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26 March 1997 Doc. 7783
ADOC7783
REPORT1
on the protection and reinforcement of the human rights
of refugees and asylum-seekers in Europe
(Rapporteur: Mrs Anne BRASSEUR,
Luxembourg, Liberal, Democratic and Reformers' Group)
_____
Summary
In response to the vast increase in the number of asylum applications between 1985 and 1992, the European states introduced a series of changes to their asylum laws in order to make them more restrictive. These measures resulted in a considerable decrease in applications and numbers of claimants granted refugee status after 1992. However, certain deficiencies in the asylum determination procedure and asylum laws in different countries can result in the violation of the human rights of refugees and asylum-seekers.
In this report, the question of minimum standards for asylum procedures is addressed. In general, they should provide greater protection for the human rights of refugees, and safeguard the most important of them _ the principle of non-refoulement. There is a need for a concerted all-European approach which would include policy co-ordination and harmonisation of asylum legislation. A binding agreement should be developed among Council of Europe member states.
Steps should also be taken to improve detention and deportation conditions, and to counter any acts or signs of racism, xenophobia, antisemitism and intolerance.
I. Draft recommendation
1. The Parliamentary Assembly recalls and reaffirms its Recommendation 1236 (1994) on the right of asylum, its Recommendation 1237 (1994) on the situation of asylum-seekers whose asylum applications have been rejected, and its Recommendation 1309 (1996) on the training of officials receiving asylum-seekers at border points.
2. The number of asylum-seekers in Council of Europe member states increased steadily in the early nineties to reach a level which made it difficult for many European countries to cope with the processing of asylum applications. Moreover, following economic difficulties and social tensions, public opinion became more and more hostile towards large inflows of asylum-seekers.
3. As a result of these developments, nearly all Council of Europe member states introduced restrictive changes to their asylum laws, extended their use of such concepts as "temporary protected status" and "the right to stay on humanitarian grounds", and concluded a number of multilateral treaties and bilateral readmission agreements.
4. Following these restrictive policies, the number of asylum-seekers dropped considerably, while at the same time in many European countries asylum procedures fell short of minimum standards in certain crucial respects. This prompts concern for the human rights of asylum-seekers.
5. The Parliamentary Assembly is concerned by practices restricting access to asylum procedure and deficiencies concerning the determination procedure.
6. The lack of Europe-wide harmonisation of asylum policies results in unequal "burden-sharing" and continuous attempts to shift responsibility further eastwards.
7. The absence of clear rules governing detention and deportation of asylum-seekers results in the violation of their human rights.
8. The Parliamentary Assembly recommends that the Committee of Ministers:
i. further intensify Europe-wide cooperation in the field of asylum policies;
ii. take the initiative of developing a binding agreement between the member states setting minimum harmonised standards for asylum procedures, taking into account the provisions of the European Parliament's resolution on minimum guarantees for asylum procedures adopted on 14 November 1996;
iii. insist that those member states which have not yet signed the Geneva Convention relating to the Status of Refugees (1951), and its New York Protocol (1967), do so as soon as possible, and that member states concerned lift the geographical limitation which they adopted when signing;
iv. instruct the appropriate committee to make proposals for minimum standards to be applied in implementing accelerated asylum determination procedures;
v. initiate a reform of the European Convention on Human Rights to make the provisions of Rule 36 of the Rules of Procedure of the European Commission of Human Rights concerning interim measures (such as the suspension of deportation orders) into a mandatory obligation of signatory states under the Convention;
vi. urge member states parties to the Dublin Convention determining the state responsible for examining applications for asylum in one of the member states of the European Communities to amend it with a view to allowing asylum-seekers to express a choice as to the country where they want to apply for asylum if they can demonstrate an association with that country;
vii. urge the member states:
a. to adopt national legislation designed to provide victims of torture and other serious violations of human rights with a domestic civil law remedy against their violations for damages along the lines of the Alien Tort Claims Act in the United States, and study the feasibility of developing a European Convention with this objective;
b. to include in the readmission agreements to which they are parties provisions containing guarantees to protect asylum-seekers;
c. to ensure that the "safe third country" and "safe country of origin" principles are not applied in an arbitrary manner, and that clear criteria are used for designating certain countries as "safe" on the basis of those recommended by the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR);
