belgium, ‑12%; Switzerland +12%;
Note Sweden +39%
Note and Norway -18%. While it is difficult
to interpret these statistics, it is important to see trends. Increasing
backlogs may indicate large numbers of arrivals and may sound warning bells
of pressures on the system. Overly swift decreases may however also
need clarification as speed of clearance should not be given priority
over fairness of procedures.
21. European Union statistics for 2008.Note If looking only at the
27 European Union member states, statistics are available also for
2008 which enables us to compare the levels with 2007. In 2008,
there were nearly 240 000 asylum applicants registered in these
27 countries. The highest number of applicants were registered in
France in 2008 with 41 800 applicants. 31 000 applications were
pending in France at the end of 2007, which means an increase of
35%. The United Kingdom recorded 30 500 applicants (only new applicants)
in 2008 compared to 42 000 in 2007, a decrease of 27%. Figures for
other countries were: Germany, -12%; Sweden -10%; Greece -30% and
Belgium +4%. The main countries of citizenship of these applicants
in European Union member states were Iraq (29 000 or 12% of the
total number of applicants), Russia (21 100 or 9%), Somalia (14 300
or 6%), Serbia (13 600 or 6%) and Afghanistan (12 600 or 5%).
22. When compared with the population of each European Union member
state, in 2008, the highest rates of applicants (per million inhabitants)
registered were recorded in Malta (6 350 applicants per million),
Cyprus (4 370), Sweden (2 710), Greece (1 775), Austria (1 530)
and Belgium (1 495). In some member states, a large proportion of
the applicants came from a single country. The member states with
the highest concentrations were Poland (91% of the applicants came
from Russia), Lithuania (77% from Russia), Hungary (52% from Serbia),
Luxembourg (48% from Serbia) and Bulgaria (47% from Iraq).
3.2 Examination of
acceptance rates for specific groups
23. Chechen asylum seekers. The
disparate treatment of Chechen asylum seekers across Europe has
led to repeated interventions from UNHCR, urging that all Chechens
be considered in need of international protection, unless there
are serious grounds to exclude them from refugee status. However,
as the European Council on Refugees and Exiles (ECRE) notes: “Throughout
Europe the treatment of Chechens seeking protection varies considerably,
with refugee recognition rates in 2003 ranging from 0 (Slovakia)
to 76.9% (Austria), showing that for many Chechens, the outcome
of the “asylum lottery” will very much depend on the country in
which they seek asylum.”
Note ECRE
has reiterated these concerns more recently, highlighting the huge
variation in recognition rates and reception conditions in the case
of Chechens.
Note Equally worrying
is that in 2007, the recognition rate in the Slovak Republic (349
decisions) was also 0 for Chechens.
24. Iraqi asylum seekers.
A study from 2007 examined the recognition rates for Iraqi asylum
seekers in four European countries: Germany, Greece, Sweden and
the United Kingdom.
Note In
Greece, recognition rates were negligible (actually 0 in 2006).
In the United Kingdom, the recognition rate for Iraqi asylum claims
had declined markedly, from a 44% recognition rate in the period
1997-2001, to 0.4% in 2004 and 2005. The Home Office Operational
Guidance Notes on Iraq differed from the view of UNHCR. Whereas
UNHCR took the view that, in general, there was no internal flight
alternative in Iraq, the Home Office maintained that “there is general freedom
of movement within the country and it is unlikely that internal
relocation would be unduly harsh for men and women with partners
or relatives”. It concluded that, unless there is a serious risk
of adverse treatment and internal relocation would be unduly harsh,
it would not be appropriate to grant refugee status.
25. The recognition rate for Iraqis in Germany has also been low
and the German authorities have even revoked the protection status
of those granted protection before 2003. Between 2003 and 2006,
nearly 19 000 Iraqi refugees had their refugee status revoked, based
on the argument that they had fled the Saddam Hussein regime and
that the grounds for their protection were no longer present.
Note This policy
was however altered in June 2007. Iraqis who have seen their refugee
status revoked have, however, been allowed to stay in Germany until
further notice.
26. The study contrasted the Greek, British and German practices
with those in Sweden, where, with generosity, the majority of Europe’s
Iraqi asylum seekers have been accommodated. Previously, Swedish authorities
had granted a significant proportion (24%) of Iraqis complementary
protection, although few were granted refugee status. In 2006, Sweden
recognised 91% of Iraqis as in need of protection, based on UNHCR’s advice.
According to the study, the Swedish Migration Board decided early
in 2006 that all Iraqi asylum seekers from central and southern
Iraq whose claims had been rejected as part of the normal status
determination process would nevertheless receive a permanent residence
permit in Sweden. This was in accordance with the UNHCR guidelines,
which stated that no returns to these dangerous areas would be possible
in the foreseeable future. Instead of spending years awaiting deportation
as failed asylum seekers with only minimal rights, the majority
of Iraqis in Sweden were therefore able to begin the process of
fully integrating into Swedish society with a secure legal status.
In 2007, 81% of the Iraqi protection seekers were granted protection.
Of all those granted protection, only 1% received refugee status,
the remaining 99% received complementary protection.
27. However, this decision was followed by a significant increase
in applications, leading to Swedish appeals to fellow European Union
governments for greater solidarity in protecting refugees from Iraq.
In July 2007, following a judgment from the Supreme Migration Court
in which the situation in Iraq was found not to amount to an “internal
armed conflict”, a change in Swedish policy was announced. Thereafter,
only those Iraqis personally threatened or harassed were to be granted
protection. Since then, Iraqis have been denied asylum in Sweden
and the authorities have been criticised by Amnesty International
for failing to recognise an ongoing internal armed conflict in Iraq.
Note Sweden
recently signed a readmission agreement with Iraq.
28. ECRE undertook a further study, published in March 2008, estimating
that recognition rates for Iraqi asylum seekers at first instance
varied between 0 and 90% in Europe. It is thus clear that the acceptance
rates continue to fluctuate widely for Iraqis.
29. Afghani asylum seekers. For
Afghani asylum seekers, in Austria in 2007, 84% were granted protection, whether
complementary or as refugees. In Russia 100% and in Italy 98% of
Afghanis were granted protection. The figures for Turkey and Ukraine
were 89% and 50% respectively. For the same year no Afghanis were
given protection in Greece. In absolute numbers, there was no significant
difference between the said countries in the number of pending applications
from this group.
30. Roma asylum seekers from Kosovo.
Note In
its 2006 Position paper on the situation of Roma in Kosovo, the
UNHCR advised against returning Roma, Ashkalia and Egyptians to
Kosovo, or to Serbia proper, in view of persisting threats against
these groups in Kosovo. Council of Europe member states responded
differently to this recommendation. Germany took a harsh stance
on Kosovo Roma asylum applications and concluded a readmission agreement
with Serbia under which a large number of Roma refugees were returned
to that country. A new position paper from the UNHCR is awaited
in the near future.
3.3 Appeals
31. It is also interesting to look at how many of the
asylum seekers were successful in the first instance and how many
had their application granted upon appeal.
Note In France in 2007, 14 196 persons
were granted protection. Of these 24% had a positive first instance
decision with 38% upon administrative review and 38% as a result
of a repeated or reopened application. Of the 7 870 cases granted
protection in Germany, 39% were the result of new applications,
62% of a repeated or reopened application. In the United Kingdom,
of 10 189 granted protection, 67% applications were granted at first
instance and 33% as a result of administrative review. Of the 5 717
cases with a positive outcome in the Netherlands, 78% asylum applications were
granted at first instance and 22% following administrative review.
In Sweden 16 451 people were granted protection in 2007, of whom
95% in first instance and 5% upon administrative review. In Norway,
of 4 492 positive decision, 65% had positive decisions at first
instance, and 35% succeeded during the administrative review stage.
