Council of Europe: AI Observations on the Report of the Working Group on Human Rights Protection in the Context of Accelerated Asylum Procedures (GT-DH-AS) 1st meeting, 6-8th December 2006

Amnesty International welcomes the opportunity to contribute to the discussions of the Working Group which is mandated to propose draft Guidelines on human rights protection in the context of accelerated asylum procedures. As stated in an earlier briefing¹ to the Working Group, Amnesty International considers that the increasing use of accelerated asylum procedures by Council of Europe Member States, in particular those that are members of the European Union, is worrying as resort to these procedures risks undermining fundamental human rights guarantees, including the right to seek and enjoy asylum and the prohibition of refoulement. Amnesty International considers that provisions of the EU legislation relating to asylum are particularly problematic in this regard.

In this document, Amnesty International sets out its observations on a number of the topics selected by the Working Group for further debate and discussion in the ongoing process of drafting guidelines on accelerated procedures. These observations include comments on the scope of the guidelines and examples of best practice; the definition of and conditions for "accelerated procedures"; human rights protection of asylum seekers; application of the notion of safe country of origin; application of the notion of safe third country; procedures adopted at the border for dealing with asylum seekers; right of appeal with suspensive effect; detention and decision-making. As the guidelines which are adopted by the Council of Europe should, among other things help EU Member States to ensure respect and protection of human rights while applying relevant EU legislation, this document has a special focus on the potential human rights impact of EU instruments in the context of accelerated procedures.

1. Scope of the Guidelines and Examples of Best Practice

Amnesty International urges the Working Group to ensure that the Guidelines to be drafted take into account and address the human rights impact of the range of applicable EU standards. In particular Amnesty International urges that the Working Group not only take into account and address the human rights impact of the EU Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status² (hereafter Asylum Procedures Directive) and the EU Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national³ (hereafter the Dublin II Regulation) but also Council Directive 2004/83/EC of 29 April on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted⁴ (hereafter Qualification Directive).

The organization considers that taking the Qualification Directive into account is important because of the links between this Directive and the use of the accelerated or prioritised procedures. As the members of the Working Group are no doubt aware, Article 23 of the Asylum Procedures Directive enumerates the 15 criteria according to which asylum claims can be treated in an accelerated or prioritised procedure; some of these criteria refer explicitly to the Qualification Directive. In particular Article 23, 4 (k) of the Asylum Procedures Directive makes it possible for Member States to apply an accelerated or prioritised procedure if: "the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1) of this Directive" .

Article 4(1) and (2) of the Qualification Directive contains rules on the assessment of facts and circumstances of the asylum application according to which Member States may consider it the duty of the applicant to submit all elements to substantiate the application for international protection as soon as possible. Non-compliance with this obligation may trigger the application of an accelerated procedure under the Asylum Procedures Directive.

Thus, the Working Group's taking into account the Qualification Directive will help to ensure that the Guidelines it proposes address the range of circumstances under EU standards in which the accelerated procedures can be applied. As the aim of the Guidelines which the Working Group will develop aim to ensure the protection of human rights in the context of states' application of accelerated asylum procedures, including under relevant EU legislation, the core EU legal instrument laying down common criteria for the determination of persons in need of international protection, namely the Qualification Directive should be examined.

Amnesty International also urges the Working Group to ensure that the examples of best practice in the field of accelerated asylum procedures, which the Working Group has agreed should be appended to the Guidelines,⁵ focus in particular on examples in which such procedures have been applied in order to process manifestly well-founded cases.

2. Terminology: definition of and conditions for "accelerated procedures"

Amnesty International very much welcomes the decision of the Working Group that the Guidelines should stress and place emphasis on the exceptional nature of accelerated asylum procedures and the fact that regular asylum procedures should remain the rule.⁶ At the same time the Working Group has noted that no common international definition of an accelerated procedure exists. The Asylum Procedures Directive enumerates 15 criteria according to which an asylum procedure may be accelerated or prioritised but does not define what the consequences of such acceleration or prioritisation would be. Consequently the Asylum Procedures Directive does not "define" an accelerated procedure; it may even add uncertainty, as it introduces the equally undefined notion of 'prioritised' procedures. Amnesty International urges the Working Group to take this into consideration and reflect this in the draft Guidelines it prepares.

Amnesty International welcomes the decision of the Working Group that the Guidelines specify that accelerated procedures should only be used in limited circumstances. The organization shares the view expressed by the Working Group that the range of limited cases in which accelerated procedures can be applied should include manifestly well-founded cases and manifestly unfounded cases (meaning applications that are obviously not related to grounds for granting international protection).⁷ However, as regards the category of "clearly abusive cases", Amnesty International is concerned that as this concept is very vague, it could be open to an expansive definition and thus recommends not to use it in the proposed Guidelines.

