The EU Procedures Directive: UNHCR’s view, First experiences with the transposition of the Directive

Introduction

The mandate of the United Nations High Commissioner for Refugees (UNHCR) is to provide international protection and to find durable solutions for refugee problems and situations worldwide. The primary objective of UNHCR is to safeguard the rights and well-being of refugees through a close co-operation with responsible Governments and other stakeholders, such as NGOs, civil society and academia.

In Europe we discharge this mandate function through a number of regional offices, such as the one in Budapest, each overseeing the asylum processes of several countries in their respective regions. Other regional offices are located in Brussels, Rome, Berlin, Stockholm and Kiev. In addition to the countries currently covered by UNHCR Budapest, i.e. Hungary, Poland, Slovakia and Slovenia, the Regional Representation, from 1 January 2008, will also be responsible for Romania and Bulgaria.

The common goals and objectives of the regional office in Hungary are fourfold: (1) Promote and ensure effective access to the territory and asylum procedures, (2) Promote and support reception conditions in line with international standards, (3) Promote and support fair and efficient asylum procedures and (4) Promote and support the implementation of durable solutions, especially integration.

Legislative Harmonization

The European harmonization of asylum systems and the process of the intended establishment of a “Common European Asylum System (CEAS)“ obviously had – and still has - a tremendous impact on the protection situation of persons of concern to UNHCR in Europe and, as such, is closely followed by the office under its mandate responsibility, in particular under Art. 35 of the 1951 Geneva Convention.

In 1999, the European Union embarked on an ambitious and challenging program of legislative harmonization in the complex and sensitive area of asylum and refugee protection. The Member States agreed to adopt a set of legal measures on asylum, in accordance with the 1951 Geneva Convention and the Protocol of 31 January 1967 on the status of refugees and other relevant treaties.1 These measures aimed to set common minimum standards on defined subjects relating to asylum, namely allocating responsibility for claims among States; temporary protection; reception conditions for asylum seekers; qualification for international protection and asylum procedures.

In the Tampere Conclusions, adopted shortly after the Amsterdam Treaty obligations took effect in 1999, the European Council affirmed the aim of the Member States to ‘work towards establishing a common asylum system, based on a full and inclusive application of the 1951 Geneva Convention, thus ensuring that nobody is sent back to persecution.’

The Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status (hereinafter “the Procedures Directive”), came into force in December 2005.2 According to the Directive, the 24 Member States bound by it shall have or bring into force domestic legislation necessary to comply with the Directive by 1 December 2007.

The Procedures Directive is part of the first phase of the establishment of the CEAS as outlined in the Hague Programme, which was adopted on 4 November 2004 by the EU Council. This programme contains the following general aims:

 To improve the common capability of EU/Member States to guarantee fundamental rights,
 To provide protection in accordance with the 1951 Geneva Convention and other international treaties to persons in need,
 To regulate migration flows, and
 To control external borders, to fight cross-border crime and to repress the threat of terrorism.

The internal dimension of the Hague Programme requires States to implement Phase I instruments without delay and the Commission, to evaluate first phase instruments by 2007 and to propose so-called second phase instruments.

Drafting Concerns

Throughout the development of the EC asylum directives, UNHCR has underlined its view that international law, based on the 1951 Geneva Convention and other treaties referred to in the Amsterdam Treaty, call for high standards of protection and processes to ensure that those entitled to protection would be recognized.

The UNHCR welcomed confirmation in the Procedural Directive of certain basic principles and guarantees which should apply in an asylum procedure. However, UNHCR noted in its observations that the possible exceptions and derogations which qualify these safeguards are so broad that, in practice, these minimum safeguards may not apply to a significant number of asylum-seekers in the EU. These concerns related to the proposed directive where also shared by other actors working in the field of asylum.

