Position Paper Proposed Recast of the Qualification Directive and the Asylum Procedures Directive

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  • 8/9/2019 Position Paper Proposed Recast of the Qualification Directive and the Asylum Procedures Directive

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    Rue Belliard 65. Box 7, B-1040 Brussels.Tel: +32 (0)2 235 06 80 Fax: +32 (0)2 230 54 64Mail: [email protected]

    Brussels, 25 May 2010

    Subject: Proposal for a Directive on minimum standards for the qualification andstatus of third country nationals or stateless persons as beneficiaries ofinternational protection and the content of the protection granted(Qualification Directive)

    Proposal for a Directive on minimum standards on procedures in MemberStates for granting and withdrawing international protection(Asylum Procedures Directive)

    Opinion of the National Red Cross Societies of the Member States of the European Union*

    and the International Federation of Red Cross and Red Crescent Societies

    The European Union National Red Cross Societies welcome the European Commissionsproposals recasting the Qualification Directive

    1and the Asylum Procedures Directive

    2. Together,

    these two directives provide the cornerstone in building a Common European Asylum System,which is firmly based on the common and universal values on which the Union is founded.

    At present the European Union is still far from effectively establishing a common protection areain which persons in need of international protection are guaranteed access to fair and properasylum procedures under equivalent conditions in all Member States. The current system has, aswe have previously noted, turned European asylum into a protection lottery, leaving manyvulnerable asylum seekers without access to an adequate level of protection and assistance

    3.

    We therefore strongly support the main objectives of the Commissions proposals: to ensurehigher and further harmonized protection standards and to ensure higher and more coherentstandards on procedures for granting and withdrawing international protection.

    In the present paper we reiterate our position on the establishment of a Common EuropeanAsylum System (CEAS) and offer detailed comments on the two proposals.

    For additional comments, we refer to our position paper on the European Commissions PolicyPlan on Asylum, which also covers other aspects of the CEAS, including reception conditions, theDublin system and solidarity within and beyond the EU. As regards practical cooperation in thefield of asylum, it underlines inter alia the need to guarantee equal access to professionally andobjectively researched country of origin information and highlights the potential role of theEuropean Asylum Support Office in helping to ensure consistent high quality decision-making in all

    * Including the Norwegian Red Cross and the Swiss Red Cross as members of the Red Cross/EU Office1Proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and

    status of third country nationals or stateless persons as beneficiaries of international protection and the content of theprotection granted (Recast), COM(2009) 551 final, Commission of the European Communities, 2009 (www.europa.eu)2Proposal for a Directive of the European Parliament and of the Councilon minimum standards on procedures in Member

    States for granting and withdrawing international protection (Recast), COM(2009) 554 final, Commission of the EuropeanCommunities, 2009 (www.europa.eu)3

    Position paperEuropean Commission Green Paper on the future Common European Asylum System, Red Cross/EUOffice, 2007 (www.redcross-eu.net)

    http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDFhttp://www.europa.eu/http://www.europa.eu/http://www.europa.eu/http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0554:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0554:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0554:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0554:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0554:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0554:FIN:EN:PDFhttp://www.europa.eu/http://www.europa.eu/http://www.europa.eu/http://www.redcross-eu.net/B/uploaded/809_Future%20Common%20European%20Asylum%20System.pdfhttp://www.redcross-eu.net/B/uploaded/809_Future%20Common%20European%20Asylum%20System.pdfhttp://www.redcross-eu.net/B/uploaded/809_Future%20Common%20European%20Asylum%20System.pdfhttp://www.redcross-eu.net/http://www.redcross-eu.net/http://www.redcross-eu.net/http://www.redcross-eu.net/http://www.redcross-eu.net/B/uploaded/809_Future%20Common%20European%20Asylum%20System.pdfhttp://www.europa.eu/http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0554:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0554:FIN:EN:PDFhttp://www.europa.eu/http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0551:FIN:EN:PDF
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    Member States. The paper also proposes the establishment of a Common Asylum Court of Appealas part of the European Court of Justice in order to ensure uniform interpretation and applicationof EU asylum law.