As regards the specific grounds for fast track procedures that could raise human rights concerns that should be highlighted in the draft Guidelines, Amnesty International is particularly but not exclusively concerned about the following criteria in Article 23, 4 of the Asylum Procedures Directive:

• The application is considered to be unfounded because the applicant is from a safe country of origin.

As the application of the safe country of origin-notion may lead to discrimination among refugees which is strictly prohibited in Article 3 of the 1951 Convention relating to the Status of Refugees (hereafter, the Refugee Convention), Amnesty International strongly opposes the use of this notion in any asylum procedure and the adoption of safe country of origin lists (see also section 4, below).

• The applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality.

As refugees may have been forced to leave without any identity documents or may have been forced to hand in their passport or identity document, this should not be held against them when processing their asylum claim⁸. As it is very much open to interpretation whether or not the applicant has produced information establishing with a reasonable degree of certainty his/her identity or nationality, Amnesty International urges the Working Group to ensure that the Guidelines it proposes strongly advise against an automatic or strict use of this ground as a criterion for applying an accelerated or prioritised procedure.

• The applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing.

The assessment of whether an applicant's representations are inconsistent, improbable or indeed convincing are an integral part of the substantive assessment of the claim for international protection and should not, in itself, determine whether or not the application should be treated in an accelerated or prioritised procedure. Furthermore, it is widely acknowledged that post traumatic stress, often suffered by individuals seeking international protection, can have an impact on memory recall; thus credibility must be carefully and delicately scrutinized.⁹

• The applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so.

Here too, a strict application of this criteria should be avoided, as there might be good reasons why the applicant has not immediately lodged an asylum application even if he or she, technically speaking, had an opportunity to do so. The fact of delay may be caused, for example, by general distrust in official authorities as a result of bad experiences in the country of origin or even trauma¹⁰.

• The applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry.

Article 31 of the Refugee Convention prohibits States to impose penalties on refugees because of their unlawful entry or presence in a territory. Furthermore refugee protection requires a forward-looking assessment of risk. Therefore, the draft Guidelines should strongly advise against application of this paragraph in national practice.

3. Human rights protection of asylum seekers

Amnesty International welcomes the decision of the Working Group that the draft Guidelines reiterate the principle that asylum seekers benefit from the same guarantees set out in the European Convention on Human Rights (ECHR) as everyone else within the jurisdiction of state parties in accordance with Article 1 ECHR, as defined by the Court's jurisprudence.¹¹ Of particular importance to asylum seekers in this respect are: the principle of non-refoulement (Art. 3); the right to liberty in respect of detention of asylum seekers (Art. 5); the right to family life (Art. 8); and, the right to an effective remedy (Art. 13). Amnesty International urges that the Working Group ensures that the Guidelines clearly set out standards that reflect the Court's jurisprudence on these Articles. Amnesty International would like to refer the Working Group to the publication Asylum and the European Convention on Human Rights by Nuala Mole, Council of Europe publishing, 2007, for an analysis of the links between ECHR protections and asylum.

4. Application of the notion of safe country of origin

As indicated above, Amnesty International strongly opposes the use of lists of safe countries of origin to restrict access to asylum procedures as it constitutes discrimination among refugees that is strictly prohibited by Article 3 of the Refugee Convention¹². Although the Procedures Directive provides for a possibility for asylum seekers to rebut the presumption of safety as a principle, in practice it may often be an insurmountable hurdle for an asylum-seeker. Moreover, the possibility to rebut the presumption in theory may be highly theoretical in practice. In fact, as a result of the combined affect of Articles 23, 4 and 12, 2, c of the Asylum Procedures Directive, Member States may even omit a personal interview in cases in which the determining authority considers the asylum application to be unfounded because the applicant is from a safe country of origin. It is hard to see how the presumption of safety could effectively be rebutted if the applicant is denied a personal interview. If the safe country of origin notion is to be used, Amnesty International strongly believes that in order to give an effective opportunity to the asylum seeker to rebut the presumption of safety, a full interview should at least be organised, authorities should ensure that the asylum seeker is granted full access to the services of a competent, expert and independent interpreter, free of charge, and free expert legal advice and assistance. As a result, Amnesty International considers that Member States should not make use of this possibility. Amnesty International therefore urges the Working Group to ensure that the Guidelines it drafts strongly advise against applying Article 12, 2, c of the Asylum Procedures Directive¹³.

