Dublin II

The relationship between safeguarding internal security and complying with international protection obligations and instruments

Introduction

The European Council on Refugees and Exiles (ECRE) is a network of some 70 non-governmental refugee-assisting organisations in 28 European countries. ECRE welcomes this opportunity to comment on the Commission Working Document on the relationship between safeguarding internal security and complying with international protection obligations and instruments (henceforth the ‘Document’).^¹

The Commission's Document analyses the existing legal mechanisms for excluding from international protection persons who do not deserve such protection, in particular those suspected of terrorist acts. It considers the legal steps that can be taken by governments following the exclusion of persons from the Refugee Convention and other forms of international protection.. It also outlines steps that need to be taken to ensure a common approach to the application of exclusion. The Document concludes by assessing the adequacy of the internal security related provisions in the EC legislation and (future) Commission Proposals for Directives in the asylum and immigration field.

The events of September 11^th have cast a shadow on EU justice and home affairs debates over recent months. ECRE recognises the legitimacy of EU Member States' efforts to ensure the security of populations in their countries. It however considers that in a climate of numerous challenges to asylum, the exclusion clauses of the Refugee Convention should not become another avenue by which deserving cases are denied access to international protection. Article 1 F of the Refugee Convention represents a limitation on a human rights provision. As such, it needs to be interpreted restrictively and after extreme caution has been exercised. This is indeed a point clearly stated in the Summary Conclusions of the UNHCR Lisbon Expert Roundtable on Exclusion from Refugee Status where it was concluded that "the exclusion clauses are of an exceptional nature and should be applied scrupulously and restrictively because of the potentially serious consequences of exclusion from refugee status for the individual concerned".^²

Against this context, ECRE warmly welcomes one of the main premises of the Commission Document "that bona fide refugees and asylum seekers should not become victims of recent events" as well as the recognition that " in practice terrorists are not likely to use the asylum channel much" and therefore "any security safeguard…needs to strike a proper balance with the refugee protection principles at stake".^³ We share the Commission's analysis that "automatic bars to accessing an asylum procedure even of suspected criminals…could result in refoulement". (paragraph 1.4.1). We fully endorse the Commission's recognition about the importance of making decisions on exclusion " within the asylum procedure, by the authority with expertise and training in refugee law and status determination, in the context of a comprehensive consideration of the refugee claim" (paragraph 1.4.3).

Notwithstanding, we are concerned that certain of the provisions of the Document do not reflect the tone of the aforementioned introductory remarks. In particular, we consider that the legislative framework and procedures proposed in relation to the application of exclusion might not be fully in line with international principles of refugee protection as enshrined in international human rights and refugee law. ECRE's key concerns relate to the following provisions:

Comments on the Articles are presented in greater detail below. They follow the order of the Proposal.

The Working Document rightly points out that "there is no internationally agreed definition of terrorism as yet". ECRE therefore views the debate on terrorism in the context of the application of Article 1F of the 1951 Convention with grave concern. This is in view of the fact that Article 1F does not mention terrorism as a separate exclusion ground. The exclusion clause is only to be applied if the committed offence amounts to a crime against peace or humanity, a war crime, a serious non-political crime or an act contrary to the purposes and principles of the United Nations. In the absence of an internationally agreed definition of terrorism which automatically brings certain terrorist acts within the realm of one or more of the exclusion clauses of the Refugee Convention, ECRE considers of paramount importance that EU Member States examine on a case by case basis whether the offences committed by asylum seekers accused of "terrorism" amount to one of the excludable crimes enlisted in Article 1F.

While ECRE welcomes the work of the European Union on combating terrorism and the European Arrest Warrant, it would like to stress that an EU common definition of terrorism will not replace the need for an international agreement on the definition of terrorism and on which terrorist acts fall automatically within the realm of Article 1F.

The definition of a "terrorist group" has been set out in Article 2 of Council Framework Decision on combating terrorism. The Council Common Position on the application of specific measures to combat terrorism adopted on 28 December 2001 includes a list in the Annex of groups or entities involved in terrorist acts. ECRE would argue that the concept of "terrorist group" as applied in this paragraph is not a term which could be used meaningfully in the application of Article 1F of the Refugee Convention. In ECRE's view, what has to be assessed is not whether the applicant is a member of a group that qualifies as terrorist but rather whether s/he is a member of a group that is responsible for the commission of acts that meet the criteria set out in Article 1F. In other words, it is the underlying offences committed by the group the applicant is a member of, rather than the fact that it is a "terrorist" group that should be the focus of Article 1F inquiry.

Furthermore, ECRE considers that "mere" membership in a group that is involved in the commission of excludable acts can not per se be sufficient for the application of the exclusion clause.^⁴ While recognising that "depending on the nature of the organisation, it is conceivable that membership of a certain organisation might be sufficient to provide a basis for exclusion",^⁵ the focus of an exclusion assessment should be on an individual's circumstances and in particular whether the claimant had close or direct responsibility or was actively associated with excludable acts, albeit committed by others, before membership suffices to exclude.^⁶ In establishing association in the commission of terrorist crimes, the Commission points out to the need to determine "that the person is still an actual, active, present and willing member" of a group. ECRE would argue that these criteria are partly misleading to the extent that they fail to amount to the personal and knowing participation that is required by the strictly restrictive modus of application of Article 1F.