    4

    As National Red Cross Societies we are part of the International Red Cross and Red CrescentMovement the world's largest humanitarian network. We act as auxiliaries to the publicauthorities in the humanitarian field and are committed to address the needs and vulnerabilities ofasylum seekers and other migrants in order better to protect, support and assist them. Wepromote respect for their rights and needs, and deliver needs-based services. We therefore urgeall EU Member States to ensure that National Societies have unconditional access to vulnerablemigrants regardless of their status for the purposes of providing humanitarian assistance.

    5

    A Common European Asylum System

    As set out in the Stockholm Programme, adopted by the European Council on 11 December 2009,the establishment of a Common European Asylum System by 2012 remains a key policyobjective for the EU. The Stockholm Programmereaffirms the European Councils commitment toestablish a common area of protection and solidarity based on a common asylum procedure anda uniform status for those granted international protection, with the objective of ensuring that

    similar cases should be treated alike and result in the same outcome.

    6

    As further recognized by the European Council in the European Pact on Immigration and Asylum,the time has come to take new initiatives to complete the CEAS and thus to offer a higherdegree of protection, as proposed by the Commission in its Policy Plan on Asylum.

    7

    As underlined by the Future Group, in a common space based on the respect of fundamentalrights, it is not admissible that the national application of one of them, the right to asylum

    8, varies

    so much between the Member States. Moreover, as the Future Grouphas also pointed out, andas acknowledged in the European Pact on Immigration and Asylum, the EU has to ensure thatthose with a genuine right to asylum are able to claim it.

    9

    The European Union National Red Cross Societies remain insistent that European governmentsfully respect the rights of all asylum seekers and other migrants, including in particular respect forand due application of the principle of non-refoulementand the provisions of the 1951 RefugeeConvention and its 1967 Protocol, and implementation by governments of all their internationaland national legal and human rights obligations.

    10

    In this context, we acknowledge the need to establish a Common European Asylum System thatupholds humane reception standards and safeguards the right to seek and to enjoy asylumthrough fair and proper asylum proceduresin all Member States. While underlining the imperativeof guaranteeing effective access to asylumin the European Union, we support the objectives andthe strategy proposed by the European Commission in the Policy Plan on Asylum.

    4Position paperEuropean Commission Policy Plan on Asylum, Red Cross/EU Office, 2008 (www.redcross-eu.net)

    5The Istanbul Commitments, adopted by the 7th European Regional Conference of the International Federation of Red

    Cross and Red Crescent Societies, 2007 (www.ifrc.org)6The Stockholm Programme An open and secure Europe serving and protecting the citizens, 17024/09, Council of the

    European Union, 2009 (www.consilium.europa.eu)7European Pact on Immigration and Asylum, 13440/08, Council of the European Union, 2008 (www.consilium.europa.eu)

    8According to the EU Charter of Fundamental Rights, 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 andin accordance with the Treaty establishing the European Community (Article 18 Right to asylum).9Freedom, Security, Privacy - European Home Affairs in an open world, Report of the Informal High Level Advisory Groupon the Future of European Home Affairs Policy (The Future Group), 11657/08, Council of the European Union, 2008(www.consilium.europa.eu)10

    The Istanbul Commitments, adopted by the 7th

    European Regional Conference of the International Federation of RedCross and Red Crescent Societies, 2007 (www.ifrc.org).