d. to insist that asylum procedures comply with the essential principles governing access, fair hearing and appeal set out in Conclusion No. 8 (XXVIII) "Determination of Refugee Status", adopted by the Executive Committee of the Office of the United Nations High Commissioner for Refugees (UNHCR) in 1977;
e. to give priority to non-custodial measures such as supervision systems, reporting requirements, bail or other guarantee systems;
f. to develop and disseminate clear criteria for the identification of asylum-seekers to be detained, in compliance with Conclusion No. 44 (XXXVII) "Detention of Refugees and Asylum-Seekers" adopted by the Executive Committee of UNHCR in 1986;
g. to introduce into their asylum laws rules on a maximum allowed period of detention of asylum-seekers, if they have not already done so;
h. to review, and where necessary to improve conditions of detention, and in particular not to detain asylum-seekers in prisons with common criminals;
i. to reexamine the procedures used during forced deportations with a view to the elimination of inhuman treatment, and, in particular, to establish monitoring of deportation procedures, including control at the place of destination;
j. to co-operate more closely with UNHCR, and local non-governmental organisations, and, in particular, to enable them to monitor the situation of returnees on the basis of special arrangements;
k. to support assisted return programmes for refugees organised by the International Organization for Migration (IOM);
l. to abide by the principle of voluntary returns of beneficiaries of temporary protection, and to ensure that any forced repatriation deemed necessary should be exceptional and carried out in accordance with UNHCR recommendations and in close co-operation with this Organisation;
m. to interpret the concept of asylum-seekers' families as including de facto family members (natural family) eg. asylum-seeker's concubine or natural children as well as elderly, infirm or otherwise dependent relations;
n. to allow members of the same family to reunite already at the stage of status determination procedure, which sometimes lasts a very long time;
o. to reconsider policy on family reunion in respect of persons granted temporary protection or permission to stay on humanitarian grounds;
p. to review their policies in the field of social rights and assistance in order to ensure that each asylum-seeker's case is treated on its merits, in particular to ensure that there is no discrimination against certain categories of asylum-seekers, such as so-called "late applicants";
q. to develop programmes aiming at integration of refugees into the host society and preparation for possible return (including skills training and income-generating projects with a view to self-reliance);
r. to sign and ratify the International Convention on the Elimination of All Forms of Racial Discrimination, and include in their domestic law provisions aiming at the prevention of discrimination and racist or xenophobic activities;
s. to implement at national level the general policy recommendations formulated by the European Commission against Racism and Intolerance in the framework of the Council of Europe's Plan of Action on combating racism, xenophobia, antisemitism and intolerance;
t. to strengthen relations with non-governmental organisations concerned with human rights, and promote the networking of their activities.
II. Explanatory memorandum
by Mrs BRASSEUR
Contents
Page
1. INTRODUCTION: A RESTRICTIVE CLIMATE 6
2. MINIMUM STANDARDS FOR THE PROTECTION OF
ASYLUM-SEEKERS IN EUROPE 7
3. SHORTCOMINGS IN ASYLUM PROCEDURES 8
i. Practices restricting access to asylum procedure 9
ii. Fair hearing 10
iii. Appeal 10
Need for coherence 11
Social rights and assistance 11
Family reunion 12
Integration and preparation for a possible return 12
Detention 12
Deportation 13
Racism and xenophobia 14
Refugee women 14
4. POSSIBLE SOLUTIONS 14
Harmonisation of asylum legislation and policy co-ordination 14
Elimination of shortcomings in legislation 15
1. Introduction: a restrictive climate
1. On account of the international political and economic situation, the number of asylum-seekers in Council of Europe member states increased steadily during the 1980s to reach, in 1992, a level unknown in Europe since the Second World War. For example, 13 industrialised European countries2 received 65 400 applications in 1983 compared to 692 686 in 1992.
2. This large influx of asylum-seekers made it difficult for many European countries to cope properly with the processing of asylum applications. Moreover, economic difficulties in the majority of Western societies, resulting in unemployment and slower than expected improvement in living conditions, gave rise to racist and xenophobic attitudes towards asylum-seekers in particular.
3. As a result of these developments, nearly all Council of Europe member states introduced changes in their asylum laws. All of them have made their previously liberal asylum laws more restrictive. Such restrictions include prescreening or admissibility procedures; accelerated procedures for "manifestly unfounded" cases (such cases include applicants from "safe countries of origin" or who have travelled through any so-called "safe third country" on their way to the country where they apply for asylum); stricter visa requirements; carrier liability; sanctions on traffickers who bring in refugees illegally; shorter refugee status determination procedures and reduction of backlogs; limiting the right of appeal; withdrawing work permits and reducing benefits for asylum-seekers.
