26 April 2013

Five years of EU negotiations to try to improve and harmonise the treatment of refugees and asylum seekers across the EU are drawing to an end this week, as the European Parliament’s Committee on Civil Liberties (LIBE) has endorsed the text of the recast Asylum Procedures Directive and the Eurodac Regulation. While there are certain improvements, the resulting legislation provides an imperfect legal framework for a Common European Asylum System that still today only exists on paper.

Regarding the legislation agreed upon this week, the compromise on the recast Asylum Procedures Directive illustrates the difficulty of harmonising administrative procedures rooted in diverging and longstanding legal traditions. On the positive side, the final compromise constitutes progress on a number of procedural guarantees. For instance, all asylum seekers will now, in principle, have the right to be heard in an interview and to submit comments and clarifications after the interview and before a decision is taken on their claim. In addition, asylum seekers in an accelerated procedure must now at least be given the opportunity to request in court to stay in the territory while they appeal against a negative decision on their case. Moreover, standards with regard to safe country concepts have been slightly improved by more explicitly requiring that asylum seekers must be able to challenge the presumption of safety in their individual cases. However, EU legislation will still allow the use of widely diverging national lists of safe countries.

Other aspects of the Asylum Procedures Directive are disappointing, in particular with regard to the procedural guarantees for vulnerable groups such as unaccompanied children and victims of torture, who will not be exempt from accelerated and border procedures, making it more difficult for them to access asylum procedures and substantiate their application. Despite the fact that establishing stronger guarantees for vulnerable asylum seekers was one of the key objectives of the asylum package, the standards have been watered down throughout the process. Unsurprisingly perhaps, the obsession with so-called abuse has finally taken over and has prevented the institutions from agreeing on anything more than a re-packaged status quo.

Furthermore, no real progress has been made in strengthening the guarantees and removing obstacles for asylum seekers to have access to legal assistance in practice. This is paradoxical in times when asylum procedures have become so complex that access to quality legal assistance is almost indispensable in order to ensure that an asylum application is fully and properly examined and people are not returned to places where their lives are at risk. 

An agreement to provide police and other law enforcement agencies access to Eurodac, the database storing asylum seekers’ fingerprints, set up to help determine which Member State is responsible for the examination of an asylum application, has also been reached this week. This raises important questions relating to possible stigmatisation of an already vulnerable group as well as concerns as regards the possible risk for refugees and their families if information is shared with law enforcement agencies in the countries they are fleeing.

Both instruments, together with the recast Dublin Regulation and the Reception Conditions Directive are due for final adoption in June by the European Parliament and the Council.  One particular area of concern in the asylum package about to be formally adopted is the grounds for detention of asylum seekers that are so broadly defined that they risk encouraging the systematic detention of asylum seekers instead of making the practice truly exceptional.  A blatant example of the double standards applied to refugees is that while European governments publicly deplore the suffering inflicted on victims of violence and oppressive regimes, they often do not hesitate to detain them when they manage to reach Europe’s borders, disregarding the devastating effects on those detained.

The daunting task of translating this legal framework into humane asylum policies that respect the fundamental rights of asylum seekers in practice is now about to commence. Some provisions leave considerable margin for manoeuvre to Member States; some are close to being unreadable and extremely difficult to understand, which risks complicating transposition into national legislation as well as monitoring by the Commission and interpretation by the Courts.

States have now to do the right thing and give asylum seekers a fair chance to make their case, put an end to the detention of those fleeing persecution, and allow refugees to rebuild their lives and contribute to society. During this process, the monitoring role of the European Commission will have to be implemented to its fullest potential and civil society will need to step up its efforts to be the watchdog on asylum in Europe.

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This article originally appeared in the ECRE Weekly Bulletin of 26 April 2013
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