11th REPORT, SESSION 2001-2001: MINIMUM
STANDARDS IN ASYLUM PROCEDURES
Response
The Government welcome the report of 27 March
2001 and the endorsement it gives to the concept of a common European
asylum system. This memorandum responds to the opinions of the
Committee as set out in part 4 of the report.
A BENEFICIAL MEASURE
The Committee fears that the latitude given to
Member States may, in practice, undermine the principal objective
of establishing common minimum procedural standards and could
conceivably become a factor in jurisdiction shopping between the
Member States.
2. The Government considers that the move
towards a common European asylum system requires evolution rather
than sudden change. This is also the view taken by the European
Commission, whose Communication of November 2000 set out the case
for a two-stage process: short-term minimum standards leading
to a longer-term common system, via a number of interim measures
to aid convergence.
3. Whilst the Government hope to see the
establishment of ambitious and prescriptive standards in the first
phase, we also acknowledge that there are a number of areas in
which harmonisation will take place later in the process.
4. In that context, the Government do not
consider there to be a risk that the establishment of minimum
standards will contribute to jurisdiction shopping. The current
position is that there are no first-pillar standards for the asylum
process in Member States; the adoption of Directives which establish
minimum standards will set constraints where previously there
have been only third-pillar agreements, or no constraints at all.
PREMATURE TO
DEAL WITH
PROCEDURE?
Some witnesses have questioned whether it is in
fact premature to be dealing with procedures before more fundamental
issues, such as rules on the recognition and content of refugee
status, have been agreed.
5. The Government have some sympathy with
this view. There is certainly a debate to be had about the most
practical approach for negotiating draft Directives on the various
elements of Article 63(1) TEC, as well as about the priority which
should be given to each of them.
6. The European Commission has indicated
that draft legislation on all the elements of Article 63(1) will
be presented by summer 2001. The Government hope that this will
present an opportunity for a debate between Member States about
the best way to make progress.
LOWEST COMMON
DENOMINATOR
The Directive, in our view, should be trying to
raise standards wherever possible. Any notion that "minimum
standards" are minimum in the sense of the lowest common
denominator should be rejected.
7. The Government agree that the aim of
the process of establishing minimum standards must not be to reduce
standards to the lowest common denominator. The aim should be
to prepare the ground for the future common asylum system, and
in doing so the standards set must ensure that procedures are
both efficient and meet all the relevant international obligations.
We therefore hope that procedural standards in some Member States
will be raised, in order to reduce the disparities between Member
States and to ensure that the minimum standards set represent
a sufficiently ambitious step towards a common asylum procedure.
SCOPE OF
THE DIRECTIVE—"REFUGEE"
The Directive should, we believe,recognise that
human rights issues arise in the course of asylum applications,
that all Member States are party to the ECHR, and that the Union
must respect fundamental rights as guaranteed by the ECHR. The
Directive should therefore expressly provide, in the preamble,
that it is incumbent on Member States, when considering and determining
refugee status, to have regard to, and deal with, wider human
rights issues.
8. The Government agree with the conclusion
of the Committee in this respect. We would prefer to see a Directive
which covered all forms of international protection, not only
those provided by the Geneva Convention. The UK already operates
a comprehensive procedure in which all claims for international
protection are considered. However, we acknowledge that this is
not the case in all Member States, and therefore the move to comprehensive
procedures across the Union may need to be incremental. The Commission
has proposed a compromise, in Article 3, in which Member States
may opt, at this stage, to extend the provisions of the Directive
to cases involving subsidiary forms of protection.
SPEEDING UP
THE PROCESS
We appreciate the pressure to accelerate the decision-taking
process at the first level. But it is not just speedy, but defensible,
decisions which are needed. We should all be concerned that the
quality of the initial decision should be as high as possible.
9. The Government agree with the Committee
in this respect. It is in the interests of all parties that initial
decisions are of high quality and are taken swiftly. The considerable
extra resources which the Government have dedicated to the Immigration
and Nationality Directorate are designed to deliver this.
10. Training and development of staff is
a high priority. All caseworkers receive comprehensive training
in asylum policies, procedures and interviewing techniques; they
are then mentored by experienced caseworkers for a further period.
The quality of decision letters and interviews is sampled on a
regular basis, and caseworkers are able to call upon senior caseworkers
and lawyers for advice as required. All caseworkers have access
to a computerised knowledge base of country information, policies
and procedures, which is regularly updated. This all contributes
to high quality decision-making, which is confirmed by the fact
that the initial decision is supported by the Immigration Appellate
Authorities in more that 80 per cent of cases in which the applicant
appeals.
TRANSLATION AND
INTERPRETATION
The applicant needs to be able to know and understand
why his or her claim for asylum has been refused and how to initiate
an appeal. The determining authority has to make sure that the
individual concerned can exercise his or her rights. We would
therefore be reluctant to see any diminution of the requirements
of Article 7(e) and (f).