4. A further result of the huge increase in numbers of asylum-seekers is the growing practice of granting them "temporary protected status", that is, the right to stay on humanitarian grounds, a concept applied by many countries faced with the influx of people who fled the recent conflict in ex-Yugoslavia, in accordance with the guidelines laid down by the Office of the United Nations High Commissioner for Refugees (UNHCR).
5. The number of asylum-seekers granted temporary protection status has considerably increased in all European states. Such de facto refugees are more susceptible to arbitrary decisions by the authorities and do not usually enjoy the same rights as those granted refugee status under the 1951 Geneva Convention relating to the status of refugees and its 1967 Protocol (for example rights to public assistance or wage-earning employment).
6. Reinforcing the restrictive measures adopted by governments, the European Union has developed a number of multilateral treaties in the field of asylum policies. The Schengen Agreement on the Gradual Abolition of Controls at the Common Frontiers, which has been signed by nine European Union member states, came into force on 26 March 1995. A further agreement, the Dublin Convention determining the state responsible for examining applications for asylum lodged in one of the member states of the European Communities, has been signed by the European Union member states, although they have not yet all ratified it and it is not yet in force.
7. Bilateral readmission agreements have increasingly been negotiated with a view to sending asylum-seekers back to the previous country of transit or residence, in which they could have requested protection, or to returning asylum-seekers whose applications have been rejected to their country of origin or a third country. These agreements are used as important instruments for co-operation with the countries of central and eastern Europe in the refugee field. Virtually all the latter countries (except for the Commonwealth of Independent States (CIS)) have already concluded such agreements both with the European Union member states and with each other. One of the results of these agreements is that they transform the central and eastern European states from transit countries into countries of asylum by default. There is a visible intention to transfer the burden of asylum-seekers further east. A readmission agreement between Poland and Russia, now being negotiated, will be the first one of this type to be signed by Russia. It will undoubtedly be followed by other agreements with countries emerged from the former Soviet Union.
8. Increased illegal smuggling of individuals across more tightly controlled borders of the European Union, which has become a lucrative trade over the last few years, has been a direct cause of many deaths.
9. Following the adoption of restrictive policies by the European states, the number of asylum-seekers has dropped considerably, from almost 700 000 in 1992 to 549 407 in 1993, 318 887 in 1994, and 265 622 in 1995 in the 13 countries listed in footnote 1. The most significant decrease in applications was noted in Germany, where between 1992 and 1994 there was a decrease of 71%.
10. It must be said that, compared to other continents, Europe is low on the list as regards the number of asylum-seekers who are actually granted refugee status under the 1951 Geneva Convention and its 1967 Protocol.
2. Minimum standards for the protection of
asylum-seekers in Europe
11. Refugees' rights cannot be considered without reference to the Universal Declaration of Human Rights, which lays down the principle that everyone has the right to seek and to enjoy in other countries asylum from persecution, and to the European Convention on Human Rights, which has given rise to a considerable body of case-law in the matter of asylum, particularly in regard to Articles 3 (prohibition of torture or of inhuman or degrading treatment or punishment), 8 (respect for private and family life) and 13 (effective remedy).
12. The main international legal instrument applying specifically to refugees and asylum-seekers is the Geneva Convention relating to the Status of Refugees (1951), and its New York Protocol (1967). These texts define the term "refugee", establish the principle of non-refoulement and set basic rules for the treatment of refugees (legal status, social and economic rights, etc.). Certain Council of Europe member states are not signatories to this Convention and Protocol, and four of them, namely Hungary, Malta, Monaco and Turkey, opted for a geographical limitation to the scope of these instruments. UNHCR is responsible for ensuring compliance with international refugee law and for the protection of refugees and asylum-seekers generally.
13. Principles of international protection are further developed and clarified in the conclusions of the Executive Committee (EXCOM) of the UNHCR Programme. Procedures and criteria for determining refugee status are set out in a UNHCR Handbook.
14. The European Parliament has adopted several Resolutions relating to asylum-seekers and refugees, the most important being its Resolution of 18 November 1992 on the harmonisation within the European Communities of asylum law and policies, its Resolution of 19 January 1994 on the general principles of a European refugee policy, and its Resolution of 14 November 1996 on the Council Resolution (adopted on 20 June 1995) on minimum guarantees for asylum procedures.
15. As one of its major tasks is to promote human rights, the Parliamentary Assembly has long been concerned with the protection of refugees and asylum-seekers. Repeated calls for the inclusion of a right to asylum in a protocol to the European Convention on Human Rights were incorporated in the Assembly's Recommendations 293 (1961), 1088 (1988), 1236 (1994) and 1278 (1995). Alternatively, the Assembly suggested elaborating a separate European convention on asylum (Recommendations 842 (1978), 1016 (1985), 1088 (1988)). At the very least, the Assembly insisted on the prohibition of refoulement (for example in Recommendation 434 (1965)), and tried to extend protection to de facto refugees (Recommendation 773 (1976)). The Assembly has also called for the harmonisation of asylum procedures (Recommendations 787 (1976), 1236 (1994), and 1278 (1995)).
