Consequently, the Parliamentary Assembly invites the governments of the member states of the Council of Europe:
8.1 as regards the general use of accelerated procedures, to:
8.1.1 ensure a balance between the need to process asylum applications in a rapid and efficient manner and the need to ensure there is no compromise over international obligations including under the 1951 Refugee Convention and its 1967 Protocol and the 1950 European Convention on Human Rights and its Protocols;
8.1.2 ensure that the principle of non-refoulement, which is the cornerstone of international refugee protection, is ensured, namely that “no Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” (Article 33 of the 1951 Refugee Convention);
8.1.3 limit the use of accelerated procedures to cases which are clearly well founded, allowing a swift positive decision on the asylum application or those cases which are clearly abusive or manifestly unfounded;
8.1.4 take fully into account that acceleration of manifestly unfounded or clearly abusive cases could, in certain circumstances, most effectively occur at the appeal stage, through shorter but reasonable time limits for submitting an appeal;
8.1.5 apply minimum procedural guarantees equally for all asylum applications;
8.1.6 ensure the quality of decision making at first instance as one of the best ways of speeding up the asylum process;
8.2 as regards the concept of safe country of origin, to:
8.2.1 ensure that clear and demonstrable safeguards are adopted to guarantee an effective access to an asylum determination procedure which can lead to the granting of refugee status or other forms of international protection;
8.2.2 ensure that the burden of proof does not switch to the applicant to prove that a country is unsafe and that the applicant has an effective opportunity to rebut the presumption of safety;
8.2.3 take great caution in adopting, in the context of the proposal for a European Council directive, a list of safe countries of origin which may lead to a lowering of standards of protection for asylum seekers from the countries concerned and could undermine the underlying concept of refugee protection, which is based on the individual situation of the asylum seeker rather than a general analysis and judgment on the country;
8.2.4 ensure adequate safeguards are in place when designating a part of a country as safe, to ensure that this provides a reasonable flight alternative;
8.2.5 ensure that the use of the concept of safe country of origin should be kept to a minimum;
8.3 as regards the concept of safe third country, including the concept of “super safe third country”, to:
8.3.1 take note that the European Court of Human Rights has made it clear in the case of T.I. v. the United Kingdom, admissibility decision of 7 March 2000, application No. 43844/98, that the application of the concept of a safe third country does not release a country from its duties under Article 3 in relation to freedom from torture, inhuman or degrading treatment or punishment even under the Dublin Convention concerning the state responsible for examining asylum applications in one of the member states of the European Union;
8.3.2 ensure that the use of this concept is kept to a minimum and that each individual claim is examined with the following safeguards, thus building on Recommendation No. R (97) 22 of the Committee of Ministers to member states containing guidelines on the application of the safe third country concept:
8.3.3 the ratification and implementation by the third country of the 1951 Refugee Convention and other relevant international human rights treaties, including, for European states, the European Convention on Human Rights;
8.3.4 the existence of an effective asylum procedure in law and in practice in the third country;
8.3.5 genuine and close links between the applicant and the third country;
8.3.6 the express agreement of the third country to accept the applicant and to provide a full and fair determination procedure and protection from refoulement;
8.3.7 the burden of proof regarding the safety of a third country for an individual asylum seeker should be on the country of asylum and there should be the possibility for the asylum seeker to rebut the presumption of safety;
8.3.8 the exclusion of vulnerable persons, including separated children and persons suffering from trauma as a result of torture or other ill-treatment, including sexual and gender-based violence, from the application of the safe third country concept;
8.4 as regards border applicants, to:
8.4.1 ensure, in accordance with the principle of non-discrimination, that all asylum seekers are registered at the border and given the possibility of lodging a claim for refugee status;
8.4.2 ensure that all asylum seekers, whether at the border or inside the country, benefit from the same principles and guarantees in terms of their request for refugee status;
8.4.3 ensure adoption of clear and binding guidelines on treatment of asylum seekers at border points, in accordance with international human rights and refugee law and standards;