11. The Government considers that the aim
of Article 7 is important; it is clearly essential to a fair and
efficient system that applicants understand the process. The Government's
concern is to ensure that this achieved without damaging the considerable
progress which is being made in a number of Member States, including
the UK, to establish swifter and more efficient procedures. Our
initial position is that some amendment to Article 7 might be
necessary in order to achieve this balance. In particular, we
take the view that the balance might best be achieved by employing
a combination of case-specific information in the language of
the Member State and generic information in the language of the
applicant.
ACCESS TO
LEGAL ADVICE
It is, however, a matter for great concern that
a large number of asylum applications are currently being refused
in the UK because the form SEF has not been completed correctly
or returned in time. Rejection on so-called non-compliance grounds
puts the UK at risk of violating its international obligations.
There is no substitute for a procedure that produces speedy, fair
and sustainable decisions on the merits.
12. The Government share the Committee's
view that it is important to have a procedure which produces speedy,
fair and sustainable decisions on the merits. Significant steps
have been taken in the last year to speed up our procedures; and,
as mentioned above, various measures are in place which contribute
to quality decision making.
13. If we are to have a quick process, there
need to be deadlines to which applicants are required to adhere.
We consider that 10 working days is an adequate period for the
return of a SEF. Explanatory notes translated into all the main
languages have been introduced to help with the completion of
the SEF. Where SEFs are not returned on time, and no reasonable
explanation is given for this, the claim is considered on the
information available. We do not consider that this puts the UK
at risk of violating its international obligations, since the
applicant will have a right of appeal to an independent adjudicator
who will be able to consider the full merits of the claim, including
information which had not been provided at the time the original
decision was taken. Except in third country cases, no person is
removed from the UK without the substance of their claim being
considered.
THE "SAFE
COUNTRY" CONCEPTS
We share the concerns expressed by witnesses that
the Directive might set too low a threshold for the application
of the "safe country" concepts and that Member States
might adopt a list-based approach to handling applications, with
all the risks that entails.
14. The Government note the concerns expressed
by the Committee about the provisions of the Directive relating
to the concepts of safe countries of origin and safe third countries.
15. The Government considers that there
is potential benefit for the efficiency of asylum procedures,
and for deterring unfounded applications, in Member States identifying
safe countries of origin and dealing with applications from nationals
of those countries in an accelerated procedure. Such a procedure
need not preclude the proper individual consideration of the application.
16. Given that the current practices of
Member States vary widely in this area, we consider that the approach
proposed in the draft Directive is appropriate at this stage of
the harmonisation process. For the longer term, the UK has initiated
a wide-ranging debate on creating a more rational and effective
regime of international protection, including the proposal for
a common EU categorisation of countries of origin.
17. On the separate issue of safe third
countries, the Government see considerable merit in the use of
such a concept in limited and specific circumstances. This concept
is a useful tool in dealing with the incidence of secondary migration
between Member States. Indeed, the Dublin Convention is based
on the premise that it is appropriate to deem inadmissible to
the substantive determination process any case which is properly
the responsibility of another Member State. The Government welcome
the fact that this concept is acknowledged in the draft Directive.
THE ANNEXES
The current wording of the annexes appears to
require a lower level of human rights protection from "safe
third countries" than from "safe countries of origin".
This is problematic . . . The Directive should seek to ensure
that Member States only designate as "safe" those countries
that abide by a certain basic core of principles, so that Member
States do not neglect their own obligations under the Geneva Convention
and other international human rights instruments.
18. The Government agree with the Committee's
conclusion that the designation of safety must be based on a logical
and coherent approach. We therefore welcome the Commission's attempt
to provide such a framework, but we note with interest the Committee's
reservations about the annexes as currently drafted.
19. We understand that the Commission's
intention in drafting the annexes was to base the minimum standards
on those international obligations which are particularly relevant
to the lodging of an asylum application; in other words, which
relate to the five categories on which an asylum application may
be based: race, religion, nationality, membership of a particular
social group and political opinion.
20. Moreover, the concepts of "safe
third country" and "safe country of origin" are
distinctly different. In the former, the key issue is whether
an applicant would receive a proper consideration of his or her
asylum application if returned to the third country; in the latter,
the key issue is whether an applicant would be subject to a breach
of internationally-recognised rights if returned to his or her
country of nationality.
21. However, the Government acknowledge
that the report raises some important points relating to the relationship
between the annexes and Member States' wider human rights obligations.
We intend to pursue these points during discussion of the draft
Directive in the relevant EU fora.