16. Partly in response to the Parliamentary Assembly's recommendations, the Committee of Ministers of the Council of Europe has adopted a number of recommendations and resolutions on the subject of asylum, without going so far as to accept the principle of a right to asylum. Particular mention can be made of Recommendation No. R (81) 16 on the harmonisation of national procedures relating to asylum; Recommendation No. R (84) 1 on the protection of persons satisfying the criteria in the Geneva Convention who are not formally recognised as refugees (de facto refugees) and Recommendation No. R (94) 5 on guidelines to inspire practices of the member states of the Council of Europe concerning the arrival of asylum-seekers at European airports. Moreover, in its landmark Resolution (67) 14 the Committee of Ministers recommended that member governments should "act in a particularly liberal and humanitarian spirit in relation to persons who seek asylum on their territory".
3. Shortcomings in asylum procedures
17. In many European countries the asylum procedures fall short of minimum standards in certain crucial respects. In assessing whether an asylum procedure satisfies the basic minimum standards set by Conclusion No. 8 "Determination of Refugee Status", adopted by the Executive Committee of the UNHCR Programme in 1977, there are many different aspects to be considered. They fall into three broad categories corresponding to the main phases of the asylum procedure.
i. Practices restricting access to asylum procedure
18. Over the last few years the majority of European countries have sought to restrict access to the refugee determination procedure, in which the claim of an applicant is examined against Article 1A of the 1951 Convention (the refugee definition). These changes include, for example, filtering out or speeding up the treatment of "manifestly unfounded" cases: asylum-seekers coming from so-called "safe" countries of origin or those who have travelled through any so-called "safe third country" on their way to the country where they apply for asylum. In many countries, the asylum-seeker is not given an interview _ he is rejected on the basis of these technical considerations.
19. It should be stressed that there are no clear criteria for designating certain countries as "safe countries of origin". The European Union Ministers responsible for immigration, at their meeting of 30 November-1 December 1992, did lay down some criteria in their Conclusions on "countries in which there is generally no serious risk of persecution", but they are non-binding and in any case it does not appear that they are adhered to. In practice every country has its own list of "safe countries", and decisions are taken individually by each country. There is no permanent monitoring body which can verify the human rights situation in asylum-seekers' countries. The Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) of the Council of Europe is preparing guidelines on the safe third country concept, including clear criteria for designating certain countries as "safe".
20. It has become increasingly common practice for asylum-seekers to be sent back to other countries with no guarantee that they will not be sent on to the country of origin where they risk becoming victims of serious human rights violations. There is no assurance that they will be admitted to the asylum-procedure, which may be lacking in certain essential safeguards.
21. A particular country may be "safe" for asylum-seekers from certain countries but not from others. For example, Turkey is considered a "safe country" even though Kurdish people of Iraqi nationality risk being turned over to the Iraqi authorities once returned to Turkey. Therefore any decision to refuse access to asylum procedure should be taken not automatically but on the basis of knowledge of all the circumstances of the case.
22. The visa requirement is clearly used as an operational tool for the purpose of limiting the entry of asylum-seekers. For example, from mid-1992 to 1994 all European Union member states except Italy imposed visa requirements on nationals of Bosnia-Herzegovina. At the same time in accordance with most European jurisdiction it is not possible to be granted a visa as an asylum-seeker or be recognised as a refugee by a foreign country on one's own territory.
23. The obstructive effect of visa requirements is reinforced by sanctions on carriers. Airline companies face fines if they carry people without the required visa and travel documents. In order to avoid the fines they conduct pre-flight screenings at points of embarkation, especially at airports, which is inconsistent with Article 31 of the 1951 Geneva Convention which recognizes that asylum-seekers may have good cause for irregular entry.
