RESOLUTION A3-0337/92

The harmonization within the European Community of asylum law and policies

The European Parliament,

- having regard to the Universal Declaration of Human Rights of 10 December 1948, in particular Article 14, 'Everyone has a right to seek and to enjoy in other countries asylum from persecution',

- having regard to the Geneva Convention relating to the Status of Refugees of 1951 and the additional protocol of 1967, which have been ratified by all the Member States,

- having regard to Standard 3.36 of Annex 9 of the Chicago Treaty of 1944 on international aviation, under which no sanctions may be imposed on airlines except in cases of serious negligence which could constitute assisting illegal immigration,

- having regard to Article 13 of the European Convention on Human Rights, Council of Europe Recommendation 1/16 and paragraph 7 of the conclusions of the Executive Council of the UNHCR (EXCOMCONC No. 8/1977), which provide for suspension during the appeal procedure,

- having regard to the statement on Human Rights by the representatives of the Member States Governments in the Council of 21 July 1986,

- having regard to its earlier resolutions on the subject, in particular the resolution of 12 March 1987 on asylum laws and the resolution of 13 September 1991 on the free movement of persons and security within the Community, and its requests to the Council and Commission to put forward proposals for harmonising visa requirements, laws on aliens and the right of asylum and on the drawing up of a Common European policy on refugees,

- having regard to the particular efforts made by non-governmental organizations involved in refugee work, without which it would be impossible to provide housing and care for asylum seekers in the Member States of the Community and for local authorities to absorb a large number of refugees, with considerable administrative, social and financial cost to themselves,

- having regard to the resolutions and recommendations of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe on the legal and social treatment of asylum seekers,

- having regard to the White Paper of the Commission to the European Council on completing the Internal Market of June 1985, in which it announces that it will be proposing a directive on the coordination of provisions governing the right of asylum and refugee status not later than 1988, which has not been done so far,

- having regard to the fact that in pursuance of the goal of establishing a European Union the Community must as part of the continuing process towards integration prescribe harmonization in measures in the area of asylum law,

- having regard to the differing and frequently inadequate standards and procedures applied by the Member States in discharging their legal and humanitarian obligations to asylum seekers and refugees,

- having regard to the fact that a harmonized asylum policy must provide for the situation of de facto refugees, and that the persons concerned must always be guaranteed the right to submit an application for asylum and access to the procedure,

- having regard to the professed and reiterated wish of the Member States as expressed at successive European Councils to rectify this position by harmonising their approach to asylum,

- having regard to the Dublin Convention on the State responsible for the examination of an asylum application,

- having regard to the Articles K to K9 of the Treaty on European Union and the Declaration on Asylum in the Final Act,

- having regard to its resolution of 10 October 1990 on the findings of the Committee of Inquiry into racism and xenophobia,

- having regard to the second report of the Committee on Civil Liberties and Internal Affairs on the entry into force of the Schengen Agreements (A3-0336/92),

- having regard to the evidence at its public hearings, with representatives of the Parliaments of the Member States, the UNHCR and representatives of non-governmental organizations active in this field,

- having regard to the motion for a resolution by Mr Arbeloa Muru on applicants for asylum at European airports (B3-0630/92),

- having regard to Rule 121 of its Rules of Procedure,

- having regard to the report of the Committee on Civil Liberties and Internal Affairs and the opinion of the Committee on Social Affairs, Employment and the Working Environment (A3-0337/92),

A. whereas the Members States of the Community ought to set an example in terms of respect for human dignity,

B. whereas the preparation of a harmonized asylum policy for the European Community is for the most part in the hands of national officials and the executive, with little or no direct accountability to national parliaments and the European Parliament,

C. whereas it is only by invoking Article 100c of the EC Treaty that the Member States will ensure that their laws and practices in relation to asylum will be consistent and in accordance with Community law, with the appropriate degree of public accountability,

D. convinced that in discharge of its fundamental democratic role as the voice of the individual, it must vindicate the right of the asylum seeker and combat the abuse of the right of asylum,

E. convinced that the Member States should take more active measures to combat the underlying causes which result in refugees and should favour a policy of prevention which would hinder the development of refugee problems and be commensurate with the historical, political and economic responsibilities and significance of the Community and the Member States,

F. convinced that in the long term the refugee problem ought to be settled by economic and social progress and political stability in the refugees' countries of origin, and whereas the Community has a major role to play, particularly with regard to countries with which it has cooperation agreements,

G. convinced of the need for a common approach at European level to policies for the reception and active integration of asylum applicants,

