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Resolution 1695 (2009) Final version
Improving the quality and consistency of asylum decisions in the Council of Europe member states
1. Acceptance rates for asylum seekers
in Europe vary dramatically from one country to another, highlighting
important shortcomings in terms of quality 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%.
2. The very low recognition rates in certain countries, or for
certain groups of asylum seekers, may be due to difficulties in
accessing the asylum process, insufficient procedural safeguards
in the asylum proceedings, restrictive and divergent interpretation
of eligibility criteria, lack of objective and reliable information
on the country of origin, poor evidential assessment, in particular
the culture of disbelief in asylum adjudication, political pressure,
lack of training of the relevant authorities and their personnel,
or a combination of these factors.
3. Asylum decisions are sometimes inconsistent within one and
the same country, as well as across the member states of the Council
of Europe. Such inconsistency means that similar claims are treated
differently. This is an affront to the rule of law and inherently
unfair. It is true that different member states receive asylum seekers
from different countries, whose need for protection might vary.
However, taking this into account, the acceptance rates are often
found to diverge even more.
4. There are also significant differences between countries with
respect to the number of cases in which refugee status is granted
and the number of cases in which applicants are afforded complementary
protection including, inter alia,
protection under the European Convention on Human Rights (ETS No.
5), subsidiary protection and other humanitarian protection.
5. Divergences may be even more dramatic when looking at acceptance
rates for specific countries of origin or ethnic groups lodging
applications at the same time, depending on the countries in which
the application for asylum are lodged. This can be seen in relation
to asylum seekers from Chechnya, Iraq, Afghanistan and by Roma from
Kosovo. For example, the acceptance rate for protection seekers
from Russia (primarily Chechens) has been seen to vary from 0% to
almost 80% in countries which have received significant numbers
of persons belonging to this group.
6. In some Council of Europe member states, up to 50%, or in
some cases even more, of first instance decisions on asylum are
overturned on appeal, indicating that first instance decisions are
unreliable and of poor quality. An appeal against a decision not
only delays final decisions, but increases the cost of the procedure and
increases uncertainty for the asylum seeker and members of his or
her family. Furthermore, not all states provide for a remedy with
automatic suspensive effect (such as appeal or judicial review proceedings
which effectively suspend an enforcement measure whose effect is
potentially irreversible), as required by the European Convention
on Human Rights.
7. All asylum decisions should be guided by fundamental principles
and objectives of human rights and the 1951 Geneva Convention relating
to the Status of Refugees and its 1967 Protocol, rather than by
political considerations. Any asylum system needs to deal fairly,
humanely and efficiently both with those in need of international
protection and with those whose application in such matters has
been rejected.
8. It is important to improve the quality and consistency of
asylum decisions and tackle the significant discrepancies in acceptance
rates, whether these occur within a specific country or between
countries. In order to do this, the Parliamentary Assembly calls
upon Council of Europe member states to:
8.1. ensure access to the asylum process by:
8.1.1. ensuring
that enhanced border controls, whether on land or at sea, do not
entail asylum seekers being denied access to the asylum system.
Where border controls are put in place, it must be ensured that
the protection offered is at the same level as that provided within
the country and border monitoring should be put in place, involving
national border control authorities, non-governmental organisations
(NGOs) and the Office of the United Nations High Commissioner for Refugees
(UNHCR);
8.1.2. providing asylum seekers with full information about procedures
affecting them in a language they can understand, and allowing UNCHR
and legal and NGO advisors access to asylum seekers at the earliest
opportunity, in particular to those who are held in detention and
in airport and port transit zones;
8.1.3. removing practical barriers to the asylum process, such
as deadlines for filing applications which are unreasonably short
or applied automatically, restrictive language requirements for
filling in application forms and problems with access to competent
interpreters;
8.1.4. providing for a personal interview for the purpose of
examining each asylum application;
8.1.5. providing for legal assistance and representation, free
of charge in accordance with the relevant national rules regarding
legal aid, not only at appeal stage, but also from the beginning of
the asylum process;
8.2. ensure that eligibility criteria both in relation to asylum
and complementary protection are fully compliant with fundamental
rights by:
8.2.1. ensuring that gender- and child-specific
forms of persecution are taken fully into account and that the assessment
of evidence is gender- and child-sensitive;
8.2.2. clarifying and harmonising the approach to persecution
by state and non-state actors, and the acceptance of internal flight
alternatives (safe areas within the country where persons can flee
or return);
8.2.3. ensuring that common minimum standards (but not lowest-common-denominator standards)
on the use of various forms of complementary protection are established
to reflect clearly those legal obligations under the European Convention
on Human Rights and other human rights instruments and obligations
applicable when asylum seekers are non-removable;
8.2.4. guaranteeing similar status to recipients of both refugee
status and complementary protection;
8.3. improve procedural safeguards, including those at appeal
level by:
8.3.1. front-loading resources (concentrating
resources as early as possible in the asylum procedure) as a crucial
means to achieve greater consistency and quality in asylum decisions and
to ensure that decisions are taken promptly without wasting time,
energy and money on lengthy appeals;
8.3.2. removing all procedural practices that violate the European
Convention on Human Rights and/or lead to erroneous assessments
increasing the risk of refoulement.