Amnesty International is also concerned that the Asylum Procedure Directive does not contain adequate provisions to ensure the reliable and independent monitoring of the human rights situation in the countries listed as "safe". The situation in the countries concerned should be assessed regularly and impartially on the basis of a wide variety of sources, including reports from UNHCR, Council of Europe bodies such as the CPT, and non-governmental organisations.

In any event Amnesty International reiterates its view that the Guidelines should clearly specify that the decision on each claim for international protection should be based on a full and fair individual assessment of the case.

Amnesty International considers the questions as regards the application of the notion of safe countries of origin listed in paragraph 13 of the Report of first meeting of the Working Group to be relevant, and looks forward to participating in future discussions about them. However, Amnesty International also urges the Working Group to examine the relevance of the notion of and lists of safe countries of origin in practice, including in light of current decreasing numbers of asylum applications in Europe. In this respect Amnesty International notes that the European Parliament brought an action for annulment before the European Court of Justice of Articles 29(1) and (2) and 36(3) of the Asylum Procedures Directive dealing with the adoption of a common list of safe countries of origin and a common list of European safe third countries which, as of May 2006 remained pending¹⁴. In Amnesty International's view, any discussion about the common list of safe countries of origin at EU level should at least be suspended until the judgment of the European Court of Justice.

5. Application of the notion of safe third country

Amnesty International recalls that the application of the safe third country notion raises important questions as regards access to a fair and satisfactory asylum procedure, access to effective and durable protection and risks of chain-refoulement. The organization therefore welcomes the decision of the Working Group to consider this issue further.

In anticipation of this discussion the organization recalls that, as the application of the safe third country concept may imply that successive states refuse to examine the asylum application substantively, it also raises serious questions under Article 3 of the European Convention on Human Rights. The issue has been addressed by the European Court of Human Rights in the case of T.I v. UK, in which it considered that State responsibility could arise by sending an asylum seeker to a third country under the provisions of the Dublin Regulation if, in the circumstances, there was a real risk that the applicant would be sent to a country where he faced treatment contrary to Article 3.¹⁵

Under international refugee law, it is the country where a refugee applies for asylum which is obliged to consider the application substantively and to ensure that the refugee is not directly or indirectly returned to persecution. A transfer of such responsibility can only be envisaged where a meaningful link exists between the asylum applicant and a safe country which makes his transfer reasonable and where the third country is considered to be safe in the individual circumstances of the applicant.

Amnesty International therefore suggests that the Working Group also consider the question of guarantees in practice as to access to the asylum procedure and substantive assessment of the asylum application in the safe third country concerned. Monitoring of these requirements is to be considered crucial in this respect. The same applies mutatis mutandis as regards the European Safe Third country concept in the Asylum Procedures Directive. As the establishment of a common list of European Safe third countries is also part of the action for annulment by the European Parliament, Amnesty International urges the Working Group to take into account the eventual outcome of the proceedings pending before the European Court of Justice.

6. Procedures adopted at the border for dealing with asylum seekers

Amnesty International welcomes the confirmation of the consensus of the Working Group that asylum procedures at the border should have the same legal and procedural safeguards as procedures that are being processed on the territory and urges that this principle be expressly included in the Guidelines.¹⁶

Amnesty International endorses the view that a specific guideline on border procedures may not be appropriate at this stage. Nevertheless, special attention should be paid to the involvement of border guards in the processing of asylum applications at the border. As border guards are often the first contact asylum seekers have with the authorities of the Member State, and in the organization's experience many of them lack sufficient background in human rights and refugee law, Amnesty International urges that the Guidelines equally stress the need for training of border guards in international human rights and refugee law, and in particular the principle of non-refoulement. Similarly the organization considers that the Guidelines should also contain a provision which would require border guards to immediately refer asylum seekers applying at the border to the competent authority. The Guidelines should also stress the need for states to ensure the independent and transparent monitoring of border practices with the aim of ensuring that persons applying for asylum at the border have effective access to the asylum procedure.¹⁷

7. Right of Appeal with suspensive effect

As the Working Group is no doubt aware, the Asylum Procedures Directive does not in itself guarantee the suspensive effect of legal remedies for asylum seekers. Article 39, 3, (a), of this Directive states:

'Member States shall, where appropriate, provide for rules in accordance with their international obligations dealing with a) the question of whether the remedy pursuant to the paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome'. Amnesty International urges the Working Group to examine and evaluate the human rights impact of the implementation of this provision in national law by EU Member States, particularly in accelerated or prioritised procedures. The situation at the border or in transit zones is of particular concern, due to the lack of transparency and sufficient monitoring by independent bodies.¹⁸

Moreover the European Court of Human Rights has held that 'the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned'.¹⁹ The Asylum Procedures Directive remains silent as to this question, apart from the general reference to 'rules in accordance with their international obligations' in Article 39, cited above. Amnesty International therefore considers that the Member States, could benefit from an explicit and clear reminder of this principle in the Guidelines on the protection of human rights in the context of accelerated asylum procedures.