1. Urges that the Member States implement the intent of the aforementioned Declaration on Asylum '... the Council will consider as a matter of priority questions concerning Member States' asylum policies with the aim of adopting at the beginning of 1993 common action to harmonize aspects of them' and that '... the Council will also consider by the end of 1993 on the basis of a report the possibility of applying Article K.9 to such matters';

2. Urges that the Member States at the next European Council formally re-iterate their commitment to the letter and the spirit of the Geneva Convention of 1951 and Protocol of 1967 including the role of the UNHCR, in accordance with the provisions of the European Convention on Human Rights;

3. Urges that the Commission assume greater responsibility and play a more active role in the area of asylum and refugee policy;

4. Urges that in operating their asylum policy the Member States cooperate with and when appropriate be guided by the UNHCR in accordance with the provision of Article 35 of the Geneva Convention;

5. Urges that the Member States also consult with existing NGOs working in the field of human rights and asylum law;

6. Urges that each Member State, if it has not already done so, acknowledge by national legislation and appropriate administrative instructions the right to seek asylum of those qualified under the Geneva Convention;

7. Urges that the legal code and procedures applicable to asylum seekers should

(a) ensure unfettered access to the territory and unfettered and automatic access to the procedures, even if the states concerned have arrangements based on a list of 'safe countries of origin',

(b) ensure a full and fair initial hearing,

(c) ensure the availability of free legal representation as a matter of course,

(d) ensure that the asylum seeker and his legal representative have access to the relevant documents,

(e) arrange for interpretation facilities,

(f) provide an appeal procedure on law or fact to a Court of Law, pending determination of which the applicant shall not be removed, except on grounds of national security or public order, and after judicial decision,

(g) ensure that a decision at first instance may not take longer than six months,

(h) ensure that legal remedy remains open and that no restrictions are placed on the guarantee of legal remedy,

(i) ensure access to UNHCR and to representatives of human rights organizations and those designated by the asylum seeker as trustworthy persons;

8. Urges that in order to determine refugee status on a consistent basis Member States have recourse to the UNHCR handbook on Procedures and Criteria for determining refugee status;

9. Urges that a group of experts from each of the Member States together with a representative of the Commission and the UNHCR be set up on an ad hoc basis to advise on cases which are novel;

10. Urges that a Book of Precedents of such cases be compiled and revised regularly and be available not only to all officials dealing with asylum applications, but also to human rights organizations and organizations for the defence of asylum seekers' interests; the right to protection of privacy must be guaranteed;

11. Urges that a European Committee on Asylum and Refugees (ECAR) be established with the task of providing preliminary rulings on questions of country of origin, ECAR should be composed of representatives of the Council, the Commission, UNHCR and legal experts. It shall draw up an annual report on its activities and submit it to the European Parliament, which will deliver an opinion thereon;

12. Urges that the ultimate power of decision on the interpretation of asylum law provisions in the Community Member States and the interpretation of the various conventions (the Convention on Human Rights and the Geneva Convention on Refugees) be transferred to an international court; this would make uniform treatment for asylum seekers in the various Member States possible in the long term;

13. Urges that the Member States take immediate steps to adopt a policy for the provision of protection to de facto refugees and setting out the conditions of their refuge, including as a minimum a humanitarian right to remain, pending the possibility of a return in safety and dignity to their country of origin;

14. Urges that the Commission, in order to deal with de facto refugees, submit proposals for consideration and approval by the European Parliament and Council;

15. Urges that the Member States and the Commission set up a mechanism charged with assisting economically and/or politically those countries with a potential to produce refugees with a view to addressing the root causes thereof and procuring durable solutions: to this end, the Commission and the Council, when negotiating trade and cooperation agreements with third countries, must insist that their partners in the agreement commit themselves to respecting the rights laid down in the European Convention on Human Rights and the Geneva Convention on Refugees and take verifiable measures to provide effective protection for minorities; undertakes to approve such agreements under the abovementioned conditions only;

16. Urges that all asylum seekers should have automatic and unfettered access to admission procedures in accordance with the spirit of the Geneva Convention, and that visa policies (and the utilization of so-called international zones) should not be an impediment to access to the procedures;

17. Urges that possible measures making carriers responsible where their passengers do not have the required documents must not be at variance with the provisions of Annex 9 of the 1944 Chicago Convention on International Civil Aviation, unless proof of gross negligence on the part of such companies can be established;

18. Urges that personnel involved in asylum admission should be trained and provided with up-to-date information according to common standards, with interchange between Member States and the use of the expertise of the UNHCR;

19. Urges that in the event of an influx of refugees, each Member State should take refugees in proportion to its capacity;

20. Calls on the Member States to accommodate the wishes of refugees in the choice of their preferred country of asylum in accordance with Recommendation 15 of the UNHCR Executive Committee;