24. Illegal entry is a common ground for detention of asylum-seekers, and, in some cases for accelerated procedures.
25. A further problem involves the level of the competent authority. The decision on the "admissibility" of a claim for asylum is often taken by a border official and the application may not be referred to the body responsible for the determination of refugee status. It is not appropriate for border officials to decide on the procedure, especially since in some countries they are not even trained in this field. Each case should be referred to the responsible central authority.
ii. Fair hearing
26. By a fair hearing should be understood a full interview and examination of the asylum claim by a specialised authority, and appropriate legal assistance. Certain minimum standards should govern such hearings:
_ the individual asylum-seeker should appear personally before the officials of the responsible decision-making body; the hearing should be confidential; and interpreters should be available;
_ asylum-seekers should be given a reasonable time to prepare their case, to communicate with and seek advice from their lawyer or appropriate non-governmental organisations, and to obtain whatever background information is necessary in support of their claim;
_ every examination should be personal and individual, not collective, in order to avoid a possible risk of misjudgment;
_ the knowledge and expertise of the decision-making body should be backed up by a documentation office with up-to-date information on the human rights situation in different parts of the world;
_ asylum-seekers should have the benefit of legal assistance throughout the procedure.
iii. Appeal
27. Appeals should be of a judicial nature and should be examined by a different body from that which took the decision in the first instance. In order to ensure that the principle of non-refoulement is not violated, the appeal should have a suspensive effect. This is not the case in the majority of European countries.
28. Rejected asylum-seekers, who are threatened by deportation may apply to the European Commission of Human Rights if such deportation is to a country where the applicant runs a risk of being treated contrary to the European Convention on Human Rights, especially to Articles 2 (right to life) or 3 (prohibiting torture and inhuman or degrading treatment or punishment). Although such an appeal has no suspensive effect, the Commission may indicate to the state an interim measure under Rule 36 of the Rules of Procedure to suspend expulsion pending the outcome of the Commission's consideration. This indication however has no binding force. The Commission's practice has been quite restrictive (about 15% of such applications are accepted) and states do not invariably comply. It would be desirable to make the interim measures mandatory as one of the states' obligations under the Convention.
Need for coherence
29. Since all the stages in the refugee determination procedure are interlinked, it is essential that all its governing principles should be coherent. Many Council of Europe member states do not meet this requirement, and the list of shortcomings in their procedures is long. These can be illustrated by a few examples:
30. The German Asylum Law (amended in 1994) does not allow administrative courts to stop the forcible return of asylum-seekers to a "safe third country" and border officials have the authority immediately to return asylum-seekers at the border. In cases where asylum-seekers are returned to third countries, no guarantees are sought prior to the expulsion as to whether the returned asylum-seekers will be readmitted and granted access to an asylum procedure in the third country.
31. In Austria the decision of the border police cannot be appealed either. Asylum-seekers having come without a visa through any "safe country" are considered illegal entrants; they are detained and deported either to a presumed "safe" country or to their home country. On this basis there have been registered deportations to Croatia (Bosnian refugees), Jordan and Turkey (Iranians and Iraqis), Angola (Zairians) and Sudan (Somalis and Ethiopians). Asylum-seekers from Egypt, Algeria, and Saudi Arabia have been sent directly to their countries. It is common practice that any claim made by an asylum-seeker who has been sent back from another country, is not given substantive consideration, even if the returning state rejected the claim simply on procedural grounds ("safe third country").
32. In Ireland, although asylum-seekers are entitled to be assisted by a lawyer, the government does not provide funds for legal assistance. As a consequence, many asylum-seekers have no legal assistance.
33. In France in 1992-1993 less than 40% of asylum-seekers under the refugee determination procedure had a full personal interview before the decision-making body, OFPRA. A further 13% had a brief interview at the time of submitting their application.
34. In Belgium the conditions necessary for a fair hearing are not satisfactorily met, in particular in the case of detained asylum-seekers. They are not provided with legal assistance.
Social rights and assistance
35. Under the 1951 Geneva Convention, a refugee and his or her family enjoy full social rights including access to employment, social services, accommodation and education. This provision does not apply however to asylum-seekers waiting for their status to be determined, which can take a long time.
36. Over the last few years both the range of social assistance and the number of applicants entitled to benefit have diminished considerably in most European countries. For example in France and Belgium asylum-seekers have not had access to the labour market since 1991 and 1992 respectively. In Switzerland and the United Kingdom permission to work is granted to asylum-seekers after a few months, while in Germany they may apply for a work permit for a given job but only after this has first been offered to a German or privileged foreign applicant. In some countries they have no right to work throughout the whole determination procedure.
37. In some countries social assistance is not granted to so-called "late applicants" ie asylum-seekers who submit their application a certain time after entry into the country.
Family reunion
38. Under international law, states should fully respect the rights of refugees and asylum-seekers to family unity and family reunification. In particular, the family of a refugee or asylum-seeker should include de facto family members (natural family), such as a concubine or natural children. Practice shows that Council of Europe member states do not always comply with this rule.