These include, inter alia,
unreasonably short, automatic time limits, non-suspensive appeals
and weak standards of appellate review;
8.3.3. dealing with asylum applications fairly and efficiently
without jeopardising the quality or consistency of the decisions,
and using accelerated asylum procedures as an exception and only limited
to clearly abusive or manifestly unfounded cases. Accelerated asylum
procedures should not be used for persons in a vulnerable situation
(including unaccompanied and/or separated minors or children, survivors
of torture, victims of sexual violence or human trafficking and persons
with mental and/or physical disabilities) or in complex cases;
8.3.4. dealing with asylum applications in a way which guarantees
personal dignity, the best interest of the child and the unity of
the family;
8.3.5. refraining from using lists of safe countries of origin
and safe third countries, to ensure that each asylum case is examined
individually with rigorous scrutiny of the particular situation
of each applicant with respect to the country in question. The asylum
seeker must be allowed to rebut any presumption of safety that may
be raised. Furthermore, states must be satisfied that receiving
states will in fact provide effective protection of the individual
asylum seeker, in order to comply fully with obligations under the
European Convention on Human Rights;
8.3.6. ensuring that reasoned decisions on facts and law are
given on all international protection decisions;
8.4. improve the quality of information and evidence used,
and its assessment, by:
8.4.1. ensuring fair assessment
of the individual’s testimony and credibility, giving, where necessary,
the benefit of the doubt to the applicant;
8.4.2. preparing, as appropriate, regular and updated country
of origin information and guidance notes for decision makers at
all levels, including judges, and publishing key case law in order
to contribute to the consistency and quality of decisions;
8.5. provide adequate training and support for those involved
in the asylum process and provide ongoing monitoring of such a process
by:
8.5.1. ensuring that training is provided to all those
involved in the asylum process, including judges, on international
refugee law and human rights standards. Training on cross-cultural communication
skills and gender and age sensitivity should also be provided, together
with training on interviewing children. Support and counselling
should also be provided to deal with problems which those working
in the field of asylum often face (such as burnout including fatigue, diminished
interest, feeling overwhelmed, and the culture of disbelief);
8.5.2. ensuring that asylum claims are thoroughly and individually
reviewed by more than one qualified decision maker, with adequate
resources, including time, at their disposal;
8.5.3. implementing a regular audit of the asylum process, in
consultation and in co-operation with the UNHCR where appropriate,
taking into account the good practice established, including programmes
such as the Quality Initiative in the United Kingdom;
8.5.4. supporting the International Association of Refugee Law
Judges in its work on training judges, holding conferences and bringing
together case law precedents from across Europe so as to build up
an accessible database of case law.
9. The Assembly invites the European Union to:
9.1. take into account the recommendations
made in this resolution in implementing its Common European Asylum
System and ensure that consistency is not achieved to the detriment
of procedural safeguards and that minimum standards do not also
become maximum standards;
9.2. revise, as a matter of urgency, the Dublin II Regulation
and the “safe country” mechanism, as they are premised on a false
assumption of equal standards of protection across Europe;
9.3. give priority – in the setting up of a European asylum
support office – to the issue of raising the quality and consistency
of asylum decisions in Europe;
9.4. promote responsibility-sharing among European Union member
states to relieve the burden on those states that are struggling
to handle large-scale arrivals of asylum seekers, and to provide
those states with capacity-building assistance to cope with future
asylum challenges;
9.5. prioritise in its revisions of the Procedures Directive
(2005/85/CE) and Qualification Directive (2004/83/CE) the removal
of provisions which are in conflict with the European Convention
on Human Rights and other international instruments.
10. The Assembly invites the Council of Europe’s Commissioner
for Human Rights to continue addressing the issue of the quality
and consistency of asylum decisions in his work with individual
member states and to use his network of national human rights institutions
to develop a thematic report on the issue for the benefit of all
member states.