The conclusion appears to be that in most countries asylum seekers
have to lodge either an appeal or a claim for administrative review,
or try to reopen or renew the application in order to have a positive
outcome. The exception appears to be Sweden, where a large majority
of persons had a positive result at first instance. As follows from
the next paragraph, however, these were mainly cases of complementary
protection, not refugee status.
3.4 Complementary protection
32. The ratio between the number of asylum seekers granted
protection under the Geneva Convention and those afforded complementary
protection, which normally entails fewer rights and less security
than refugee protection, is interesting to study. In France in 2007,
of all those granted protection, 91% were granted refugee status
and 9% complementary protection. In other countries the proportion
of applicants afforded refugee status as opposed to complementary
protection were: Germany, 91%;United
Kingdom, 77%; Switzerland, 36%; Norway, 24%; Sweden, 7%, Malta,
1% and the Netherlands, 12%. The conclusion is quite clearly that
there is one set of countries which prioritise protection under
the Geneva Convention, inter alia France and Germany, and another
set that finds it more justified to grant complementary protection, represented
most prominently by Sweden, Malta and the Netherlands.
4 Reasons for diverging
acceptance rates
33. The rapporteur has highlighted seven reasons for
diverging acceptance rates which are dealt with in this section
of the report. They include:
i difficulties
in accessing the asylum process;
ii lack of procedural safeguards, including at appeal level;
iii restrictive and divergent interpretation of eligibility
criteria;
iv quality of evidence, personal testimony and country of
origin information;
v evidential assessment;
vi training of those involved in taking decisions in asylum
cases;
vii political pressure.
4.1 Difficulties in
accessing the asylum process
34. It is essential for asylum seekers to receive full
information about procedures affecting them, in a language they
understand. Furthermore they must have adequate time to present
their case, they must be able to present their case in person and
have legal assistance and legal aid. These are the cornerstones
for having access to the asylum process.
35. Right to receive information and
communicate with UNHCR and others. It is essential that
information about the asylum procedure should be provided in a language
that the asylum seeker actually understands Furthermore, in order
to be able to make the most of his or her application, the asylum
seeker should be allowed access to information, such as the reception
of letters from the country of origin, which may contain evidence
crucial for the positive outcome of the application. Being allowed
to communicate with the UNHCR should be an important element in
particular, as it allows UNHCR to fulfil its international protection
mandate.
Note The Procedures Directive provides
for the UNHCR to have the right to communicate with the asylum seeker (Article
21), but regrettably not vice versa. In practice, the right to communication
is a problem primarily for those asylum seekers who are detained.
36. Access to an interpreter. Asylum
seekers often need an interpreter in order to properly and effectively put
forward their case. Being denied access to an interpreter may consequently
lead to asylum decisions of less good quality. The question of language
arises already if the asylum seeker is required to fill in the application
form in the language of the country to which the application is
submitted. In France, for example, the asylum seeker is obliged
to fill in the application form in French and must do so within
the fairly strict time-limit of 21 days if allowed to stay, 15 days
if not allowed to stay and five days if held in a holding centre.
No state-paid interpreter is provided for the filling in of the
form. The French authorities, however, claim that the first application
form to be filled in is intended only to present the most basic
reasons for the application. If the form is not completed in French,
it is sent back to the asylum seeker. NGOs have been critical of
this practice, claiming that many applications fail due to this
requirement.
37. Personal interview. Article
12 of the European Union Procedures Directive sets out that before
an asylum decision is taken, the applicant shall be given the opportunity
of a personal interview on his or her application. However, the
provision continues to state a number of exceptions to the rule.
For example, an interview may be omitted if the determining authority
is able to take a positive decision on the basis of evidence available. Moreover,
the absence of a personal interview does not prevent the determining
authority from taking a decision on an application for asylum. Member
states may determine in national legislation the cases in which a
minor shall be given the opportunity of a personal interview. Therefore,
the text of the Procedures Directive is troubling, in particular
the range of grounds upon which European Union member states are
apparently permitted to dispense with the interview, including for
instance where the applicant has made “inconsistent, contradictory,
unlikely or insufficient representations which make his/her claim
clearly unconvincing in relation to his/ her having been the object
of persecution.”
Note As will be explained below, the case
law of the ECHR makes clear that inconsistencies should not lead
to too hasty findings of lack of credibility. A personal interview should
be the cornerstone of the asylum process. This is the case in France,
for example, where all applicants are called to a personal interview.
38. Right to legal assistance and representation.
Article 15 of the Procedures Directive provides that member states
of the European Union shall allow asylum applicants the opportunity,
at their own cost, to consult a legal adviser on matters relating
to their asylum applications. In the event of a negative decision
by a determining authority, member states shall ensure that free
legal assistance and/or representation be granted on request. The
right to legal assistance and representation, free of charge, according
to the relevant national rules on legal aid is set out in the Council
of Europe Twenty Guidelines on Forced Return. This right is applicable
in the “process leading to the removal order”, i.e. from the beginning
of the process, no distinction being made as to first instance or
appeal proceedings. The possibility is also preserved, for member
states which so choose, to grant legal aid subject to conditions
they see fit, provided these are not discriminatory and remain in
compliance with their international legal obligations (including
inter alia, the European Community notion of fair procedures set
out in Article 47 of the European Union Charter of Fundamental Rights,
and, through these channels, the case law of the European Court
of Human Rights as regards the provision of legal aid to safeguard
the individual “in a real and practical way”
Note).
39. In cases where the asylum seeker is not able to avail him
or herself of this right, there is an obvious risk that the case
will not be examined in the same thorough way as if argued by a
legal representative. Asylum decisions which have not taken all
the relevant circumstances of the case into account, will obviously
be of an inferior quality. In practice many asylum seekers do not
have legal assistance and are not represented despite the seriousness
of the determination for him or her. The Council of Europe should
examine in more detail the extent of the problem of lack of representation
in member states as a limitation of the right of access to justice.
4.2 Lack of procedural
safeguards, including at appeal level
40. Procedural safeguards are necessary preconditions
for accurate, reliable and consistent asylum decisions and for protecting
the dignity of asylum seekers. The absence of certain safeguards
in member states is an important reason for inconsistency.
41. Procedures Directive.
This Directive should have brought about an improvement in the quality
and consistency of asylum decisions, but unfortunately it reflects
some less positive features of domestic asylum procedures. It has
even been criticised as a means of denying refugees access to asylum
procedures and for countries of ridding themselves of asylum seekers
by facilitating their transfer to countries outside the European
Union. The UNHCR, in particular, has criticised the Directive in
relation to the provisions on safe third countries and non-suspensive
appeals, for not corresponding to the standards set out in the European Convention
of Human Rights and the jurisprudence of the European Court of Human
Rights.
42. The UNHCR has made the following comments in its 2007 publication
Response to the European Commission’s Green Paper on the Future
Common European Asylum System.
43. “A common system and a certain degree of harmonization of
member states’ procedures are needed to ensure an appropriate level
of consistency. The current system, in which responsibility for
assessing applications for protection rests with member states and
their national asylum institutions, produces very different results
from one country to another. As a result, persons in need of international
protection have varying chances of finding protection, depending
on where they apply. A centralized institutional structure for adjudication
of asylum applications would be one way to remedy this problem.
However, in a climate in which member states are cautious about
far-reaching changes and transfers of procedural competence, the development
of an European Union asylum procedure under a single institution
would seem unrealistic, at least in the current phase which aims
to complete the Common European Asylum System by 2010. Nor is it necessary.
UNHCR believes that the existing system based on national institutions
and procedures could be strengthened and could achieve more consistent
and more satisfactory outcomes if Community institutions were able
to ensure better monitoring and quality control, and providing that
Community instruments guarantee appropriate standards across the
Union.”