8. Detention

It is Amnesty International's view that, as a general rule, asylum-seekers should not be detained. Amnesty International opposes the detention of asylum-seekers unless they have been charged with a recognizably criminal offence, or unless the authorities can demonstrate in each individual case that the detention is necessary, that it is on grounds prescribed by law, and that it is for one of the specified reasons which international standards recognize may be legitimate grounds for detaining asylum-seekers. Amnesty International calls on states to ensure that each asylum-seeker who is detained is brought promptly before a judicial or similar authority to determine whether his or her detention is lawful and in accordance with international standards.

As the Working Group decided "that criteria should be determined if detention was nevertheless deemed necessary",²⁰ Amnesty International calls on the Group to ensure that the Guidelines call on states to respect the abovementioned conditions, in order to ensure and underscore the exceptional character of detention of asylum-seekers, also in the context of accelerated procedures. Reference should be made, not only to Resolution 1471(2005) of the Parliamentary Assembly of the Council of Europe but also to the fact that according to the UNHCR, the detention of asylum seekers is 'inherently undesirable' and only acceptable on exceptional grounds. This is clearly reflected in UNHCR's Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers adopted in 1999 according to which authorities are always requested to consider any possible alternatives to detention, e.g. accommodation in open centres, release or bail or other provisions of a guarantor. Amnesty International urges that reference in the Guidelines and Appendix on this issue be made to the fundamental right of any individual to liberty under Article 5 of the ECHR, Article 3 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights and Article 6 of the Charter of Fundamental Rights of the European Union, as well as to international standards on the prohibition of arbitrary detention and the principle of proportionality, including under Article 9 of the ICCPR and Article 5 of the ECHR. ²¹

9. Decision-making

Amnesty International welcomes the Working Group's acknowledgment of the importance to respect for human rights of the quality of decision-making in asylum cases; the organization stresses the need for its improvement in this area. High level training of staff taking decisions in asylum cases is, of course, an important instrument to achieve this goal. The organization considers that it would be important for the Guidelines to stress that such training should be widely available; it should not only be offered to first instance asylum authorities but also to judges and other decision makers. As asylum and refugee law is constantly evolving, training should be continuous.

In this regard, the members of the Working Group may be aware that, within the framework of GDISC (General Directors' Immigration Service Conference), the European Commission has funded a project to develop a so-called European Asylum Curriculum. The aim is to develop a complete training system for government officials working with asylum issues in the EU Member States. The project, while currently in the initial phase, nonetheless is promising as it covers many of the issues relevant to improving quality of decision-making (including, interview techniques, country of origin information, evidence assessment, drafting and decision-making, exclusion and interviewing traumatised persons). Involvement of UNHCR, ECRE and the Odysseus Academic network are an important safeguard for the quality of the future training.

A concrete example of a project aiming at the improvement of the quality of decision-making in asylum procedures is the so-called "Quality Initiative" which UNHCR and the UK government have engaged in since 2004.²² The latter example has highlighted that training of asylum bodies alone is not sufficient to upgrade the quality of decision-making but that ongoing assistance and practical guidance of decision-makers are necessary in order to achieve this goal.

1 Amnesty International, Council of Europe: Briefing to the Working Group on Human Rights Protection in the Context of Accelerated Asylum Procedures (GT-DH-AS) 6th December (Ref: AI Index: IOR 61/024/2006) available at http://web.amnesty.org/library/index/engior610242006

2 See OJ 2005 L 326/13 http://eur-lex.europa.eu/LexUriServ/site/en/oj/2005/l_326/l_32620051213en00130034.pdf

3 See OJ 2003 L 50/1 http://eur-lex.europa.eu/LexUriServ/site/en/oj/2003/l_050/l_05020030225en00010010.pdf

4 See OJ 2004 L 304/12 http://eur-lex.europa.eu/LexUriServ/site/en/oj/2004/l_304/l_30420040930en00120023.pdf

5 Paragraph 7 of the Report of the 1st meeting of the WORKING GROUP ON HUMAN RIGHTS PROTECTION IN THE CONTEXT OF ACCELERATED ASYLUM PROCEDURES, GT-DH-AS(2006)003, 19 December 2006.

