Protest over Proposed harmonisation of EU Asylum Laws

Date:    28 April 2004

Ref:      96/M/271

Mr Bertie Ahern

The Taoiseach and EU President

Government Buildings

Merron Street Upper

Dublin – 2

Protest over

Proposed harmonisation

of EU Asylum Laws

Return to designated safe third countries.

The proposed appeals procedure.

Detentions and enforced deportations.

We would like to add our voice of concern and protest over the proposed asylum laws being debated this week.  It is with regret that we note the widening gap between the draft directives and international law despite calls from the NGO community, the European Parliament, UNHCR, lawyers and leading academics.

May we respectfully remind you of:-

• the 1999 Tampere Conclusions :- ‘on the absolute respect for the right to seek asylum’ and the ‘full and inclusive application’ of the 1951 UN Refugee Convention. Certain proposed measures in the two directives constitute a clear breach of Member States’ obligations under the European Convention on Human Rights and the UN Refugee Convention.
• article 18 of the Charter of Fundamental Rights of the European Union, ‘The Right to Asylum’. It states, ’the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community’.
•  that the credibility of the EU with respect to human rights policy in external relations depends also on the conduct of its policy on human rights and fundamental freedoms within its own borders.

We are particularly concerned about the plight of Iranian asylum seekers and:

Return to designated safe third countries. The mere fact of transiting a particular country, in UNHCR’s view, cannot be considered a meaningful connection to justify the application of the safe third country concept. This would thereby create a real danger of indirect forced return of refugees to possible persecution in Iran in contravention of the 1951 Convention and other international human rights law instruments.” Connected to this, in an open letter to your office Ruud Lubbers warned that the criteria for determining the “safety” of a third country are “minimalist” and could lead to asylum seekers being sent back to countries that do not maintain basic human rights standards and where there is no guarantee their cases would be fairly and efficiently examined. This “could amount to an effective denial of the right to seek asylum under international law,” UNHCR said

The proposed appeals procedure. As the text stands, “the vast majority” of rejected asylum seekers who lodge an appeal will not be permitted to remain in the EU until their appeals are decided – despite the fact that in several European countries 30-60 percent of initial negative decisions are subsequently overturned on appeal. This is higher for Iranian asylum seekers. Article 39 of the text contains a list of wide-ranging exceptions to the principle that people should be allowed to remain while their appeals are being considered – exceptions “which have no relation to the merits of a person’s claim, but are based on technical or discretionary factors, or the claimant’s behaviour.” Ruud Lubbers letter noted “For example, persons may be removed pending appeal simply because they have been detained, or because they failed to make an application earlier. Such rules can badly prejudice refugees who are traumatized, confused or simply not properly informed about the asylum process.”

Detentions and enforced deportations. The use of detention prior to return must only be applied as a last resort and subject to effective review in a manner compatible with Article 5 of ECHR. Procedures to ensure that the physical integrity of returnees is maintained during removal proceedings and that the use of force is justified by a returnees’ own behaviour and no more than absolutely necessary should also be implemented.

We understand the crucial role the Presidency will play in the debate. It has no choice but to try and seek compromise and reach agreements, but agreement should not be found at the expense of adequate protection for refugees and other persons in need of international protection. The cumulative effect of these proposed measures is that the EU will greatly increase the chances of real refugees being forced back to their home countries. This will be hard to track, because the forced return may take place via a chain of countries, but that does not mean it will not happen.

It is of great concern that European Commission has expressed its satisfaction that the standards due to be agreed are consistent with international obligations. We urge you not to allow the proposed harmonisation of EU asylum laws which are in contravention of international laws to go ahead at the expense of the asylum seekers rights accorded to them in the 1951 Geneva Convention.

Respectfully yours

Dr Hossein Ladjevardi

President, ACI