44. The European Commission, in its 2008 Communication, acknowledged
that a fundamentally higher level of alignment between member states’
asylum procedures is called for. The Commission proposed the following amendments
to the directive, to be put forward in 2009:
- setting up a single, common asylum procedure, leaving
no room for disparate procedural arrangements in member states;
- establishing obligatory procedural safeguards as well
as common notions and devices in order to consolidate the asylum
procedure and ensure equal access to procedures throughout the European Union;
- accommodating the particular situation of mixed arrivals,
including where persons seeking international protection are present
at the external borders of the Union;
- enhancing gender equality in the asylum process and providing
for additional safeguards for vulnerable applicants.
45. Effective legal remedy.
National courts bear the responsibility to ensure reliability and
consistency of asylum decisions. In some member states, up to 50%
of first instance decisions are overturned on appeal, indicating
that first instance decisions may be unreliable (see section on
statistics above). This is undesirable because of the uncertainty
it causes for applicants as well as because of the costs and time
of asylum processing at both levels. In France, for example, more
cases of protection are granted by the appeal court than by the
first instance authority. NGOs claim that this state of affairs
could be the result of too large a quota of applications (2.2 per
day) that staff of the French first instance migration board (OFPRA)
are set to decide per day, as well as the maximum processing time,
which has been set at 60 days. NGOs propose that quality and not
only quantity criteria be taken into consideration in setting the
objectives and carrying out the assessment. Such criteria should
include, inter alia, interview
rates, the length of interviews, the qualification of interpreters,
the statement of reasons for decisions and the production of interview
records and, of course, the number of decisions set aside by the
appeals court.
46. It is important to have a second instance that controls decisions
of first instance authorities. The first instance should, however,
be where final decisions are primarily taken. Second instance tribunals
should see more than one judge decide on the appeal. One best practice
would be the French system, in which the second instance consists
of several members – lawyers and lay-judges – including one member
nominated by the UNHCR.
47. Use of accelerated procedures.Note In
recent years, member states of the Council of Europe have come under
increasing pressure to process asylum claims rapidly. This has led
to the introduction of various accelerated asylum procedures. There
is no common definition of “accelerated asylum procedures” at international
or regional level. The expression simply indicates that some applications
are processed faster than others. It thus covers a variety of procedures,
for example the use of the notion of the safe country of origin,
the application of the principle of a safe third country and procedures
adopted at the border for dealing with asylum seekers.
48. The large number of different accelerated procedures applied
in member states of the Council of Europe contribute to what has
been called the “asylum lottery”. The need for states to process
asylum applications in a rapid and efficient manner must be weighed
against the obligation to provide access to a fair asylum determination
procedure for those who might be in need of international protection.
This balancing of interests, however, does not imply in any circumstances
that states may compromise their international treaty obligations.
49. In its
Resolution
1471 (2005) “Accelerated asylum procedures in Council of Europe
member states”, the Parliamentary Assembly recommended that accelerated
asylum procedures should only be applied as an exception and highlighted
that such procedures, because of the emphasis on speed, risked lowering
the quality and coherence of asylum decisions. The Assembly urged
the Committee of Ministers to initiate drafting of guidelines at
the inter-governmental level. The rapporteur welcomes this work,
but regrets that the guidelines that have been prepared under the
authority of the Steering Committee for Human Rights (CDDH) are somewhat
disappointing. It is clear that the draft document is relatively
watered down and that the guidelines are not sufficiently ambitious
in terms of protection. The principle that accelerated procedures
should be an exception has, for example, not been expressed clearly.
The earlier Assembly recommendation for member states to refrain
from automatic and mechanical application of short time limits to
lodge an application for asylum, in particular in view of the judgment
of the European Court of Human Rights in the case of
Jabari v. Turkey,Note has
not been taken into account in the guidelines. The guidelines should
nonetheless contribute to ensuring that accelerated asylum procedures
are used more fairly across Europe and that the dangers of quality
and inconsistency are at least narrowed through its application.
50. Use of the notion of “safe country
of origin” and “safe third country”. Various procedural
mechanisms across Europe permit the transfer of asylum seekers to
so-called safe countries of origin or safe third countries. The
idea is that an asylum seeker does not have to be afforded a fully-fledged
assessment of the claim, provided that he or she originates from
or could be returned to a third country which is considered “safe” according
to certain parameters. The individual generally has the right to
rebut the assumption of safety. In order for any transfer to be
lawful, the authorities in the transferring state must also ensure
that the third country will be safe for the particular applicant.
Based on the case law of the European Court of Human Rights, national courts
have sporadically intervened to prevent removals under the Dublin
II Regulation and on the basis of safe third country policies, when
the standards of protection applicable in other member states have
fallen short of the Strasbourg standards. However, there are also
instances where national courts seem too lenient and have permitted
transfers which should have been blocked.
Note More recently, courts in several member
states have deemed Greece to be “unsafe” for return of asylum seekers,
as have several governments. These cases indicate that there are
serious shortcomings in asylum determinations in the receiving states.
51. The rapporteur is of the view that member states should refrain
from the use of lists of safe third countries and safe countries
of origin. However, if they are used the practice has to be carefully
evaluated. It is of crucial importance that each asylum seeker is
afforded an analysis of the circumstances in his or her particular
case without prejudice to what is considered the general safety
of the country of origin or third country. In any event, the asylum
seeker must be allowed to rebut the assumption of safety.
52. The Dublin II Regulation.
An instrument that aims to ensure genuine responsibility-sharing
in the field of asylum decisions might be something desirable. However,
it has been argued that the implementation of the European Union
Dublin II Regulation compounds the problem of inconsistency and
varying quality of asylum decisions in Europe. For example, some
states are denying access to an asylum procedure to individuals transferred
under the Dublin system, thereby placing them at risk of
refoulement. Furthermore, applicants
are often not informed about the workings of the Dublin system in
cases where the identification of a responsible state might actually
be of use to the applicant, for example where they have family members
in another state. States are failing to share information with each
other, which can also frustrate the quick and correct identification
of the responsible state. Most states do not guarantee a suspensive
appeal right enabling individuals to challenge transfer under the
Dublin Regulation in cases where mistakes might have been committed.
Also some Council of Europe member states which are not members
of the European Union, namely Iceland, Norway and Switzerland, have
agreed to implement the Dublin Regulation. Nevertheless it is clear
that membership of international treaty regimes and organisations,
including the European Union, do not absolve Council of Europe member
states from their obligations under the ECHR such that the Court
will always apply the most rigorous scrutiny in its review of Article
3 cases.
Note
53. The UNHCR has concluded that the Dublin Regulation may result
in an unequal distribution of responsibility for protection seekers,
particularly as far as the external borders of the European Union
are concerned. The UNHCR put forward the suggestion that states
which face disproportionate pressure could under certain circumstances,
be released from their responsibility to readmit asylum seekers
who have moved on to another European Union member state, and to
assign responsibility to that latter state. This would achieve a
better responsibility sharing.
Note It could
also contribute to the improvement of the quality and consistency
of asylum decisions.
54. Border procedures. The
problem with border procedures is that they might prevent an asylum
seeker from submitting his or her application. In the readmission
agreements between the European Union and Russia and Ukraine, respectively,
certain accelerated procedures are provided for in cases where irregular
migrants are apprehended closer than 30 kilometres on either side
of the border. In these cases, Russia and Ukraine, whether they
are the country of origin or just a country of transit, is obliged
to readmit the irregular migrant within two days of his or her apprehension.
Although this would theoretically give the person the possibility
to submit an application for asylum, in practice there might not
be enough time to do so. Even when the person is able to submit
a claim for asylum, the dangers of accelerated asylum procedures
also need to be taken into account. It is therefore particularly
important for states to keep under review the practice and procedures
at borders.