    http://www.redcross-eu.net/B/uploaded/1070_Position%20paper%20Policy%20Plan%20on%20Asylum.pdfhttp://www.redcross-eu.net/B/uploaded/1070_Position%20paper%20Policy%20Plan%20on%20Asylum.pdfhttp://www.redcross-eu.net/B/uploaded/1070_Position%20paper%20Policy%20Plan%20on%20Asylum.pdfhttp://www.redcross-eu.net/http://www.redcross-eu.net/http://www.redcross-eu.net/http://www.ifrc.org/Docs/pubs/events/istanbul07/Istanbul-Commitments.pdfhttp://www.ifrc.org/Docs/pubs/events/istanbul07/Istanbul-Commitments.pdfhttp://www.ifrc.org/Docs/pubs/events/istanbul07/Istanbul-Commitments.pdfhttp://www.ifrc.org/http://www.ifrc.org/http://www.ifrc.org/http://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://www.consilium.europa.eu/http://www.consilium.europa.eu/http://www.consilium.europa.eu/http://register.consilium.europa.eu/pdf/en/08/st13/st13440.en08.pdfhttp://register.consilium.europa.eu/pdf/en/08/st13/st13440.en08.pdfhttp://register.consilium.europa.eu/pdf/en/08/st13/st13440.en08.pdfhttp://www.consilium.europa.eu/http://www.consilium.europa.eu/http://www.consilium.europa.eu/http://register.consilium.europa.eu/pdf/en/08/st11/st11657.en08.pdfhttp://register.consilium.europa.eu/pdf/en/08/st11/st11657.en08.pdfhttp://register.consilium.europa.eu/pdf/en/08/st11/st11657.en08.pdfhttp://www.consilium.europa.eu/http://www.consilium.europa.eu/http://www.consilium.europa.eu/http://www.ifrc.org/Docs/pubs/events/istanbul07/Istanbul-Commitments.pdfhttp://www.ifrc.org/Docs/pubs/events/istanbul07/Istanbul-Commitments.pdfhttp://www.ifrc.org/Docs/pubs/events/istanbul07/Istanbul-Commitments.pdfhttp://www.ifrc.org/http://www.ifrc.org/http://www.ifrc.org/http://www.ifrc.org/http://www.ifrc.org/Docs/pubs/events/istanbul07/Istanbul-Commitments.pdfhttp://www.consilium.europa.eu/http://register.consilium.europa.eu/pdf/en/08/st11/st11657.en08.pdfhttp://www.consilium.europa.eu/http://register.consilium.europa.eu/pdf/en/08/st13/st13440.en08.pdfhttp://www.consilium.europa.eu/http://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://www.ifrc.org/http://www.ifrc.org/Docs/pubs/events/istanbul07/Istanbul-Commitments.pdfhttp://www.redcross-eu.net/http://www.redcross-eu.net/B/uploaded/1070_Position%20paper%20Policy%20Plan%20on%20Asylum.pdf
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    A Common European Asylum System must ensure that international protection in the EU isaccessible and, as stated by the Commission, that asylum seekers are treated in the same way,with the same high-standard guarantees and procedures, wherever in the EU they make theirasylum claim. In addition to creating a common area of protection, this requires measuresfacilitating the arrival of asylum seekers on the territory of the Members States with a view toproviding legal and safe access to protection in the European Union.

    11

    The Qualification Directive

    We endorse the proposed amendments to the Qualification Directive that by clarifying andstrengthening the current provisions aim at ensuring higher and further harmonized protectionstandards as regards the groundsof international protection in the European Union.

    Ensuring full and inclusive application of the 1951 Refugee Convention and its 1967 Protocolremains central to the development of a Common European Asylum System, as reconfirmed in theStockholm Programme

    12.

    Whereas subsidiary protection should be complementary and additional to refugee protection, itmust nevertheless offer an adequate level of protection to persons in need of international

    protection who do not qualify as refugees in accordance with the directive. We regret, therefore,that the Commission has not found it necessary to propose amendments that would clarify Article15(c), which defines serious harm as serious and individual threat to a civilian's life or person byreason of indiscriminate violence in situations of international or internal armed conflict.

    While, as noted by the European Commission, the requirement of the ex istence of a serious andindividual threat was interpreted by the European Court of Justice in its judgment of 17 February2009, the requirement of the existence of an international or internal armed conflict remainsproblematic as the failure of national courts to interpret it correctly has resulted in a protection gap.