6 Paragraph 10 of the Report of the 1st meeting of the WORKING GROUP ON HUMAN RIGHTS PROTECTION IN THE CONTEXT OF ACCELERATED ASYLUM PROCEDURES, GT-DH-AS(2006)003, 19 December 2006.

7 Paragraph 9 of the Report of the 1st meeting of the WORKING GROUP ON HUMAN RIGHTS PROTECTION IN THE CONTEXT OF ACCELERATED ASYLUM PROCEDURES, GT-DH-AS(2006)003, 19 December 2006

8 See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the the 1967 Protocol relating to the Status of Refugees, Reedited, Geneva, January 1992, UNHCR 1979, par. 196, where it is acknowledged that 'in most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents'.

9 See Herliby, Scragg and Turner, Discrepancies in autobiographical memories: implications for the assessment of asylum seekers: repeated interviews study, available at http://www.bmj.com/cgi/content/abstract/324/7333/324 "The assumption that inconsistency of recall means that accounts have poor credibility is questionable. Discrepancies are likely to occur in repeated interviews. For refugees showing symptoms of high levels of post-traumatic stress, the length of the application process may also affect the number of discrepancies. Recall of details rated by the interviewee as peripheral to the account is more likely to be inconsistent than recall of details that are central to the account. Thus, such inconsistencies should not be relied on as indicating a lack of credibility." See also Juliet Cohen, Questions of Credibility: Omissions, Discrepancies and Errors of Recall in the Testimony of Asylum Seekers, International Journal of Refugee Law, 2002, at p. 308: "In the case of asylum seekers, especially, it is clear that great caution needs to be exercised in denying credibility. The normal variability of memory is likely to be exacerbated by the medical factors reviewed above and a general impairment of recall is to be expected as a result of their traumatic experiences and physical and mental state".

10 See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Reedited, Geneva, January 1992, UNHCR 1979, par. 98: 'A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority' and Excom conclusion No. 15 (XXX) of 1979 "(i) While asylum-seekers may be required to submit their asylum request within a certain time limit, failure to do so, or the non-fulfilment of other formal requirements, should not lead to an asylum request being excluded from consideration" available at http://www.unhcr.org/excom/EXCOM/3ae68c960.html

11 Paragraph 11 of the Report of the 1st meeting of the WORKING GROUP ON HUMAN RIGHTS PROTECTION IN THE CONTEXT OF ACCELERATED ASYLUM PROCEDURES, GT-DH-AS(2006)003, 19 December 2006.

12 The safe country of origin concept is equally problematic in light of Article 14 of the European Convention on Human Rights according to which the enjoyment of the rights and freedoms in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin.

13 This is totally in line with the reference to the "need for an individual assessment of the claim and in any event for an interview of each asylum seeker in a language he/she understands, and that he/she could have the opportunity to rebut the presumption of safety' in par. 12 of the December 2006 report of the Steering Committee for Human Rights.

14 Case C-133/06, European Parliament v Council of the European Union.

15 See European Court of Human Rights, T.I. v the United Kingdom, App. No 43844/98, Judgment of 7 March 2000.

16 Paragraph 15 of the Report of the 1st meeting of the WORKING GROUP ON HUMAN RIGHTS PROTECTION IN THE CONTEXT OF ACCELERATED ASYLUM PROCEDURES, GT-DH-AS(2006)003, 19 December 2006.

17 For further information on border monitoring see e.g. United States Commission on International Religious Freedom on US border monitoring http://www.uscirf.gov/mediaroom/press/2005/february/02072005%5Fuscirf.html

18 See also the firm confirmation of the right to an effective remedy in the context of an asylum application lodged in the 'waiting zone' of an airport, Affaire Gebremedhin c. France, Requête n° 25389/05, 26 avril 2007, par. 66 (only available in French).

19 Jabari v Turkey, Application No 40035/98 of 11 November 2000, par. 50.

20 Paragraph 21 of the Report of the 1st meeting of the WORKING GROUP ON HUMAN RIGHTS PROTECTION IN THE CONTEXT OF ACCELERATED ASYLUM PROCEDURES, GT-DH-AS (2006)003, 19 December 2006.

21 The EU asylum acquis only marginally deals with detention of asylum seekers, see for instance Article 18 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, establishing the principle that Member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum and must ensure a possibility of speedy judicial review where an applicant is held in detention and Article 7 of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers confirming in principle the right of asylum seekers to free movement within the territory of the Member State or an assigned area. In exceptional cases, for example for legal reasons or reasons of public order, Member States may 'confine' an applicant to a particular place in accordance with their national law.

22 See UNHCR, Quality Initiative Project. Third Report to the Minister, London Branch Office, March 2006. Available at http://www.ind.homeoffice.gov.uk.