55. The rapporteur considers it particularly important to ensure
that strengthened border controls do not entail that asylum seekers
are denied access to the asylum system. For example, the European
Union readmission agreements with Russia and Ukraine should be implemented
in a generous manner and their implementation evaluated. It is equally
important that access to asylum systems are not impeded by interception
and migration control measures taken outside of Europe, especially
considering that asylum seekers often move alongside irregular migrants.
In this context, the UNHCR 10-point-plan (Refugee Protection and
Mixed Migration: A 10-Point Plan of Action) should be taken into
account. It offers suggestions to states on how to integrate refugee
protection considerations into migration and border control policies.
56. The rapporteur notes a good initiative which has been developed
in Hungary to ensure access to asylum procedures at the border.The
Hungarian Helsinki Committee, UNHCR and the national border agency/authority
have put in place a tripartite border monitoring agreement (memorandum
of understanding) which allows UNHCR and the Hungarian Helsinki
Committee the right to visit border areas and detention centres
to monitor access of asylum seekers to the territory and its asylum
procedure. This experiment has also been extended to other Central
European countries as well, and the rapporteur considers that it
represents good practice which could be replicated further.
4.3 Restrictive and
divergent interpretation of eligibility criteria
57. There are many areas where states adopt different
positions in relation to eligibility criteria and examples where
particular problems exist are highlighted below.
58. Distinction between persecution
by state and by non-state actors. One divergence in asylum
practice in Europe concerns whether persecution or human rights
violations by non-state actors may form the basis for a claim. The
European Court of Human Rights has established that the decisive
issue is not who is the perpetrator of the suspected ill-treatment
or persecution, but rather the actual availability of protection.
Note
59. The European Union Qualification Directive is supposed to
solve the issue of non-state actors in its Article 6. The provision
provides that actors of persecution or serious harm include non-state
actors, if it can be demonstrated that the state or organisations
controlling the State or a substantial part of the territory of
the State, including international organisations, are unable or
unwilling to provide protection against persecution or serious harm
inflicted by the non-state actor. UNHCR has for example found that
Article 6 has contributed to a change in the position taken by Germany
and led to an increase in recognition of Somali refugees in Germany.
60. The Qualification Directive, however, also introduces some
new uncertainty concerning actors of protection. Article 7 of the
directive sets out that protection can be provided not only by the
state, but also by “parties or organisations, including international
organisations, controlling the state or a substantial part of the territory
of the State”. The inclusion of the reference to non-state actors
as providers of protection is troublesome. UNHCR has commented that
only in the most exceptional cases should non-state actors be considered
providers of protection. Under the application of the Qualification
Directive in Austria, the United Nations Mission in Kosovo (UNMIK)
was considered to be an actor of protection.
Note In some instances, UNHCR or the Red
Cross have been deemed to provide protection. Other countries have
not considered these organisations to formally provide protection,
which might entail inconsistency in asylum decisions across Europe.
61. Internal protection alternative. Article
8 of the Qualification Directive provides that member states may determine
that an applicant is not in need of international protection if
in a part of his or her country of origin there is no well-founded
fear of being persecuted and no real risk of suffering serious harm
and the applicant can reasonably be expected to stay in that part
of the country. This may apply notwithstanding technical obstacles
to return to the country of origin. Regrettably, the provision falls
short of international standards as it fails to require that the
alternative location be “practically, safely and legally accessible”.
In Sweden, a committee of experts concluded that Article 8 of the
Qualification Directive was not reasonable and not in accordance
with Article 1A of the 1951 Geneva Convention, which led to the
provision not being implemented in Sweden. The European Court of
Human Rights has ruled that as regards some countries and situations,
the absence of an internal relocation alternative would result in
a violation of the Convention were a person to be returned.
Note
62. A UNHCR study identified a significant inconsistency in the
application of the criterion for internal protection alterative
in Chechen cases. German and Slovak authorities were found to frequently
motivate negative asylum decisions with reference to an internal
protection alternative, whereas French authorities did not. In particular,
a tendency was identified in the Slovak Republic to apply a generic
assessment of internal protection alternative to all Chechen applications,
rather than the individual assessment required by Article 4 of the
Qualification Directive. Overall, the various interpretations of
what is “reasonable”’ concerning internal protection alternative
are “vastly different”, according to UNHCR.
Note
63. Gender-related persecution.
The rapporteur is concerned that gender specific forms of persecution
are not always taken fully into account and handled in a systematic
fashion, affecting the quality and the consistency of asylum decisions.
It is therefore important that those involved in the asylum process
are fully informed and trained on gender issues.
64. UNHCR recommends that states promote an age, gender and diversity
sensitive approach in asylum procedures in order to ensure gender
equality and equal enjoyment of rights, regardless of age, gender
or background.
Note This would improve the restrictive
approach taken by states and the significant inconsistencies which
exist, within and as between states, not only in the recognition
rates for persons claiming gender-related persecution, but also
as regards unequal treatment and/or access to benefits. Clearly,
gender-related claims may be brought by either women or men on the
basis of particular types of persecution (including those based on
differing sexual orientation or sexual practices (claims involving
homosexuals, transsexuals or transvestites) or more commonly in
the case of women, domestic- or dowry-related violence or other
abuse. There is also wide divergence between benefits accessible
by persons, in non-registered homosexual partnerships or extended
families, for example.
65. Treatment given to family members: It
is clear that in the case of family asylum seekers, the factual
basis and mix may necessarily be more complex than in claims submitted
by individuals. This is due to the different rights and interests
claimed and/or at stake in the case of a family (e.g. as regards
the father, mother, children or even adult dependents). As an example,
in the case of young Tamils, the ill-treatment meted out to a member
of a single family can produce, as a by-product, a real risk of
ill-treatment for other members of the family. The lack of consistency
in this context signifies a real need for greater clarity both in
case law and in state practice.
66. Use of complementary protection. As
has been pointed out above in the section on statistics, there is
a great difference in the extent to which countries have opted for
granting protection in the form of refugee status or complementary
protection. Furthermore, the UNHCR has found that, for example,
Greece has systematically failed to carry out an assessment in respect
of complementary protection, and may be in breach of the European
Union Qualification Directive as a result.
Note In other countries, notably in Malta,
the authorities have to a great extent opted for granting complementary
protection rather than refugee status (see the Migration, Refugees
and Population Committee’s report on “Europe’s ‘boat-people’: mixed
migration flows by sea into southern Europe”,
Doc. 11688, rapporteur Mr Morten Østergaard, Denmark, ALDE). The consequences
for the asylum seeker, flowing from the protection granted, can
be important. In France, for example, refugee status provides the
person concerned with a ten-year residence permit, whereas complementary
protection entails only a one-year residence permit, which is, however,
renewed more or less automatically. Furthermore, access to social
and economic rights often vary considerably between the two forms
of protection.
67. Under Article 2(e) European Union Qualification Directive,
a person is eligible for subsidiary protection
Note where
s/he does not qualify as a refugee but substantial grounds have
been shown that s/he would face a real risk of suffering serious
harm as defined under Article 15. “Serious harm” under Article 15
(c) of the Directive consists of a “serious and individual threat
to a civilian's life or person by reason of indiscriminate violence
in situations of international or internal armed conflict.” The
meaning of Article 15(c) has been the subject of litigation in domestic
courts leading to very different outcomes and a number of references
to the European Court of Justice for clarification. The Grand Chamber
of the ECJ held that Article 15(c) is substantively different to
that of Article 3 ECHR and “the interpretation of which must, therefore,
be carried out independently although with due regard for fundamental
rights, as they are guaranteed under the ECHR.”
Note UNHCR has found
the said provision to be undermined by a highly restrictive interpretation
of the concept of “individual threat”, rendering the possibility
of subsidiary protection “illusory” in cases of flight from violent
conflict
Note.
68. Furthermore, the interpretation of the concept of “internal
armed conflict” has been found in general, by the UNHCR to be inconsistent
Note.