For example, in his report on an amended proposal for the Procedures Directive in 2004, Wolfgang Kreissl-Dörfler stated his concern that the Directive will result in the undermining of standards with regard to definitions laid down in international conventions, such as the 1951 Geneva Convention concerning the rights of refugees, the UN convention on children’s rights and other fundamental codices.3

Similarly, the European Council on Refugees and Exiles (ECRE), in its note on the Directive of December 2005, expressed concern that a number of provisions as contained in the Directive “do not properly reflect or ensure respect for Member Sates’ obligations under international refugee and humanitarian law”. ECRE furthermore highlighted that “the Directive falls well short of the standards conducive to a full and fair examination of an asylum claim”.

Cathryn Costello, on Oxford based research fellow on EC and Public Law opined that “the Directive itself embodies violations of fundamental rights and Community legislature should not be able to avoid legal and political responsibility for these violations”. She furthermore expressed the view that “throughout the drafting process, standards were lowered, guarantees reduced and exceptions expanded. It is no exaggeration to say that under the Directive, exceptional procedures will become the norm”.

In its observations, UNHCR highlighted the following main areas of concern with regard to the Procedural Directive:

Firstly, it foresaw the possibility that States which implement the EU standards at the minimum level permitted by the adopted Directives and Regulations could fall short of fulfilling their international legal obligations. This means that the EC norms could permit national laws and practices to violate international obligations governing the rights of asylum seekers and people in need of international protections.
Secondly, UNHCR expressed concern that the low minimum standards adopted by the EU would appear to be impelling some states which previously offered more generous entitlements to tighten their national laws, thus precipitating a drop in standards EU-wide, potentially to the level of the ‘lowest common denominator’.

Thirdly, UNHCR feared that even the agreed EU standards may not be fulfilled or implemented in practice by some states, due to a wide range of factors, including for reasons related to competing political and social priorities.

More specifically, UNHCR was concerned with certain provisions of the Procedural Directive, and recommended as follows:

(1) Application of the “safe third country” concept should be limited and should include an effective opportunity to rebut a presumption of safety
(2) Accelerated procedures should be limited to clearly well-founded or clearly abusive or manifestly unfounded cases
(3) The same minimum procedural guarantees should apply for all asylum examinations
(4) The right to an effective remedy should include a suspensive effect
(5) Applicants who left the country before a substantive examination was completed should have access to an examination upon return, and
(6) The “safe country of origin” concept should be applied narrowly.

In view of the fact that the Procedural Directive only defines common minimum standards for national asylum procedures, but permits EU Member States to retain or introduce higher standards in national law, UNHCR position was that Member States should apply more favorable positions where necessary to ensure compliance in practice with international refugee and human rights law.

Transposition Concerns

As the first phase of transposition of the Procedural Directive is progressing, UNHCR is finding that some of the aforementioned concerns expressed during the drafting of the Directive are being substantiated by the reality and practice in the Member States. Broadly speaking, the countries covered by UNHCR’s Regional Representation in Budapest have, unfortunately, not taken sufficient advantage of the flexibility granted by the Directives to implement more favourable asylum standards, and have drafted laws, in some cases, which may be at variance with international law and standards.

With respect to Hungary, UNHCR found that the draft law which, at the time of preparing this paper, still being debated in Parliament generally represents a progressive improvement of the legal framework for the protection of persons in need of international protection. However, UNHCR remained gravely concerned with regard with a number of issues, in particular related to the application of the concept of “third safe country” and “safe country of origin”. The proposed draft provision in the bill foresaw the application of an exclusion clause for persons coming from such countries. Clearly, this would be neither in line with the Directive nor with Hungary’s obligations under the Geneva Convention.

Related to a new draft law in Slovenia, it would appear that this law, if adopted by Parliament, will substantially lower the standards of asylum in Slovenia. Some of the specific clauses in the draft law of concern to the UNHCR are:

(1) The absence of free legal assistance in first instance asylum procedures,
(2) The increase in permissible grounds for detention,
(3) An increased number of reasons for rejection of applications in an accelerated procedure linked, in many instances, to a non-suspensive effect of a legal remedy and the possibility to detain such a persons,
(4) Exemptions to the need for personal interviews, and

In Poland, UNHCR identified several issues of concern with regard to transposition, including:

(1) The possibility introduced in the draft law of omitting a personal interview with an asylum seekers, and
(2) The current lack of a proper mechanism for the provision of legal assistance and representation.