21. Urges that arrangements be made and formalized for Member States to come to the assistance of one Member State which is receiving a large number of refugees;

22. Urges that reception measures should guarantee the safety, health and personal and physical integrity of asylum seekers; the detention of asylum seekers is, as a matter of principle, unacceptable except under exceptional circumstances, such as pending deportation or in case of appeal against rejection of an asylum application or rejected or manifestly unfounded asylum applications; the regulations laid down by the relevant UN organizations must be respected; the decision is a matter of ministerial responsibility and the person concerned must be able to appeal against this decision; provision should be made for regular evaluation (at two-weekly intervals at most) of the need for detention, and the person concerned cannot, under any circumstances, be held in penal custody;

23. Urges Member States to revise their plans for the centralized accommodation of asylum seekers and make full use of all decentralized accommodation options; 24. Urges that the Community and the Member States provide resources for humanitarian organizations, refugee initiatives and local authorities, in order to inform the residents of the local communities where asylum seekers are housed about the reasons why they have sought refuge and the human right of asylum;

25. Urges that, when dealing with a large number of manifestly unfounded asylum applicants, Member States shall provide sufficient personnel to ensure that all applicants be given full and normal access to the admission system and procedure, but with the possibility of a review procedure in a more simplified form, as speedily as possible and with a suspensory effect;

26. Urges that common criteria to determine what is a safe country of first asylum be drawn up and that the criteria be determined in consultation with the UNHCR;

27. Urges that the criteria referred to in paragraph 26 should as a minimum contain the following:

(a) ratification of and a history of respect for and compliance with the 1951 Convention and the main international human rights Conventions

(b) a willingness to accept returned asylum seekers and accord them basic humane conditions,

(c) the availability of due process;

28. Urges that Member States draw up common criteria and draw conclusions from the situation in the countries of origin provided they (the Member States) have at the same time commonly acknowledged that the presumption of safety may be rebutted at the suit of the applicant or on his behalf;

29. Urges that the notion of the safe country of origin should not be availed of until Member States agree common criteria for identifying such countries, which should include the following:

(a) adherence to and compliance with international human rights conventions

(b) membership of and accessibility for individuals to internationalorganizations with human rights responsibilities

(c) guarantees that the right of access to judicial procedure, the right of defence and the right of appeal will be respected;

30. Urges that the Member States should strengthen their investigative procedures and criminal sanctions against the menace of clandestine immigration networks;

31. Urges that before any Member State decides that cessation as contemplated by the Geneva Convention exists the Member States shall establish a common accord to that effect, having consulted the UNHCR;

32. Urges that the Member States and the Commission, in consultation with the European Parliament, and in the light of the Council declaration on asylum, establish a system for the exchange of information which will contribute to the efficiency and consistency of their asylum procedures, including where necessary the accumulation of personal data which however shall be subject to appropriate safeguards for the protection of the privacy of the applicant for asylum, his/her spouse and dependents and which information must be removed from all files once the right of asylum has been granted;

33. Urges that in setting up the centre for information, consultation and exchange of information ('clearing house'), as decided on 11 June 1992 at the meeting of the ministers responsible for immigration policy in Lisbon, the Member States guarantee the following principles:

- the clearing house should be given an independent status by the Member States and must also be able to collect information which is less welcome to certain government bodies, including data provided by private organizations;

- the clearing house must only collect and process information; under no circumstances must it be given the task of making preparations for the 'harmonization of asylum policy';

- collected data on which official decisions with regard to individuals are based should be equally accessible to the official body in question and to the person concerned or the person or body empowered to act for the person concerned;

- the information collected must be comprehensible, up-to-date and accurate;

- the clearing house may not gather information on individual asylum seekers;

- the operations of the clearing house must be monitored by the parliaments and all the information gathered must be accessible to the UNHCR and to experts in the field of asylum and refugee policy;

34. Urges that the Member States in dealing with rejected cases of asylum seekers shall do so in accordance with immigration policies and in cases where a request for asylum is refused shall facilitate early return to and in cooperation with the country of origin;

35. Recommends that the Council ensure that measures are taken in the Member States to grant an asylum seeker whose application has been recognized by the national authorities temporary assistance of a social nature;

36. Recommends that the Council ensure that measures are taken in the Member States to provide for the well-being of recognized refugees in accordance with the Geneva Convention;

37. Calls for specialist refugee aid organizations to receive financial support and to be consulted on asylum policy;

38. Instructs its President to forward this resolution to the Commission, the Council, the group of ministers responsible for the immigration policy of the Member States, the secretariats of the official consultative bodies referred to in this resolution, the governments and parliaments of the Member States, the Council of Europe and the UNHCR.