This concept had been interpreted differently in particular in Iraqi
cases. Whereas French asylum authorities considered the situation
in Iraq as amounting to an “internal armed conflict”, in Sweden
it was regarded as a “severe conflict”. In contrast, however, the
Swedish authorities viewed the situation in Chechnya as an “internal
armed conflict” which their Slovak counterparts did not.
69. In the view of the rapporteur, in creating common standards
for international refugee protection, complementary protection should
be further harmonised and work should not be guided by the “lowest
common denominator”. Council of Europe member states should be encouraged
to develop higher standards
of protection, based on their own domestic standards of human rights
or humanitarian impulse. This reflects the nature of the ECHR as
a pan-European minimum standard of human rights protection. Entitlements
of protection seekers who benefit from complementary protection
should be aligned with the protection standards applicable to those
granted refugee status.
4.4 Quality of evidence,
personal testimony and country of origin information
70. For a quality decision to be taken, it must rely
on quality evidence, from the applicant and other sources, the personal
testimony of the applicant (referred to above as an essential element
of access to the asylum process) and accurate and up-to-date country
of origin information.
71. It is in principle for the applicant to adduce evidence capable
of proving substantial reasons for believing that he or she would
be subjected to a real risk of ill-treatment.
Note However, the European Court of Human Rights
considers that there is a positive duty on the national authority,
if the need arises, to go beyond the evidence provided in the application
and to use a wide range of sources of up-to-date information in
order to make a proper assessment of the applicant’s case viewed
against a understanding of the situation in the receiving country.
Note Complete consistency
Note is not required
of an applicant and in the presentation of his or her evidence an
applicant should be given the benefit of the doubt and the opportunity
to provide satisfactory explanation if an inaccuracy or inconsistency
is alleged.
Note
72. Use of country of origin information is compulsory in asylum
determinations. This follows clearly from Article 4(3)(a) of the
Qualification Directive and from the case law of the European Court
of Human Rights.
Note The outcome of asylum procedures
are bound to be inconsistent and to lack in quality if the fundamental information
on which decisions are made differs within or between countries.
To improve consistency and quality of asylum decision making, national
asylum authorities need to co-operate closely with independent organisations
in order to assemble balanced country of origin information and,
where appropriate, country guidance notes. There is also a need
to share information between countries of asylum, including on case
law precedents. The Council of Europe should encourage member states
to engage in broadened co-operation on country of origin information,
case law precedents and where appropriate country guidance notes.
It can be noted that in the context of the second phase of the CEAS,
the European Commission is also working on producing common European
Union guidelines for the processing of country of origin information.
73. In the United Kingdom, in order to improve the quality of
the information considered in a given case, a number of steps are
taken. These include the preparation of Country of Origin Services
reports which are prepared by the Home Office and overseen by an
independent Advisory Panel including independent academics and members
of leading NGOs. Furthermore Operational Guidance Notes (OGNs) are
prepared. These can be valuable sources of information as long as
they are kept up to date and used with a certain amount of flexibility.
Furthermore, in the United Kingdom, the judicial decision makers
provide country guidance on what is happening in certain asylum
producing countries, highlighting certain decisions as authoritative,
and also a system for selecting cases which are to be reported to
make sure that the body of case law is more coherent, of higher
quality and in general more consistent.
74. The International Association of Refugee Law Judges (IARLJ)
has taken a number of important steps contributing to the improvement
of the quality of decisions and the quality of country of origin
information. One step has been the preparation of a checklist of
judicial criteria for assessing country of origin information. Another
step has been to look into the issue of natural justice and equality
of arms between asylum seekers and government agencies, which often
have the facilities and resource to access a wide range of sources
of country of origin information
75. The rapporteur considers that the Council of Europe should
encourage member states to engage in broadened co-operation on country
of origin information. An important step towards the use of coherent
and reliable country of origin information is the setting up of
a common database for Council of Europe member states. The database
must be updated regularly by experts. Measures should be taken in
order for it to be accessible in a sufficient number of languages.
4.5 Evidential assessment
76. An assessment of evidence
Note is
crucial, in particular as in many cases decisions are made on the
basis of credibility of the applicant. It is therefore essential
that reasoned decisions on the facts and the law are given.
77. Practice on this differs as between member states of the Council
of Europe. Practice also differs between first instance decisions
and decisions on appeal. In the United Kingdom, for example, where
the procedure is adversarial in nature, there tends to be reasoning
based on the parties submissions. In France and other countries
where the proceedings are inquisitorial, decisions tend to be shorter
and less reasoned. It is essential that reasoned decisions on facts
and law are given on all international protection decisions and
that further work is carried out on this issue, including at a European
level, to harmonise this matter.
78. One issue raised with the rapporteur on a number of occasions
was the “culture of disbelief” and the issue of “burn-out”
Note amongst those dealing
with asylum claims. In view of the very large number of cases where
credibility of the applicants’ claim has a decisive role in the
outcome of the claim, it is absolutely essential that any culture
of disbelief is tackled and decision makers suffering from “burn-out”
are supported in an appropriate manner. In addition, it is important
to investigate the institutional incentives at play within asylum adjudication
systems, which may encourage or reward decision makers to reach
hasty negative decisions.
4.6 Training of those
involved in taking decisions in asylum cases
79. It goes without saying that quality and consistency
of asylum decisions are closely linked to the competence of the
people involved in taking the decisions. The level of competence
depends to a large extent on the training offered to them and the
support given to them in their work, including in dealing with situations of
“burn-out”. The UNHCR has put forward its Quality Initiative, piloted
in the United Kingdom, containing proposals on what training should
be provided to civil servants involved in deciding on asylum applications.
The Quality Initiative is described below in Section VII.
80. It should however be emphasised that all decision makers need
training, including judges. This should include, inter alia, training in international
refugee law, human rights principles, as well as training in cross-cultural
communication skills and gender and age sensitivity. Furthermore,
training should also be provided for those interviewing children.
81. In the United Kingdom judges are subject to periodic appraisal
schemes and it is compulsory for judges to attend periodic training
conferences and workshops. The question is, however, not only of
the qualification level of decision makers, but also of lawyers
who represent asylum seekers. They should also receive appropriate
training.
82. At an international level the rapporteur notes that the International
Association of Refugee Law Judges (IARLJ) is involved in training
of judges, and considers it important that this initiative is fully
supported.
83. It is, however, not only a question of training, it is also
a question of selection, making sure that the right persons are
selected at the outset to carry out refugee status determination.
In this respect it is important that persons are recruited at an
appropriate level to carry out this work.
84. Peer review and audit. The
rapporteur notes the importance of peer guidance and support. Mechanisms for
review, including by peers need to be put in place, both for positive
and for negative decisions.
85. There is also a need for ongoing audit of the work of those
taking asylum decisions and the rapporteur had the benefit of noting
the good practice in the United Kingdomwhere an audit team was established
back in 2004. This “good practice” should be adopted in all member
states.
4.7 Political pressure
86. What is the relation between the work of the judiciary
or administrative authorities in terms of deciding on asylum applications,
on the one hand, and the agenda of the government and the legislative
assemblies on the other? Every country has the prerogative under
international law to control its borders and to decide who shall
be admitted into the country and who shall be granted residence
permit. Political decision makers might want to use this prerogative
to control the influx of aliens, with regard to, for example, the
economic situation in the country. The ECHR contains restrictions
and derogations in order that a fair balance may be struck, in certain
cases, between the interest of the state and the individual. However,
there can be no such restrictions or balancing as regards certain
guarantees, including absolute rights (e.g. Article 3 ECHR)
Note and the principle of
non-refoulement. It is clear that
law and not political dictates, should govern the asylum procedure,
and that care should be taken to ensure that the political machine,
together with its use of press and publicity, are not used in such
a way as to influence decisions on asylum. The spirit of the ECHR
is conceived to protect the individual from the unbridled “interest”
of the executive branch or sometimes even of the legislative branch
of the state.