THE ACCELERATED
PROCEDURE
We can see no benefit in the retention of such
procedures and we have doubts whether an accelerated procedure
has a place in the Directive. . .If, as seems likely, Member States
decide that the accelerated procedure will remain, we do not believe
that it should apply to safe country of origin cases or, indeed,
that there is any substantial advantage to be had in retaining
that concept in the Directive.
22. As explained above, the Government consider
that there are potential benefits for efficiency in Member States
designating certain countries of origin as safe. It is a separate
question as to what the consequences of that designation might
be. We note that the draft Directive proposes that such cases
may be dealt with in an accelerated procedure, but that admissibility
procedures must be limited to cases involving applicants who have
arrived from a safe third country. We expect a rigorous debate
on these issues between Member States and we note the strong reservations
of the Committee. In the meantime, we consider that the Commission's
proposal is a useful starting point.
SPECIAL CASES
The Committee agrees that unaccompanied minors
should have a guardian (not simply to act formally as legal guardian)
having a broad role to assist the applicant at all stages.
23. The Government share the Committee's
view that unaccompanied minors should have assistance at all stages
of the asylum process. All unaccompanied children who apply for
asylum in the United Kingdom are referred to the Panel of Advisers,
a Home Office funded body administered by the Refugee Council.
The Panel assists children in their dealings with the Home Office
and other central and local government agencies, providing independent
guidance and support to ensure that children are aware of their
rights and the services to which they are entitled.
We see some value in identifying and addressing
specifically, in a separate article or articles, the needs of
victims of torture as well as victims of violence (especially
women who have suffered sexual violence) and those psychologically
disturbed.
24. We do not consider that the absence
of separate articles for victims of torture and violence is a
major concern. It is, however, important that their needs are
recognised, and this can be done by treating each application
on an individual basis. Caseworkers are trained to deal with applicants
who have been torture victims or who have undergone other traumatic
experiences.
25. We have not identified a need to issue
separate guidance on dealing with applications from women. However,
we have reviewed our instructions to those dealing with asylum
applications, incorporating some guidance on dealing with gender
related issues. This guidance focuses on ensuring that all applications
are handled sympathetically and with due consideration to applicants'
anxieties and cultural differences.
DETENTION
We believe that Article 11 should be revised so
as to make explicit that detention should be permissible only
when in accordance with Article 5 ECHR and UNHCR standards. However
we doubt whether, as suggested by some witnesses, the Directive
should extend beyond procedural matters relating to detention
and deal with such matters as the conditions under which applicants
are detained. . . .We would see advantage in there being a general
statement . . . ,perhaps in the preamble, setting out the presumption
of liberty and requiring detention under the Directive to respect
general human rights standards.
26. The Government support in principle
the Committee's intention to ensure that the minimum standards
on detention enshrined in the Directive are compatible with Member
States' broader human rights obligations. We also agree that it
would not be appropriate for the Directive to prescribe the conditions
under which asylum seekers and others are detained.
27. However, we are not in favour of direct
references in the text of the Directive to the ECHR or UNHCR standards.
The former has the potential to, lead to conflicting jurisdictions
between the European Court of Human Rights and the European Court
of Justice. The latter are non-binding guidelines, elements of
which are open to varying interpretations. Our initial view is
that, whilst it may draw on these points of reference, the Directive
must be both autonomous and unambiguous in the way it sets standards
for detention. We expect considerable discussion between Member
States on Article 11 and we will bear in mind the comments of
the Committee in that context.
APPEALS—SUSPENSIVE
EFFECT
The general principle stated in Article 33(1)
that appeals shall have suspensive effect is one of the major
procedural safeguards established by the Directive . . . the categories
of cases where derogation is possible are open to criticism, particularly
cases (b) and (c) . . . We recommend that Article 33(2)(b) should
also be deleted. . . . Article 33(2)(c) should also be deleted.
28. The Government note with interest the
Committee's comments about sub-paragraphs (b) and (c). These are
important issues which will need to be discussed in detail by
Member States, and on which we will expect the Commission to clarify
its intentions and its reasoning. We do not have a firm view at
this stage, but will bear the Committee's comments in mind.
29. The Government are concerned that EU
Member States are specifically excluded from sub-paragraph (a).
This is an issue of great importance for the operation of the
Dublin Convention and its successor. In our view, the argument
for non-suspensive appeals in cases where another Member State
has accepted responsibility is at least as strong as in cases
involving non-EU third countries, and arguably stronger. We will
be pursuing this point with the Commission and with other Member
States in the appropriate fora.
RECOMMENDATION
The Committee considers that the proposal for
a Council Directive on minimum standards on procedures in Member
States for granting and withdrawing refugee status raises important
questions to which the attention of the House should be drawn
and makes this report to the House for debate.
30. The Government agree that the proposed
Directive raises issues of importance, both for domestic UK asylum
procedures and for the development of a common European asylum
system. We welcome the proposal for a debate.
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