The Commission Document states that "a review of cases based solely on the grounds of nationality, religion or political opinion is not considered appropriate". ECRE would like to highlight that such a review would not only be inappropriate but rather it would represent a blatant violation of the non-discrimination principle as prescribed in Article 3 of the Refugee Convention.

A re-examination of "closed files" of persons granted refugee status should be conducted in accordance with necessary legal and procedural safeguards.

ECRE welcomes the Document's position against "automatic bars to accessing an asylum procedure". We would like to question the view however that "channelling all asylum seekers through an asylum procedure…is also necessary from a practical security perspective…". This does not correspond to the notion put forward in the introduction of the Document that "in practice terrorists are not likely to use the asylum channel much, as other, illegal channels are more discreet and more suitable for their criminal practices". It also contradicts the assertion in paragraph 1.5.1 that " it is likely that only a relatively small number of cases" would require examination from specialised "Exclusion Units".

ECRE considers that the suspension of the examination of an asylum claim in the case of an extradition request or an indictment by an international criminal tribunal is acceptable under certain conditions. Firstly, a clear distinction needs to be made between "indicted asylum seekers" and those whose extradition is sought. In the case of the latter, no person should be extradited to a third country unless the country where the asylum application was lodged has firstly determined that the asylum seeker will not be exposed to torture, inhuman or degrading treatment by the state requesting the extradition within the meaning of Article 3 of the European Convention on Human Rights, Article 3 of the UN Convention against Torture and Article 7 of the International Covenant on Civil and Political Rights. Family members of an extradited person should have the right to submit a new asylum request and have it objectively considered. The extradition of a person should not be a relevant factor in the examination of his/her family members' asylum claim.

Secondly, ECRE would argue that clear procedural safeguards need to be provided that guarantee not only readmission following criminal prosecution to the country when an asylum application was originally lodged but also access for persons in this category to fair asylum procedures.

ECRE considers that admissibility procedures should solely be used to determine a) if the applicant has already found protection in another state (first country of asylum); or b) if the asylum application should be examined by a third state under the Dublin Convention or on third country grounds. Within this context ECRE is opposed to the dismissal of an asylum claim as "inadmissible" in cases of an indictment of an asylum applicant by an international criminal tribunal or of an extradition request from a third country other than the country of origin of the asylum applicant. In our view, the provisions of this paragraph seriously compromise necessary legal and procedural safeguards for refugee protection by curtailing the right of some asylum seekers to a substantive examination of their asylum application. Consequently, ECRE is opposed to the proposal made at 4.3.1 to amend Article 18 of the Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status. See also comments on paragraph 1.4.3.2.

The paragraph fails to provide a clear rationale why the country which has made an extradition request should be ultimately responsible for the examination of the asylum claim of the extradited person. It is also silent as to the provisions for the examination of asylum claims of applicants who have been extradited to a country outside the European Union.

ECRE would question the validity of the stated advantages of the approach proposed in this paragraph given the absence of evidence that clearly demonstrates that the filing of an asylum request can hinder "the possibilities for criminal prosecution of alleged criminals". As demonstrated in paragraph 1.4.2.1, it is possible to proceed with criminal prosecution through the freezing of an asylum application. We would finally disagree that this approach is an appropriate response to several UN General Assembly Resolutions on "Measures to Eliminate International Terrorism". Here we would like to highlight the wording of these Resolutions which refer to States taking appropriate measures "before considering to grant refugee status"- this implying after a substantive examination of the asylum claim has taken place and has led to a decision of inclusion - and therefore referring to the examination of the potential application of the exclusion clause in view of evidence of terrorist charges.

The Working Document proposes an accelerated asylum procedure for cases that "it has been prima facie established that someone falls under the scope of the exclusion clauses". ECRE is opposed to the channelling into accelerated procedures of applications for asylum in cases where state authorities consider that the exclusion clauses of Article 1F of the 1951 Geneva Convention may apply at a prima facie basis. Firstly, we are concerned that the Working Document does not provide any indication as what the test would entail for establishing whether someone falls prima facie under the scope of the exclusion clauses: what factors are to be considered, what would be the sources of evidence presented, at what stage in the process it would be decided that a claim is channelled through an accelerated procedure, whether there will be an opportunity for rebuttal. In view of the seriousness of any allegation of exclusion, ECRE would recommend against the use of the concept of prima facie grounds for exclusion.