Note
5 Role of Office
of the United Nations High Commissioner for Refugees
87. Article 35 of the 1951 Geneva Convention provides
for UNHCR to monitor the implementation of the Convention. The agency
is mandated to lead and co-ordinate international action to protect
refugees and resolve refugee problems worldwide. Its primary purpose
is to safeguard the rights and well-being of asylum seekers, refugees,
Internally Displaced Persons and stateless persons. It seeks to
ensure that everyone fleeing persecution can exercise the right
to seek asylum and find safe refuge in another state, with the option to
return home voluntarily, integrate locally or to resettle in a third
country
88. Article 21 of the above-mentioned European Union Directive
on Minimum Standards for Procedures also confers a role on the UNHCR.
Member states of the Union are to allow the UNHCR to have access
to applicants for asylum, to have access to information on individual
applications for asylum and the decisions taken and to present its
views to any competent authorities regarding individual applications
for asylum at any stage of the procedure.
89. UNHCR has also been working for better quality and consistency
of asylum decisions in general. In this quest, the UNHCR obviously
covers the whole of Europe, not only those countries that are members
of the European Union. The UNHCR has conducted studies in respect
of the quality and consistency of asylum decisions. Mentioned earlier
in this report is the study on the implementation of the Qualification
Directive, and below is an account of the Quality Initiative in
the United Kingdom.
90. Other important documents are the UNHCR’s Handbook on Procedures
and Criteria for Determining Refugee Status and the Guidelines on
International Protection.
Note The UNHCR document
“Refugee Protection and Mixed Migration: A 10-Point Plan of Action”
offers suggestions to states on how to integrate refugee protection
considerations into migration and border control policies. UNHCR
is present in almost all countries of Europe and has an oversight
of the quality and consistency of asylum decisions. It is particularly
important that UNHCR ensures that statistics are collected and that
concerns are registered affecting the quality and consistency of
asylum decisions and, where necessary, that alarm bells are rung.
Furthermore, UNHCR has to be able to intervene in order to improve
the situation wherever necessary. In this respect the United Kingdom’s
Quality Initiative is something that could be replicated in more
countries and consideration should be given to whether UNHCR should
carry out a more formal monitoring and reporting exercise on the
quality and consistency of asylum decisions, or whether in Europe
such a task could also be carried out by another organisation, such
as the Council of Europe.
6 Role of the European
Court of Human Rights
6.1 Application of
the European Convention on Human Rights in asylum cases
91. Many complaints are lodged each year before the European
Court of Human Rights by asylum seekers whose applications have
been rejected by a member state and who are threatened by removal.
Whenever there are substantial grounds to believe that, upon return,
an applicant faces a real risk of being subjected to treatment contrary
to Article 3, the respondent state is obliged to halt the expulsion.
Article 3 of the Convention contains an absolute right not to be
exposed to torture or inhuman or degrading treatment or punishment. Persecution
by non-state actors can also give rise to an issue under Article
3. If the country to which the applicant is about to be deported
is a member state of the Council of Europe, the Court will either
declare the case inadmissible or voluntarily extend the application
against the receiving member state.
Note
92. A risk of breach of other Convention articles, in particular,
Article 2 and Article 6 upon return following expulsion might also
exceptionally give rise to an issue under the Convention. A complaint
under Article 6 (the right to a fair trial) may be successful in
cases where the asylum seeker risks suffering a flagrant denial
of a fair trial in the country to which he or she is expelled.
Note Article 2 (the right to
life) is not absolute and does not contain a prohibition against
the death-penalty (although Protocols Nos 6 and 13 to the Convention
do). Expulsion to a country in which the applicants risks the death-penalty
is thus not per se at present forbidden under the Convention however
the key test is whether or not the individual would face a
real risk of death or prohibited
treatment.
Note Nevertheless, the Court has
precluded expulsion in cases where the applicant risks facing the
death-penalty following a flagrantly unfair trial in the country
of destination, or where he or she could be exposed to the so-called
death row phenomenon which is deemed to violate Article 3 of the
Convention. Article 4 may be relied on to prevent expulsion where
the ill-treatment alleged arises from situations of sexual exploitation.
Note The
collective expulsion of aliens is also prohibited.
Note
93. The right to family and private life under Article 8 should
be afforded to asylum seekers and their family members throughout
an asylum procedure, as should family unity.
Note Article
8 can be invoked in expulsion cases – in its family life and/or
private life aspects. For example, in cases where the expulsion
measure would result in an unjustified break up of family life,
or in cases, under the private life rubric, where an individual alleges
ill-treatment of the kind not meeting the threshold required by
Article 3 (where an individual alleges ill-treatment on return,
including on the basis of sexual orientation).
Note Article 8 may also be invoked
in situations not involving expulsion, e.g. in the context of family
reunification, or those concerning children (where their best interests
are paramount)
Note and
access to social and medical care.
Note It is important to stress
that the concept of “family life” must be interpreted broadly to
protect relationships beyond mere blood ties to those in a de facto or
de jure family relationship where there is mutual enjoyment of each
others’ company, e.g. those in same-sex partnerships or those with
adopted children.
Note Equally, “private
life” protects broad aspects of one’s personal sphere.
Note
94. Furthermore, Article 1 of Protocol No. 7 to the European Convention
is of importance. This provision sets out certain procedural guarantees
for aliens lawfully resident in the territory of a state, including
asylum seekers, since Article 6 of the Convention (the right to
fair trial) is normally not applicable to asylum proceedings.
6.2 Interim measures
– Rule 39
95. In recent years the Court has been requested with
increasing frequency to apply Rule 39 of the Rules of Court in order
to halt expulsions of applicants who are about to be deported to
a country in which they face a risk of treatment contrary to Article
3. Although Rule 39 is not part of the Convention as such, the Court
has decided that member states are obliged to implement Rule 39
decisions. Member states have normally abided by these interim measures.
In some cases, however, expulsion have been enforced despite the
Court’s decision under Rule 39.
Note
6.3 Implications as
to the quality and consistency of asylum decisions
96. The jurisprudence of the European Court of Human
Rights sets standards for member states of the Council of Europe.
The Court has provided interpretation of certain concepts in the
field of asylum law and it has defined the minimum level of protection
that asylum seekers can expect. It has contributed significantly
to strengthening the security of the asylum procedure and thus the
quality of decisions and the dignity of asylum seekers. For example,
it has decided that protection under Article 3 of the Convention
shall be “practical and effective”. The Court’s pan-European influence
contributes to harmonising the law and practice on asylum, and therefore
to the consistency of asylum decisions in member states. The 1951
Geneva Convention lacks a body that enforces its implementation.
In the European context, the European Court has de facto provided such enforcement.
97. The case law under Articles 3 and 13 of the Convention, in
particular, sets out clear requirements for a full and fair asylum
process.
Note From
it, one can identify the following practices as incompatible with
the “practical and effective” nature of the Convention guarantees:
97.1 Time-limits:
limits that preclude the applicant from making a full claim and
procedural rules which prevent a proper assessment of the evidence,
including the consideration of evidence submitted after the initial
application interview, are problematic.
97.2 Faulty credibility assessments:
while it is for the applicant to provide evidence to support his claim,
failure to provide supporting evidence, or inconsistencies between
different accounts, should not automatically undermine the credibility
of the applicant. Too hasty findings of non-credibility undermine the
integrity of the asylum process
Note.
97.3 Non-suspensive appeals:
in
Jabari,
Conka,
Gebremedhin and
Sultani, the European Court of Human
Rights emphasised that Article 13 of the Convention requires a remedy
with automatic suspensive effect.