The present draft law in the Slovak Republic, which aims to transpose the Procedures Directive, foresees to limit UNHCR’s role in a way that is neither in conformity with the Directive nor with Art. 35 of the 1951 Geneva Convention. The Slovak draft law also foresees a range of reasons for the acceleration of the asylum process combined with non-suspensive effects of legal remedies against such decisions.

Furthermore, UNHCR is concerned over the planned introduction of provisions related to the concept of safe first countries of origin and safe third countries without sufficient legal safeguards.

In the centre of UNHCR’s concern with regard to these points is the potential that the draft provisions, may lead to refoulement, i.e. the return to the country of persecution, of persons in need of international protection. UNHCR has thus appealed to States in the region to reconsider and review these draft position to ensure that mechanisms and procedures for the protection of refugees are brought in line with the obligation of States under the 1951 Geneva Convention. UNHCR also pointed point out to Governments that in the instance of a conflict between national legislation and international treaty obligations, predominance must also be given to the latter as codified in Article 27 of the Vienna Convention on the Law of Treaties. Thus, in transposing the Directive, UNHCR continuously urges EU Member States not only to comply with their obligations under the 1951 Convention and other international treaties, but to also apply these laws – once enacted - in good faith.

Current Developments

As mentioned earlier, the Hague Programme provides an important opportunity for reflection and assessment of the impact of these “harmonization measures”. In preparation for Phase II of the development of the CEAS, the Commission has been invited to conclude an evaluation of the first phase instruments in 2007 and submit second-phase instruments and measures to the Council and Parliament, with a view to their adoption by 2010. As to the latter, the Commission just issued a “Green Paper” which sets in motion a consultation process, including with UNHCR, on the future of the CEAS. This green paper does not contain any specific proposals, but is a set of questions, under 4 heading: a.) Legislation, b.) Flanking measures/practical co-operation, c.) Burden (responsibility) sharing and, d.) external dimension. Answers to these questions from different stakeholders will be reviewed later this year.

In UNHCR’s view, as the debate and the consultations continue on how best to proceed related to the establishment of a CEAS, every opportunity needs to be pursued by all actors and stakeholders to bring existing rules and standards in line with international law. This process should involve not only supplementing present texts with future instruments, but also reviewing and amending existing provisions and directives where there is a divergence between the requirements of community law and the obligation of member states under international law.

Role of the Judiciary

As the harmonization and transposition process evolves, the role of the judiciary becomes increasingly vital. National courts will interpret domestic legislation adopted pursuant to the Directives, and will establish discrepancies between their States’ international obligations and the provisions which their legislatures have enacted. The courts will be called on to rule on the compatibility of these provisions with other instruments of Community and international law, including the 1951 Geneva Convention. Thus, in our view, the judiciary will shoulder the enormous responsibility of ensuring that the national transposition of the directives does not lead to violations of international law and that States are in compliance with their obligations under the 1951 Convention. However, not only national courts will play a critical role in this regard, also the European Court of Justice in Luxembourg will have an increasingly important task, with its new jurisdiction over asylum.

Conclusion

UNHCR clearly is in favour of establishing an effective and harmonized CEAS which does not undermine international law and standards. As such, all actors, including Governments, judges, NGOs and UNHCR will need to work closely together in molding European asylum law in a way that compliance with international law is ensured.

This meeting here today of the Association of European Administrative Judges and the deliberations during the workshop will no doubt have an important impact on maintaining higher than minimum standards on asylum throughout Europe, based on the requirements of international law. Clearly, this is both in the interests of states as well as of asylum-seekers and refugees.