39. The member states rarely recognize that the family of a refugee or asylum-seeker may include more than a spouse and minor children, such as those who are dependent on account of age, infirmity or family circumstance.
40. Following the Schengen Agreement two members of the same family coming to two different countries are forced to stay separately until the outcome of the determination procedure, since according to the rules they are obliged to apply for asylum in the first safe country. The granting of refugee status to one of them automatically entails the right to reunification.
41. Persons granted protection under a temporary protection scheme usually do not benefit from family reunification despite criticism in this respect expressed by UNHCR. The same applies to persons granted residence on humanitarian grounds, although their situation improves in this regard after a certain time.
Integration and preparation for a possible return
42. States should also make an effort to facilitate the integration in the receiving country of those who have been granted asylum, so as to avoid tension and hostility with the host population.
43. Skills training and income generating projects with a view to self-reliance and to enabling refugees and asylum-seekers to contribute more fully to their host countries and to their countries of origin upon possible return should be established and commonly applied. For the moment they are being extensively developed only in Germany and Switzerland.
Detention
44. The most common grounds for the detention of asylum-seekers are lack of valid documents upon their entry to the country, and the suspicion that they are not refugees, but economic migrants likely to abscond if released into the community. The decision on detention is most often left to border officials, and there are no objective criteria to be observed. Another category of detainees are rejected asylum-seekers pending deportation. Again, there are no clear rules, and different factors in practice determine who is detained prior to deportation. For example citizens of the countries which do not readmit their own nationals readily are more likely to be detained for longer periods than those of cooperative countries of origin.
45. In many countries detention conditions leave much to be desired. In extreme cases, asylum-seekers are detained in prisons, together with common criminals, pending the outcome of asylum procedure, or deportation. Very often they are not provided with information on their rights. There are reported cases of inhuman or degrading treatment.
46. In certain Council of Europe states the duration of detention is not defined. In one case recently decided by the European Court of Human Rights, the plaintiff had been in detention for six years.3 In another recent case, that of the Amuur family v. France, certain guidelines on duration of detention were laid down. The Court decided that deprivation of liberty of asylum-seekers is justified only for as long as determination or deportation procedures are in progress, and are prosecuted with due diligence.4
47. UNHCR has recently issued Guidelines on the Detention of Asylum-Seekers. These declare that as a general rule asylum-seekers should not be detained, describe the situations in which detention may exceptionally be employed, and elaborate on the admissible duration and conditions of detention.
Deportation
48. Conditions under which asylum-seekers are deported are sometimes intolerable and humiliating, involving the binding of hands, feet and mouth and the administration of sedative drugs even by airline personnel.
49. In order to facilitate deportations on a large scale, certain governments have concluded agreements with private companies specialising in this profitable "deportation business" providing transport and logistics. There are no monitoring procedures, and "mistakes" are quite common, when people are not sent to their countries of origin.
50. A number of governments do not readmit their citizens if they are rejected asylum-seekers with no formal proof of identity. This creates the phenomenon of "refugees in orbit" circulating from one country to another.
Racism and xenophobia
51. In certain countries racist and xenophobic attitudes towards asylum-seekers are widespread. Sometimes they lead to criminal acts. The Council of Europe has long been concerned with this problem and the Plan of Action on combating racism, xenophobia, antisemitism and intolerance should be followed up more intensively.
Refugee women
52. Refugee women constitute a separate category of refugees with specific needs and problems, in particular in the field of health care, social situation and family responsibilities. In certain cases, being victims of sexual or gender violence, they should be provided with special medical and psychological treatment. The Parliamentary Assembly, in Recommendation 1261 (1995) on the situation of immigrant women in Europe, has stressed the need for the equality of treatment between women and men and the elimination of any form of discrimination. Moreover that Recommendation called on the Committee of Ministers to "examine the question of the application of criteria specific to women in the refugee status determination procedure of the member states", and invited these member states "to apply in their refugee policies the principles laid down in Conclusion No. 64 (1990) on refugee women and international protection adopted by the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (UNHCR)". Guidelines on specific treatment of refugee women are included in a report on refugee women which is now under preparation by the Committee on Migration, Refugees and Demography.
4. Possible solutions
Harmonisation of asylum legislation and policy co-ordination
53. This report calls for a binding agreement between the member states of the Council of Europe setting minimum harmonised standards for asylum procedures based on the highest common denominator. Some harmonisation has been undertaken in recent years, in particular within the European Union. Thus the European Council, meeting in Strasbourg in December 1990, set the objective of harmonising member states' asylum policies. However, measures taken so far have tended to reflect current restrictive policies and practices.