Note
97.4 Weak standards of appellate
review: Article 13 of the Convention (concerning effective
judicial protection) requires an independent and rigorous scrutiny
of asylum decisions, in particular to ensure that Article 3 of the
ECHR is respected.
98. Furthermore, the rapporteur recalls that the European Court
of Human Rights requires, in all cases where there is an arguable
case that removal will violate the Convention, a full consideration
of the facts at the time removal is contemplated. This requires
the admission of new evidence in a full
ex
nunc (current) assessment, including gathering information
exproprio
motu (of its own accord).
Note
99. Two recent cases, which might serve as examples of how the
Court sets standards in the field of asylum law are
Salah Sheekh v. the Netherlands and
Jabari v. Turkey.Note In the
first case, the Court considered that, given the absolute nature
of the protection afforded by Article 3, the assessment made by
the authorities of an expelling State must be adequate and sufficiently
supported by materials from reliable and objective sources. The
information also has to be up-to-date, as the situation in a country
of destination may change in the course of time, requiring a fresh
assessment of evidence at the time of expulsion.
100. The second case is of particular relevance to the issue of
accelerated procedures. In that case, Turkey had refused to grant
a temporary residence permit to the applicant due to her failure
to comply with a five-day requirement to submit an asylum claim.
The national court had failed to examine the substantive aspect
of her claim. The Court held that the “automatic and mechanical
application of such a short time-limit for submitting an asylum
claim must be considered at variance with the protection of the
fundamental value embodied in Article 3”. The Court found a breach
of Article 3. In the case of
Bahaddar
v. the NetherlandsNote,
the Court noted that time limits must not be so short, or applied
so inflexibly, as to deny an asylum applicant a realistic opportunity
to prove his or her claim. The Court also reiterated that scrutiny
of the substantive claim be “independent and rigorous”.
7 Good practice in
improving the quality and consistency of asylum decisions
7.1 UNHCR Quality Initiative
in the United Kingdom
101. In 2005 UNHCR started its Quality Initiative (QI),
entailing a review of the United Kingdom Home Office Refugee Status
Determination Procedures. Regular reports have been made public
and the review is onward going. The QI Project is based on the supervisory
role of UNHCR under the 1951 Refugee Convention. Its aim is to assist
the Home Office in the refugee determination process, through monitoring
of procedures and the application of the refugee criteria. Ssome
of the key findings of the review throw light on some of the priorities that
other member states should also follow in reviewing their approach
to refugee status determination procedures. In particular, the rapporteur
wishes to highlight the following conclusions.
102. One of the main proposals from the UNHCR in the Quality Initiative
was to promote the “frontloading of resources”. This means concentrating
resources as early as possible in the asylum procedure so that first decisions,
so far as possible, are reliable. This saves time and money, for
the state as well as for the individual asylum seeker who does not
have to go through the same extended waiting period and uncertainty.
103. In the review, UNHCR took the view that a key to improving
quality in refugee status determination procedures was the recruitment
and retention of highly-qualified caseworkers. UNHCR recommended
that the minimum qualification for an asylum caseworker should be
a university degree or equivalent qualification together with specific
asylum competencies. Improved training of caseworkers should enhance
the quality of decisions and ensure their consistency. Training
should help to increase the retention of expert decision makers.
Caseworkers should receive in-depth training on the 1951 Convention
and the European Convention on Human Rights to improve their ability
to identify and focus their interviews on salient aspects.
104. Accreditation was found to be a key to overall improvement
in quality. Every person involved in first instance decision making,
including internal candidates, should be accredited by a scheme
that is designed to test the competencies, knowledge, skills and
analytical abilities to an appropriate level. Identification and management
of stress was essential for the retention of good quality asylum
caseworkers. Ignoring stress was identified as leading to staff
burn-out and high staff turnover. Case production targets should
be kept at reasonable levels and be flexible to allow for careful
scrutiny of each and every case.
105. Good quality country of origin information, together with
the knowledge of how to apply such information to the claim, were
considered keys to good quality decision making. Respected country
research from sources such as UNHCR (position papers), Amnesty International
and Human Rights Watch should be made available unedited on the
knowledge database of the decision-making authority. The need for
detailed and up-to-date country of origin information was emphasised.
Caseworkers should be equipped with the necessary skills to conduct
their own country research. They should be encouraged to consult
a variety of sources and assess their reliability and relevance
to the applicant’s claim. They should be trained to source all references
to country of origin information. It should be ensured that specific
country of origin information and guidance are made available on
countries with poor human rights records, regardless of the number
of asylum applications received from such countries.
106. Caseworkers should be expected to spend a reasonable amount
of time preparing for an asylum interview, including conducting
appropriate research. As much time as necessary should be spent
interviewing asylum seekers. Whenever practicable, the same caseworker
who conducted the interview should draft the asylum decision. All
substantive asylum interviews should be recorded. Gender-sensitive
interviewing and interpreting should be automatic and introduced
with immediate effect. Where an interview has been arranged that
is not gender appropriate for whatever reason, a mechanism should
be in place to allow for the postponement of the interview.
107. Guidance on working with interpreters should be incorporated
into existing interviewing training. Caseworkers should be reminded
of and should make use of the option of a further interview of either
the applicant or his/her family members where this is necessary.
Measures should be in place to ensure consistency in interviewing
practice and procedures across the Home Office and to share best
practice from other parts of the Home Office. Applicants should
have access to information about the asylum and interviewing process,
their rights and obligations. Such information could take the form
of leaflets provided in the appropriate languages being prominently
displayed in the waiting area. Information on the asylum process beyond
the complaints procedure should be provided to applicants in a number
of common languages as early as possible in the process.
108. The rapporteur notes the good practice coming from the Quality
Initiative. In the light of the experience in the United Kingdom
he considers it worthwhile, highlighting in particular that in a
number of countries unrealistic targets and caseloads are given
to case-workers. There needs to be flexibility and case-workers should
not have to sacrifice quality for statistical targets. The rapporteur
is also concerned about the impact of heavy backlogs of cases and
lengthy delays in reaching decisions. It is clear that the quality
of decisions become even more difficult to guarantee after lengthy
delays and the fairness of a decision can be impugned where decisions
are taken sometimes as long as five or more years after the application
is lodged.
109. One particularly positive practice in the United Kingdom is
that steps have been taken to ensure that a single caseworker works
on a case from beginning to end. This helps to create a culture
of respect and is important for the asylum seeker. This practice
should be replicated in other countries.
110. As mentioned earlier in the report, in some Council of Europe
member states up to 50% of first instance decisions are overturned
on appeal, which indicates that many first instance decisions are
unreliable. One of the main proposals from the UNHCR in the Quality
Initiative has been to promote the “frontloading of resources”.
This means that resources are concentrated as early as possible
in the asylum procedure so that first decisions, so far as possible,
are reliable. The rapporteur considers this to be one of the essential proposals
in the Quality Initiative which should be taken into account by
other states. A frontloaded system would save time and money for
the state, as well as for the individual asylum seeker, who will
not have to go through the same extended waiting period and uncertainty.
7.2 The UNHCR Asylum
Systems Quality and Assurance and Evaluation Mechanism Project in the
Central Europe sub-region (ASQAEM)
111. The aim of the project, which is run by the UNHCR
and implemented in the Slovak Republic, is to support in a “harmonised
and transnational manner” the continuous development and enhancement
of fair and efficient asylum procedures that are based on the full
and inclusive application of the 1951 Geneva Convention. This should
be accomplished by promoting adherence to established common international
protection standards in the European Union, such as the Qualification
Directive and the Procedures Directive. These are said to provide
some clarity and useful guidance for the interpretation of international
protection instruments, in particular the Geneva Convention.
