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EU asylum directive: UNHCR's response

Briefing notes

EU asylum directive: UNHCR's response

30 April 2004

A press release on our response to yesterday's EU asylum legislation is available at the back of the room. It expresses UNHCR's concern that this key piece of European Union asylum legislation, agreed by EU Justice and Home Affairs ministers yesterday in Luxembourg, may lead in practice to breaches of international refugee law.

Taking what was a very good European Commission draft as its starting point, the long process of inter-state negotiations has resulted in an Asylum Procedures Directive which contains no binding commitment to satisfactory procedural standards, allowing scope for states to adopt or continue worst practices in determining asylum claims.

UNHCR is disappointed that EU states have failed to live up to the commitments they made at the beginning of the harmonization process in Tampere in 1999. There, they affirmed their 'absolute respect of the right to seek asylum' - and commitment to work towards establishing a common European asylum system based on the full and inclusive application of the 1951 Geneva Convention.

The Asylum Procedures Directive regulates how decisions on asylum claims are made in EU member states. It is the last and, along with the Qualification Directive agreed last month, arguably most important of five major pieces of legislation comprising the first phase of the effort to harmonize European asylum law. In reaching agreement on it, the EU has met the 1 May deadline set by the Amsterdam Treaty for completing this first phase.

We have repeatedly expressed a range of concerns during the negotiating process. Although some improvements were made to earlier versions, and the Irish Presidency and the European Commission attempted to broker a text acceptable to all concerned, the final document still includes serious deficiencies.

The most worrisome of our concerns are:

Rules permitting the designation - with insufficient safeguards - of so-called "safe third countries," to which asylum seekers may be returned.

Rules which allow countries to deport rejected asylum seekers before the results of their appeals are known - thus in practice removing their right to an effective remedy in the event of an error.

Under such rules, asylum seekers may not have access to either an individual examination of their claim or an effective opportunity to rebut the presumption that a given country is safe in their particular case. People can now be denied access to an asylum procedure altogether in the EU if they have travelled via so-called "super-safe" third countries.

UNHCR considers the lack of adequate safeguards in the super-safe and safe country provisions to be potentially dangerous to refugees. Refugees may find themselves forced back to their home countries, in direct contravention of international law, as a result of chain deportations by a string of countries, starting with an EU member state.

We believe the restrictions on appeals contain a similar risk, given that in some EU countries between 30 and 60 percent of refugees are only being recognized after an appeal.

The directive also permits a number of other restrictive and highly controversial practices that are currently only contained in one or two member states' national legislation but could, as of 1 May, be inserted in the legislation of all 25 EU states. Examples of this include rules that allow unaccompanied children over the age of 16 to be denied adult representation in the asylum procedure.

However, the harmonization process is not over - just the first very important phase. The next phase will also be extremely important. The Directives set only minimum procedural norms. UNHCR will be urging all 25 member states to set higher standards as they begin to transpose the EU legislation into their national laws.