Secondly, ECRE considers that even in cases suspected to fall within the scope of the exclusion clauses, there are a number of reasons why it is necessary that the possibility of exclusion should be dealt with within a regular procedure which allows the applicant the full opportunity to present his/her claim for inclusion. According to the general principle of procedural fairness, an individual has the right to present and the decision maker the obligation to consider all information relevant to a decision. Given the complex nature of Article 1F cases, full knowledge of all the facts could only emerge through a regular procedure which involves thorough examination of complex questions and the careful weighing of all relevant factors which should be integral to any exclusion decision. This is essential in view of the seriousness of the issues and the consequences of an incorrect decision.

Further, ECRE is perplexed by the suggestion in this paragraph that prima facie cases for exclusion "could be considered to allow for a dismissal of the asylum claim as being "manifestly unfounded". The notion of "manifestly unfounded" is legally and semantically linked to the examination of the presence of inclusion elements in an asylum claim, hence to the question whether the person concerned faces a well-founded fear of persecution in his country of origin. The focus of the enquiry for manifestly unfounded cases is whether the asylum claimant needs international protection. In the case of a claim falling within the scope of the exclusion clause, the applicant might need protection (and receive it under human rights law) but not deserve the protection status provided under the 1951 Convention. Section 140 of the UNHCR Handbook is clear on this point stating that that Article 1F "contains provisions whereby persons otherwise having the characteristics of refugees…are excluded from refugee status". Within this context, ECRE considers the linking of the notion of "manifestly unfounded" to exclusion considerations as rather alarming with potentially serious consequences for the individuals concerned.

ECRE recognises State concerns to strengthen national security in the aftermath of the events of 11^th of September. Rather than channelling though those cases suspected to fall within the scope of the exclusion clauses into the accelerated procedure, we would propose that States prioritise the examination of suspected cases within the regular procedure . Such examination could be undertaken by a specialised unit and should involve examination of both exclusion and inclusion grounds. It should be in accordance with procedural guarantees that are appropriate to the gravity of the task.

This proposal is in line with international standards as long as the units are an integral part of one competent authority considering exclusion as part of a process which allows applicants to present a claim for inclusion. Such Unit could be used as a reference point for decision makers or a member of the Unit could be present during asylum interviews asking questions, providing information or making submissions on the exclusion issues. The dealing of cases in those special units should be without prejudice to the asylum seeker's right to fair and efficient procedures to determine his claim.

Applicants should be entitled to disclosure of evidence used by such units in order that they have the opportunity to respond. That should include disclosure of "classified information" which should be subject to independent scrutiny.

Detention of persons during an asylum procedure which includes consideration of both inclusion and exclusion elements, may only be used in exceptional cases, and should carry full procedural safeguards in line with international guidelines on the detention of asylum seekers. Non-custodial measures, which are both more humane and more effective, such as reporting requirements should always be considered before resorting to detention. While the safeguarding of national security or public order may serve as a reason for the detention of an asylum seeker, the measure always has to withstand the proportionality test and is only to be applied if and when all other measures have been exhausted.

An absolute maximum duration for any detention should be specified in national law. Any review body should be independent from the detaining authorities.

Detainees should be given a clear understanding of the grounds for their detention and their rights while in detention. They should have unrestricted access to independent, qualified and free legal advice. They should have an opportunity to have their detention reviewed

Chapter 2: Legal follow up to the exclusion of persons from Refugee Convention status or other forms of international protection

ECRE views with grave concern the suggestion that the absolute nature of Article 3 of the European Convention on Human Rights might be reconsidered in the light of the events of September 11^th. The European Court of Human Rights has repeatedly found that no derogation is permissible from Article 3. ECRE would argue that there are no human rights advantages that can be envisaged by such a change. The result would be an increased risk of return to torture, inhuman and degrading treatment or death of asylum seekers against whom there was not enough evidence to bring a prosecution.

Here, ECRE would also like to stress that any discussion regarding derogation - for example in accordance with Article 15 of ECHR - would only be applicable in very rare cases where an immediate threat to national security could be established, thus by no means in all excludable cases. This very high standard needs to be maintained in all provisions regarding expulsion and extradition.

The Working Document states that extradition "must be considered legal when it is possible to obtain legal guarantees … addressing the concerns connected to the potential violations of the European Convention of Human Rights". ECRE would argue that in view of the absolute nature of guarantees provided by Article 3 of the European Convention on Human Rights and Article 3 of the Convention against Torture, it is questionable whether extradition can be considered legal if certain guarantees have been received by the states requesting extradition. As such, it considers this provision to be not in line with international standards.

For further information contact the European Council on Refugees and Exiles (ECRE) at:

See also, ECRE's Position on the Interpretation of Article 1 of the Refugee Convention (September 2000).

UNHCR Global Consultations on International Protection, Summary Conclusions, Exclusion from Refugee Status, Lisbon Expert Roundtable, 3-4 May 2001, paragraph 4.

Commission Working Document, The relationship between safeguarding internal security and complying with international protection obligations and instruments, Brussels, 05.12.2001, COM (2001) 743 final, Introduction.

Summary Conclusions, paragraph 18.

ibid

UNHCR Exclusion Clauses: Guidelines on their Application (December 1996) para. 40, 45, 47;