112. The project focuses on how the Slovak Republic is undertaking
the assessment of claims for international protection after having
transposed community legislation. Following a process of independent
and objective evaluation, specific actions will be designed to improve
the quality, fairness and efficiency of first and second instance
decisions in the Slovak asylum system. The project will also aim
at advancing a harmonised common European asylum system by developing
partnership exchanges between systems in different countries.
113. In April 2009, UNHCR submitted a new proposal to the European
Commission for a project funded by the European Refugee Fund entitled
“Further Developing Asylum Quality in the European Union – Establishing New
Quality Assurance Mechanisms in Southern Europe and Consolidating
National Quality Mechanisms in Central and Eastern Europe”. This
project will build on the previous ASQAEM project. This second phase
will undertake targeted monitoring of adjudicator preparation, interviews
and written decisions, consolidate newly-established internal review
mechanisms and develop a methodology to guide the future establishment
of such mechanisms in other European Union member states.
114. The project aims "to examine, assess and develop quality assurance
systems in the asylum procedures of ten member states: Bulgaria,
Cyprus, Greece, Hungary, Italy, Poland, Portugal, Romania, Slovakia
and Slovenia. It will involve the assistance of the asylum authorities
of Austria, Germany and the United Kingdom, who will provide good
practice advice. The overarching objective is to improve the quality
of asylum procedures by building the capacity and expertise of the
asylum authorities responsible for the processing, examination and
taking of decisions on asylum applications at the first and second
instance, and to ensure the effective and sustainable functioning
of Quality Assessment Units (QAUs).
7.3 The European Asylum
Curriculum (EAC)
115. The EAC is a European Union-funded initiative by
the member states aiming to enhance the capacity and quality of
the European asylum process as well as to strengthen practical co-operation
among the European asylum systems. The aim is to create a European
asylum curriculum for common vocational training of employees of
the immigration services in the European Union and to creating a
complete and harmonised learning tool for case workers. In view
of the earlier comments on the importance of training, it is clear
that some form of common asylum curriculum is essential if those
involved in the asylum process are expected to provide quality and
consistent decisions across Europe. This curriculum should take
into account best practices of member states, relevant principles
of refugee law, case law of the European Court of Human Rights and
other relevant Council of Europe standards.
8 Conclusions
116. The rapporteur has indicated in his report that there
remain many concerns over the quality and consistency of asylum
decisions. These have been exposed starkly in some of the statistics
given.
117. He has highlighted seven main reasons for problems in the
quality and consistency of asylum decisions, namely:
a difficulties in accessing the asylum
process;
b procedural rules that undermine the assessment of the
facts and hinder the applicant presenting his or her case;
c restrictive and divergent interpretation of eligibility
criteria;
d lack of procedural safeguards in the asylum proceedings,
including during the appeal stage;
e lack of objective and reliable country of origin information;
f lack of training of those involved in taking decisions
in asylum cases;
g political pressure being brought to bear on the asylum
process including by politicians and the media;
118. The draft resolution and draft recommendation include the
steps that need to be taken by member states and by the Committee
of Ministers of the Council of Europe to improve the quality and
consistency of asylum decisions.
119. The rapporteur wishes to highlight that the Council of Europe’s
primary aim is to create a common democratic and legal area throughout
the whole of Europe, ensuring respect for its fundamental values:
human rights, democracy and the rule of law. As the Council of Europe
has the principal responsibility for ensuring that fundamental rights
are respected, protected and promoted across Europe, it is incumbent
on it to ensure that Europe’s asylum systems fully respect and protect
fundamental rights, in keeping with the ECHR, the Refugee Convention
and other international instruments. In particular, the Council
of Europe must ensure that where the European Union standards are
dubious, that they do not provide a pretext for Council of Europe
states to violate fundamental rights. As regards eligibility criteria
in particular, the case law of the European Court of Human Rights
demands that states engage in an appropriate risk assessment, irrespective
of whether the risks are posed by state or non-state actors.
120. Finally, he would like to highlight the now pressing need
for the Committee of Ministers of the Council of Europe to establish
a new inter-governmental Committee with a permanent mandate to replace
the work formerly carried out by the Ad hoc Committee of experts
on the legal aspects of territorial asylum, refugees and stateless
persons (CAHAR). This Committee had previously produced quality
work, for example the Twenty Guidelines on Forced Return which have
become an important European reference point. It is now essential to
have a specialised expert committee to carry on this work and tackle
further the asylum issues, including those raised in this report.
***
Reporting committee: Committee
on Migration, Refugees and Population
Reference to Committee: Doc. 11103, Reference No. 3305 of 22 January 2007
Draft resolution and draft recommendation unanimouslyadopted by the Committee on 25 June
2009
Members of the Committee: Mrs
Corien W.A. Jonker (Chairperson), Mr Hakki Keskin (1st Vice-Chairperson), Mr
Doug Henderson, (2nd Vice-Chairperson) (alternate: Mr Bill Etherington), Mr Pedro Agramunt, (3rd Vice-Chairperson),
Mrs Tina Acketoft, Mr Francis Agius, Mr Ioannis Banias, Mr Alexander van der Bellen, Mr Márton Braun,
Mr André Bugnon, Mr Sergej Chelemendik, Mr Vannino Chiti, Mr Christopher
Chope, Mr Boriss Cilevičs,
Mr Titus Corlăţean, Mr Telmo Correia, Mrs Claire Curtis-Thomas,
Mr David Darchiashvili (alternate: Mr Guiorgui Kandelaki), Mr Arcadio Díaz Tejera, Mr Mitko Dimitrov,
Mr Vangjel Dule, Mr Tuur Elzinga, Mr Valeriy Fedorov,
Mr Oleksandr Feldman, Mr Relu Fenechiu, Mrs Doris Fiala, Mr Bernard
Fournier, Mr Aristophanes Georgiou, Mr Paul Giacobbi, Mrs Gunn Karin
Gjul, Mrs Angelika Graf, Mr John Greenway (alternate: Mr Michael Hancock), Mr Andrzej Grzyb (alternate:
Mr Bronisław Korfanty), Mr
Michael Hagberg, Mrs Gultakin Hajibayli, Mr Davit Harutyunyan,
Mr Jürgen Herrmann, Mr Bernd Heynemann, Mr Jean Huss, Mr Tadeusz
Iwiński, Mr Zmago Jelinčič Plemeniti,
Mr Mustafa Jemiliev, Mr Tomáš Jirsa,
Mr Reijo Kallio, Mr Ruslan
Kondratov (alternate: Mr Oleg Panteleev),
Mr Franz Eduard Kühnel, Mr
Andros Kyprianou, Mr Geert Lambert, Mr Pavel Lebeda, Mr Younal Loutfi,
Mr Arminas Lydeka, Mr Andrija Mandić, Mr Jean-Pierre Masseret (alternate:
Mr Jean-Claude Frécon), Mr
Slavko Matić, Mrs Nursuna Memecan,
Mrs Ana Catarina Mendonça, Mr Gebhard Negele, Mr Hryhoriy Omelchenko, Ms Steinunn Valdís
Óskarsdóttir, Mr Alexey Ostrovsky, Mr Grigore Petrenco, Mr Jørgen Poulsen, Mr Cezar Florin Preda
(alternate: Mr Iosif Veniamin Blaga),
Mr Milorad Pupovac, Mrs Mailis Reps, Mr Gonzalo Robles, Mr Branko
Ružić,Mr Giacomo Santini, Mr André Schneider, Mr Samad Seyidov, Mrs
Miet Smet, Mr Dimitrios Stamatis, Mr Florenzo Stolfi, Mr Giacomo
Stucchi, Mr László Szakács, Mr Dragan Todorović, Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Michał
Wojtczak, Mr Marco Zacchera, Mr Yury Zelenskiy, Mr Andrej Zernovski.
N.B.: The names of the members who took part in the meeting
are printed in bold
Secretariat of the Committee: Mr Neville, Mrs Odrats, Mr Ekström,
Ms Meredith