54. For example, on 20 June 1995 the Justice and Home Affairs Council adopted a Resolution on minimum guarantees for asylum procedures. However, the European Parliament in its Resolution of 14 November 1996 on the subject, pointed out several shortcomings in the Council's Resolution _ not least the fact that it is not legally binding, but also its failure to provide adequate guarantees in regard to decisions on "manifestly unfounded" applications and "safe third country" procedures.
55. In November 1995, the Justice and Home Affairs Council agreed in principle to the text of a Joint Position on the harmonised application of the definition of the term "refugee" in Article 1 of the 1951 Geneva Convention. UNHCR in particular criticised this text as too restrictive in that it would allow states to avoid recognising as refugees people persecuted by non-state agents such as rebel groups or extremist organisations, notably in countries where state authority has collapsed.
56. The European Commission is considering the elaboration of a draft Convention on asylum policy.
57. The Parliamentary Assembly of the Council of Europe has recommended repeatedly that its member states harmonise their policies and determination procedures according to the most liberal and humanitarian standards. But this should be on the basis of pan-European co-operation, via agreements and co-operation extending to all Council of Europe member states, and not just bilateral or multilateral agreements or practices, such as application of the "safe third country" rule, involving only a few of the member countries. They should also try to distribute responsibilities more fairly among all the European countries. Furthermore, certain safeguards should be incorporated into asylum laws, especially for people sent back under readmission agreements and with regard to the processing of applications deemed "manifestly unfounded".
58. The 6th Conference of European Ministers responsible for Migration Affairs constituted an important step towards a comprehensive European migration policy. Following the Assembly's recommendations, the Ministers recommended that the Council of Europe should serve as permanent forum for co-operation between the member states and other international organisations in regard to policies on migration and refugees.
Elimination of shortcomings in legislation
59. Now that European countries are beginning to harmonize their asylum procedures, they should seize the opportunity to amend some serious deficiencies in existing procedures and practices.
60. Decisions taken by officials receiving asylum-seekers at border points in certain cases have crucial consequences for the latter. Denial of entry to the country means prevention from access to the asylum-procedure. In extreme situations such a denial may result in violation of a central principle of the 1951 Geneva Convention _ "non-refoulement". Therefore it is very important that the border officials or immigration officers who first come into contact with asylum-seekers (as well as carriers' personnel at the point of embarkation if they perform the functions of border police), are properly trained as recommended in Recommendation 1309 (1996) of the Parliamentary Assembly.
61. Essential principles governing access, fair hearing and appeal, as outlined above and in accordance with Conclusion No. 8 "Determination of Refugee Status", adopted by the Executive Committee of the UNHCR Programme in 1977, should form a minimum standard for a fair and satisfactory determination procedure.
62. Member states which participate in the safe country of asylum policy (Dublin Convention), should allow all asylum-seekers who have close links with a particular country to apply there for asylum. In other words an asylum-seeker should be afforded one (and only one) choice of where to apply for asylum if he or she can demonstrate a close association, for example: the legal presence of family members, prior periods of residence for professional or educational reasons, strong linguistic or cultural ties, or the existence of a large expatriate community. The Dublin Convention should be revised accordingly.
63. When applying readmission procedure states should ascertain in each case whether the third state to which an asylum applicant is to be returned will both accept him or her and give the application fair consideration before possible deportation.
64. Detention of asylum-seekers and refugees should in principle be avoided. Article 31§2 of the 1951 Geneva Convention provides that only the "necessary" restrictions should be applied to the movements of refugees having entered the country of asylum unlawfully. The states should consider the full range of alternative, non-custodial measures available to them like supervision systems, reporting requirements, bail or guarantee systems (involving humanitarian organisations or community groups). Member states should develop and disseminate clear criteria for deciding who should be detained and under what circumstances, in compliance with the UNHCR Guidelines adopted in 1995. In particular, the period of detention should be strictly limited and the maximum period of detention be stated in law. Detainees should be informed accordingly.
65. The question of forced deportations should be given more consideration by the Council of Europe member states. Inhumane methods of deportation should be eliminated, alternative methods for the humane repatriation of rejected asylum-seekers should be explored, and a system for monitoring deportations, including control at the place of destination, should be established.
66. Concerning the beneficiaries of temporary protection, voluntary return should remain the basic principle. However if forced repatriation were necessary, it should be carried out in accordance with UNHCR recommendations and in close co-operation with that organisation.
67. Member states should accept the compulsory application of Article 36 of the Rules of Procedure of the European Commission of Human Rights (interim measures allowing the suspension of decisions on expulsion).