8.5 as regards the right of appeal with suspensive effect: to ensure that the right to an effective remedy under Article 13 of the European Convention on Human Rights is respected, including the right to lodge an appeal against a negative decision and the right to suspend the execution of measures until the national authorities have examined their compatibility with the European Convention on Human Rights;
8.6 as regards applicants who fail to present any documents or who present forged documents: to ensure that the lack of documentation or the use of forged documentation does not, in itself, make a claim fraudulent or bring about a rejection of the claim;
8.7 as regards time limits: to refrain from automatic and mechanical application of short time limits to lodge an application, taking into account the findings of the European Court of Human Rights in the case of Jabari v. Turkey, judgment of 11 July 2000, application No. 40035/98, in which it was held that the automatic and mechanical application of a short time limit of five days for submitting an asylum application was at variance with the fundamental value embodied in Article 3 of the Convention;
8.8 as regards the duration of the procedure: to ensure that speed is not given priority over fairness, and that a reasonable time frame is established that guarantees access to essential procedural safeguards;
8.9 as regards the use of accelerated procedures for applicants representing a danger to national security or to public order, or where consideration is given to the application of the exclusion clauses under Article 1.F of the Refugee Convention: to ensure that such cases are exempted from accelerated procedures, and to ensure access to procedural guarantees taking due note of the Guidelines on human rights and the fight against terrorism adopted by the Committee of Ministers of the Council of Europe on 11 July 2002, as well as Recommendation Rec(2005)6 of the Committee of Ministers to member states on exclusion from refugee status in the context of Article 1.F of the Convention relating to the Status of Refugees of 28 July 1951.8.10. as regards the individual determination and interview of all asylum
8.10 as regards the individual determination and interview of all asylum seekers, to:
8.10.1 respect the well-established principle that asylum seekers have the right to an individual determination of refugee status;
8.11 ensure the right of all asylum seekers to a personal interview in a language they understand, together with the possibility of free legal aid at the first instance hearing and throughout the appeal process;
8.12 as regards exemptions from accelerated procedures: to ensure that certain categories of persons be excluded from accelerated procedures due to their vulnerability and the complexity of their cases, namely separated children/unaccompanied minors, victims of torture and sexual violence and trafficking, and also cases raising issues under the exclusion clauses of the 1951 Refugee Convention;
8.13 as regards detention:
8.14 to ensure that in general asylum seekers are not detained. Detention should be an exceptional measure to be implemented only for the shortest of periods;
8.15 if asylum seekers are to be detained, to ensure that they are kept apart from those facing criminal conviction or having been convicted of criminal offences; furthermore, access to effective legal assistance at all stages of the procedure and access to the services of competent and qualified interpreters should be systematically granted;
8.16 to ensure that grounds for detention are limited and exhaustively listed with appropriate safeguards, including those under Article 5 of the European Convention on Human Rights;
8.17 to allow the monitoring of places of detention, including international transit zones, by independent organisations;
8.18 as regards social conditions, to provide adequate social assistance and medical assistance for asylum seekers at all stages of their claim, including during the appeal stage;
8.19 as regards the decision-making process, to ensure that all officials dealing with asylum seekers receive relevant training and access to sources of information and research in order to carry out their work in a gender- and age-sensitive manner and with due consideration to the particular situation of victims of torture and ill-treatment, including victims of sexual or other forms of gender-based violence;
8.20 as regards the UNHCR’s role, to facilitate its monitoring and capacity-building activities with respect to the asylum procedure in general, and the accelerated asylum procedures in particular, and to ensure access by UNHCR to key areas, including border areas.
8.21 The Assembly also invites the Council of the European Union to take into account the abovementioned concerns in relation to the use of accelerated procedures when discussing further the adoption of an amended proposal for a Council directive on minimum standards on procedures in member states for granting and withdrawing refugee status. The Assembly also invites the Council of the European Union to take into account the relevant comments and criticisms raised by the European Parliament, the UNHCR and NGOs in relation to the proposal for a Council directive.
