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Working together to protect and respect refugees

146 Rue Royale, B-1000 Brussels

Tel: +32 (0)2 234 38 00 Fax: +32 (0)2 514 59 22 ecre@ecre.org www.ecre.org

ECRE is an international non-for-profit organisation (AISBL) Reg.No. 0809.651.278

Mr. T. BillstrmMinister for Migration and Asylum PolicyPresident of the JHA Council

Brussels, 25 November 2009

Dear Mr. Billstrm,

Re: Council Discussion on Commission proposals recasting the Qualification Directive 2004/83/EC and

the Asylum Procedures Directive 2005/85/EC/

At their meeting on 30 November and 1 December, Justice and Home Affairs Ministers will have a firstdiscussion on the recast of two important instruments of the EUs asylum policy: the EC Directive on minimumstandards for the qualification for international protection and the EC Directive on minimum standards for asylumprocedures in the EU Member States. With the proposals recasting the Reception Conditions Directive and theDublin and EURODAC Regulations already under negotiation in the Council and the European Parliament, allmain legislative instruments constituting the EU asylum acquis are now under revision.

ECRE, as a network of 69 refugee assisting organisations in 30 countries in Europe, has been closely followingthe EUs harmonisation process in the field of asylum and has conducted a number of in-depth research studieson the implementation of EU asylum legislation and its impact on the protection of refugees and the treatment ofasylum seekers in EU Member States. Such research has shown that considerable scope remains for furtherharmonisation in order to address the protection gaps that exist in and result from EU legislation.

This is certainly the case with regard to eligibility criteria for international protection that needs to be aligned withinternational refugee law and standards and the content of refugee and subsidiary protection status. ECREsresearch on the implementation of the Qualification Directive has pointed to a number of protection gaps, inparticular relating to the internal protection alternative, membership of a particular social group, the definition ofsubsidiary protection and exclusion clauses.

The standards laid down in the Asylum Procedures Directive are equally problematic. This instrument contains anumber of dangerously low standards that risk undermining asylum seekers access to a fair asylum procedureand may prevent persons in need of international protection from finding such protection. The extensivepossibilities for Member States to apply accelerated procedures with less procedural guarantees and without asubstantive examination of the asylum application, the fairly low guarantees with regard to legal assistance andthe possibility for Member States to even omit a personal interview in certain cases are only a few examples ofwhere the Directive falls short of the standards conducive to a full and fair examination of an asylum claim.

The pressing need for the second phase of harmonisation is also illustrated by the huge disparities that still existbetween EU Member States with regard to protection standards and recognition rates. In addition, nationalcourts increasingly suspend the transfer of asylum seekers to EU Member States under the Dublin Regulationon the basis that such transfers could result in their basic human rights being violated, while also the EuropeanCourt of Human Rights regularly imposes interim measures to prevent Dublin transfers between EU MemberStates.

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However, ECRE is worried that the need for further legislative harmonisation is sometimes put into question.Instead, the use of practical cooperation between EU Member States is often put forward as an alternative tofurther legislative initiatives. While certainly acknowledging the need for practical cooperation as acomplementary tool in the development of a Common European Asylum System (CEAS), we strongly believethat it cannot compensate for the flaws in the EU asylum acquis and the lack of sufficiently high standards ofprotection.

ECRE broadly welcomed the first asylum package presented by the European Commission in December as astep in the right direction. Without addressing all problematic aspects in the existing Directives, ECRE also

believes that the latest proposals recasting the Qualification and Asylum Procedures Directives includeimportant and necessary improvements. An example is the proposal to grant the same rights to refugees andbeneficiaries of subsidiary protection thus providing for a uniform protection status. This would avoid the creationof different categories of protection holders where there is little objective justification for such differentiation.Moreover, it would also better reflect the current situation in the Member States, a majority of which alreadygrant the same rights to refugees and beneficiaries of international protection. As far as the recast proposal onthe Asylum Procedures Directive is concerned ECRE welcomes its useful improvements with regard to a morerestricted use of accelerated procedures, a general right to a personal interview and enhanced provisions onlegal assistance and the right to an effective remedy.

As the Council will have a first discussion at Ministerial level on the Commissions recast proposals on theQualification and Asylum Procedures Directives, ECRE would like to remind Ministers of their moral and legalobligations to uphold Europes long standing tradition of providing protection to those fleeing persecution andgeneralised violence.

As stated in the European Pact on Immigration and Asylum, the time has come to take new initiatives tocomplete the establishment of a Common European Asylum System and to offer a higher degree ofprotection in the EU. Moreover, under the Lisbon Treaty, the EU must develop a common policy on asylum thatis in accordance with the Geneva Refugee Convention and other relevant treaties while ensuring compliancewith the EU Charter on Fundamental rights, including the right to asylum as laid down in Article 18.

ECRE therefore urges the JHA Ministers to commit to work together with the European Parliament and theCommission in a constructive way to establish a solid legal framework for the CEAS that is based on highstandards, is in compliance with international refugee and human rights law and standards and that can serveas a model of protection for the rest of the world.

We hope you will take these concerns into consideration during your discussions in Brussels.

Yours sincerely,

Bjarte VandvikSecretary-General