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12 April 1994
Doc. 7064
OPINION
on the right of asylum
(Rapporteur: Mrs MASCHER,
Germany, Socialist Group)
As a general rule, territorial asylum guarantees all refugees the right of permanent residence within the territory of the state concerned.
Asylum is granted on the basis of an evaluation of the applicant's individual situation by the state to which the request for asylum is made. However, it must be said that, although the right to asylum is enshrined in a large number of constitutions and bilateral and multilateral international agreements, the reception of increasing numbers of asylum-seekers has been causing very serious problems for several years.
Despite recognition of the individual right of refugees to asylum, and because of the high numbers involved, governments are increasingly torn between humanitarian obligations and the economic crisis, between the wish to let these people in and the fear of rising xenophobia, which is one of the main considerations which have led them to limit refugee access to their territory. This increasingly restrictive attitude is threatening to undermine the universal principles governing the protection of persons in need of it. It finds expression, in particular, in the practice of requiring visas and of sending asylum-seekers to other countries without ensuring that they will be effectively protected there. Access to asylum procedures is thus becoming ever more difficult.
A further problem is that States increasingly interpret the criteria for granting refugee status stipulated in the 1951 Geneva Convention relating to the Status of Refugees - for example, that of "well-founded fear of being persecuted" - as applying only to persecution by States, whereas in many refugee-creating situations the State has broken down.
Against this background and in view of the special problems posed by the right to asylum, your rapporteur wishes to reaffirm the right of all persons requesting asylum at frontier posts, ports and airports or elsewhere to be given a genuine opportunity to submit their request and be interviewed by trained staff. They should also be able to obtain legal representation, enjoy the right of appeal or review and have access to the Office of the United Nations High Commissioner for Refugees (UNHCR) and, where necessary, to a qualified and impartial interpreter.
The refugee's right of asylum is a basic personal right, irrespective of whether the person is a national of a state or stateless. Consequently, all rejections of asylum applications should be subject to suspensive appeal. It is therefore essential that the Council of Europe member states guarantee minimum rights where the procedures for asylum are concerned. For this reason, the Committee on Migration, Refugees and Demography fully supports the proposal made by the Committee on Legal Affairs and Human Rights in its report on the right of asylum that the possibility of amending the European Convention on Human Rights to include the right of asylum should be examined, or a separate agreement prepared on the subject if necessary. This text should not limit itself to defining the rules to be applied in asylum procedures but should also define the legal status of asylum-seekers and refugees, including those fleeing situations of war and generalised violence and de facto refugees.
Moreover, once the right of asylum has been granted, refugees should also enjoy reasonable living conditions, in accordance with the provisions of the 1951 Geneva Convention, and be helped to integrate in the host country. The problems involved in integrating, such as finding accommodation or work, are enormous.
Governments therefore have a duty to provide the means required to enable people who have been granted asylum to become full members of the host community and should adopt legislation prohibiting all forms of discrimination. Good community relations clearly help to lessen the risk of racism and xenophobia. The Committee on Migration, Refugees and Demography therefore supports the Recommendation of the Committee on Legal Affairs and Human Rights that member states be urged to legislate on this matter and implement the action plan on combating racism, xenophobia, anti-semitism and intolerance adopted at the Vienna Summit in October 1993 by Heads of State and of Government.
The Committee on Migration, Refugees and Demography also believes that the establishment of a "European Refugee Commission", in close co-operation with UNHCR, to ensure, by means of directives, that all countries apply common criteria in granting refugee status, should be encouraged. This commission could, in co-operation with the competent international agencies, play an important role in providing assistance to enable refugees to return to their countries of origin and reintegrate there, as and when the situation allows.
Finally, as the European Ministers responsible for Migration Affairs have stressed (Athens, 18-19 November 1993) "increased co-operation between all states concerned, together with the relevant international agencies and fora, a gradual convergence of immigration control systems and the harmonisation of asylum procedures, would create the conditions for maximising freedom to travel in Europe".
Reporting Committee: Committee on Legal Affairs and Human Rights (Doc. 7052)
Committee for an opinion: Committee on Migration, Refugees and Demography
Reference to committee: Doc. 6571, Reference No. 1773 of 11 March 1992
Draft opinion: unanimously approved by the committee on 12 April 1994
Secretaries to the committee: MM. Newman and Sich