68. Existing assisted return programmes for refugees as well as the concept of Multilateral Return Programmes developed by the Organization for Migration (IOM) should be supported. They aim at convincing participating states to show greater flexibility in readmitting their citizens even in the absence of formal proof of identity.
69. UNHCR has on occasion helped in monitoring the situation of returnees on the basis of special arrangements with the parties concerned (eg. Sri Lanka-Swiss Agreement, 1995). It would be highly desirable if this were regular practice.
70. Member states should revise their policies in the field of social protection for refugees and asylum-seekers to make it more flexible. For example in certain cases "late applications" are fully justified (the situation in the country of origin may deteriorate during the applicant's stay in the host country), and there is no reason to deprive them of the social rights granted to other asylum-seekers.
71. Member states should adopt national legislation providing victims of torture and other serious violations of human rights with a domestic civil law course of action for damages against violators. In particular, member states should be encouraged to adopt legislation similar to the Alien Tort Claims Act in the United States of America.
72. Member states should follow up at national level the results of the Council of Europe's Plan of Action on combating racism, xenophobia, antisemitism and intolerance, and sign and ratify, if they have not already done so, the International Convention on the Elimination of All Forms of Racial Discrimination.In this connection, the approval by the Council of the European Union of a binding instrument to combat racism and xenophobia is to be welcomed.
Reporting committee: Committee on Migration, Refugees and Demography.
Committee for opinion: Committee on Legal Affairs and Human Rights.
Budgetary implications for the Assembly: none.
Origin: Doc. 7354 and Reference No. 2023 of 25 September 1995.
Draft recommendation adopted by the committee on 6 March 1997 with 31 votes in favour, no votes against and 1 abstention.
Members of the committee: Mrs Aguiar (Chairperson), MM. Iwiński, Junghanns, Korakas (Vice-Chairmen), Açba, Mrs Aguilar (Alternate: Mrs Guirado), MM. Akselsen, Amoruso, Andres, Árnason, Mrs Arnold, MM. Beaufays, Billing, Bogomolov, van den Bos (Alternate: Jurgens), Branger, Mrs Brasseur, MM. Brennan (Alternate: Mitchell), Caceres (Alternate: Diaz de Mera), Cardona, Christodoulides, Chyzh (Alternate: Stepanov), Clerfayt, Dinçer, Ehrmann, Mrs Fehr, MM. Filimonov, Fuhrmann, Mrs Garajová, MM. Godo, Gotzev, Gross, Sir John Hunt (Alternate: Mr Atkinson), Mrs Johansson, MM. Kalus, Karaś, Lord Kirkhill, Mr Kukk, Mrs Kušnere, MM. Laakso, Lauricella, Laurinkus (Alternate: Stačiokas), Lazarescu, Leitner, Liapis, Loutfi, Luís, Mészáros, Micheloyiannis, Nogalo (Alternate: Mrs Bušić), Mrs Plechatá, MM. Rakhansky (Alternate: Dron), Sincai, Školč, Solonari, Mrs Soutendijk-van Appeldoorn, Mr Vangelov.
N.B. The names of those members present at the meeting are printed in italics.
Secretaries of the committee: Mr Newman, Mr Sich and Mrs Nachilo.
1 1by the Committee on Migration, Refugees and Demography
2 2 Austria, Belgium, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Spain, Sweden, Switzerland, United Kingdom (Figures from the Inter-governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia).
3 3 In the case of Chahal versus the United Kingdom a Sikh separatist spent 6 years altogether in a British prison pending the outcome of the determination procedure, appeals and, finally, deportation for national security reasons. (In its judgement delivered on 15 November 1996, the Court considered the applicant to be a security threat and did not find a violation of Art. 5, thus justifying the length of detention. At the same time it concluded that the deportation of the applicant to India would constitute a violation of Article 3. This judgment raises a more general question of asylum-seekers perceived as dangerous for national security by host countries. In this respect the United Kingdom recently proposed a "Declaration on implementation of the 1994 Declaration on measures to eliminate international terrorism" in which it proposes that suspicion of terrorism should be a sufficient reason for rejection of an application for asylum. There is a potential danger that such a vague provision _ if adopted by the General Assembly of the United Nations _ might be used in an arbitrary way and thus undermine the right to asylum. In any case it would constitute a precedent in seeking to reinterpret the UN Convention.
4 4 A similar position was taken by the Court in the Quinn v. France judgement of 22 March 1995 and also the Kolompar v. Belgium judgement of 24 September 1992.