House of Lords - European Union

Select Committee on European Union Tenth Report

CHAPTER 4: Asylum

16. The Hague Programme calls for the development of the second phase of a Common European Asylum System (CEAS). This would follow the adoption of the "minimum standards" instruments in the first phase asylum package (including measures on the definition of a refugee, reception conditions and asylum procedures) and should result in the establishment of a common asylum procedure in the EU and a uniform refugee status. The Programme calls for an evaluation of the first stage measures prior to embarking on the second stage. Our witnesses welcomed the evaluation of the first-stage measures. According to ILPA such evaluation was "crucial",[23] while JUSTICE emphasised the need for respect of international refugee law and human rights standards.[24] The Government also welcomed evaluation as a step to be taken before proceeding with the second phase of the CEAS.[25] However, the final element in the first phase package, the Procedures Directive, has not been formally adopted yet and will not come into force until 2007 at the earliest. Evaluation cannot meaningfully begin until there is a record of implementation capable of evaluation.

17. Calls for evaluation of the agreed EU minimum standards on asylum were linked with strong criticism by several of our witnesses of the low standards adopted by some Member States so far. According to Amnesty, "we have witnessed the adoption of a very low common denominator of minimum standards that allows Member States to continue competing with their restrictive policies and that in some respects breach international law".[26] These concerns, directed in particular at the Asylum Procedures Directive, were also shared by ILPA[27] and JUSTICE.[28] Both organisations stressed the need to include high standards of protection in the second stage of the CEAS—with ILPA calling for "common high standards, rather than common low standards".[29] The Government on the other hand considered that the fact that Member States had reached common ground on these measures was itself important.[30]

18. We fully share our witnesses' concerns regarding some of the standards adopted in the first stage of EU asylum measures. The Committee has repeatedly highlighted in its reports the danger of Member States reaching agreement on the basis of the lowest common denominator, which would not provide an adequate level of protection for asylum seekers and could jeopardise existing levels of protection in those Member States currently observing higher standards than those required by the EU. We believe that a detailed evaluation of the implementation of these instruments is essential to ensure that it is consistent with international human rights and refugee law standards.[31]

19. A central question in the development of a Common European Asylum System is how far it is desirable and/or feasible for Member States to harmonise their asylum systems. The Hague Programme calls for the adoption before the end of 2010 of "a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection". In its paper Refugees: Renewing the vision,[32] the Refugee Council welcomed this approach, calling for a "single, simple procedure" for all people seeking protection in the EU.[33] Most of our witnesses accepted the move to the second stage of the CEAS envisaged by the Hague Programme, but called for the adoption of higher standards (see above). The Law Society was more sceptical of the creation of a uniform refugee status in the EU, but stressed the need to protect due process and access to justice for the asylum seeker in the development of EU legislation in this field.[34] We believe that the concept of a Common European Asylum System, which has been a central objective of JHA policy since Tampere, remains valid to ensure consistent standards across the EU and to prevent "asylum shopping".[35]

20. However, in view of the difficulties in reaching agreement on minimum standards in the first place, and the tendency to adopt the lowest common denominator, we questioned the Programme's ambition to achieve a CEAS by 2010. Ms Flint said that the 2010 deadline "was probably unrealistic".[36] The Government's view was that "to have a system whereby there is one form of processing applicable to all is not something that would work"— emphasis should be placed on implementation and evaluation.[37] Despite their willingness to take part in the first stage of the EU asylum system, the Government appear to be reluctant to move towards the development of the second stage[38]perhaps because decision-making in these areas has moved, from 1 January 2005, from unanimity to qualified majority voting. The impact of the change in the voting procedures in the Council on the development of the CEAS remains to be seen. We agree with the Government that proper evaluation of the first stage is essential before embarking on consideration of second stage measures and that the deadline of 2010 is probably too ambitious. We believe that that evaluation should be carried out by an independent body of experts, whose findings should be published. It is essential that any new EU standards on asylum should ensure a high level of protection in accordance with international human rights and refugee law.

21. The Hague Programme also invites the Commission to present a feasibility study on the joint processing of asylum applications within the Union. This would entail a move away from the processing of asylum applications nationally to more centralised forms of processing. The Committee examined this option in its Report on extra-territorial asylum processing[39] and rejected the idea of joint processing of asylum applications in the EU on legal, human rights, practical and financial grounds. We do not believe that joint processing of asylum applications in the EU is the right way forward. In our view, regardless of the level of harmonisation reached in the EU, the key lies with improving the asylum process and decision-making in Member States. UNHCR highlighted this point in its evidence, which stressed that "the harmonisation of asylum systems necessitates more than the adoption of common rulesit requires the introduction of measures to improve the quality of asylum decision-making across the 25 Member States".[40] UNHCR referred to the "Quality Initiative"—a joint project it runs with the Home Office, which it recommends that the Government promote during the United Kingdom's Presidency of the EU.[41] Ms Flint told us that in principle she could agree to that.[42] We welcome this approach and will monitor its progress during the Presidency.

A European Asylum Office

22. The Hague Programme calls for the facilitation of practical co-operation between the national asylum services of Member States culminating in the creation, after a common asylum procedure has been established, of a "European support office for all forms of co-operation between Member States relating to the CEAS". There are many views on what the powers and tasks of this Office should be. UNHCR said that it would support a European Asylum Office, as an institutional mechanism to provide advice and co-ordinate practical harmonisation and burden-sharing efforts, drawing input from governmental and non-governmental sources.[43] ILPA envisaged the European Asylum Office as a system of audit and evaluation, not by Member States but by independent observers.[44] The Government saw some benefit in the pooling of information and sharing of practice and expertise across the EU, but were against the Office becoming a common point for the processing of asylum applications.[45]

23. We believe that a European Asylum Office could assist practical co-operation between national asylum authorities, through the exchange of information and best practice. In our Report on extra-territorial asylum processing we recommended the establishment of an independent documentation centre managed on an EU basis.[46] The European Asylum Office could take on this role in co-operation with UNHCR. We see less value in the Office taking the role of an auditing/evaluating body. This could cause unnecessary duplication with the work of other structures specifically established to evaluate the implementation of EU measures in the JHA field. Still less should the Office develop a centralised decision-making role.

Extra-territorial processing

24. While making no specific proposals on extra-territorial asylum processing, the Hague Programme calls for an evaluation of existing arrangements and for studies looking at joint processing of asylum applications outside the EU. The prospect of processing asylum claims directed at Member States outside the EU was rejected almost unanimously by our witnesses. The Law Society expressed concern about difficulties in the applicants' access to legal advice and representation;[47] JUSTICE was "not persuaded" by proposals on such studies, noting that there was no justification for the inclusion of such a reference in the Programme;[48] and ILPA agreed. It noted that the idea was "highly ambiguous" and pointed to various studies, including by the Commission, which questioned the feasibility, practicality and legality of extra-territorial processing.[49] The Committee shares this view. We highlighted all these concerns in our Report Handling EU Asylum Claims: New Approaches Examined.[50] We believe that studies on extra-territorial processing are a distraction from the central objective of improving asylum procedures in Member States.