    In order to guarantee that no one in need of protection from serious harm due to indiscriminateviolence is denied international protection, the wording in situations of international or internalarmed conflict should be deleted or considered as an exemplification rather than as arequirement. Alternatively, if the armed conflict requirement is to be maintained, the directiveneeds to be amended with a view to ensure that it is implemented and applied in conformity withrelevant international law, including case-law

    13.

    In this context, it is also useful recall the Commissions intention to launch a study on the possiblealignment of national types of protection status not yet covered by the Qualification Directive

    14. A

    comprehensive study should also examine emerging and hitherto neglected situations which couldgive rise to international protection needs, with a view to ensure that EU law in the future alsoprovides adequate protection for persons displaced by inter aliaenvironmental degradation.

    As regards the content of international protection, the amendments proposed by the EuropeanCommission aim at approximating the rights granted to the two categories of beneficiaries of

    11Policy Plan on Asylum - An integrated approach to protection across the EU, COM(2008) 360 final, Commission of theEuropean Communities, 2008 (www.europa.eu)12

    The Stockholm Programme An open and secure Europe serving and protecting the citizens, 17024/09, Council of theEuropean Union, 2009 (www.consilium.europa.eu)13

    In applying the Qualification Directive, the authorities in some Member States have referred to the scope of application ofthe 1977 Additional Protocol IIto the 1949 Geneva Conventions in order to define the term "internal armed conflict". Whilethere is no single agreed definition of non-international armed conflict in treaty law, the main sources of interpretation areCommon Article 3of the 1949 Geneva Conventions and relevant international jurisprudence, such as the case-law of theInternational Criminal Tribunal for the former Yugoslavia (ICTY). SeeHow is the Term "Armed Conflict" Defined inInternational Humanitarian Law?, Opinion Paper, ICRC, 2008 (www.icrc.org).14

    Policy Plan on Asylum - An integrated approach to protection across the EU, COM(2008) 360 final, Commission of theEuropean Communities, 2008 (www.europa.eu)

    http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0360:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0360:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0360:FIN:EN:PDFhttp://www.europa.eu/http://www.europa.eu/http://www.europa.eu/http://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://www.consilium.europa.eu/http://www.consilium.europa.eu/http://www.consilium.europa.eu/http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdfhttp://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdfhttp://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdfhttp://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdfhttp://www.icrc.org/http://www.icrc.org/http://www.icrc.org/http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0360:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0360:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0360:FIN:EN:PDFhttp://www.europa.eu/http://www.europa.eu/http://www.europa.eu/http://www.europa.eu/http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0360:FIN:EN:PDFhttp://www.icrc.org/http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdfhttp://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper-armed-conflict.pdfhttp://www.consilium.europa.eu/http://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://www.europa.eu/http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0360:FIN:EN:PDF
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    protection (i.e. refugees and beneficiaries of subsidiary protection), while the StockholmProgrammecalls for a uniform status for those granted international protection.

    We support the introduction of a single uniform status for all persons eligible for internationalprotection in the EU, building as far as possible on the rules and standards pertaining to refugeestatus in accordance with 1951 Refugee Convention and its 1967 Protocol, and ensuring timelyfamily reunification and equal accessto e.g. health and social care, education and training, socialassistance and accommodation, and to the labour market.

    We regret that the definition of family members fails to take into account family ties formed duringflight or in the asylum country. While the Qualification Directiveonly covers family members whoare present in the same Member State as the beneficiary of international protection, it is ourposition that the right to family reunificationin the EU should be strengthened and enshrined in theuniform protection status, putting an end to diverging practices and obliging Member States toauthorise and facilitate the entry and residence of family members.

    15

    Promoting good health should be a matter of priority after protection status has been granted aswell as during the asylum procedure. Beneficiaries of international protection who have beensubjected to severe health threats before and during their flight need care that is appropriate totheir needs. Specialist resources are required for the treatment of severely traumatised persons.

    We further support appropriate measures that, in line with the Commissions suggestions, preventdiscrimination and facilitate access to education, vocational training, employment andaccommodation as well as to language training and other targeted integration activities, and whichtake due account of the situation and needs of beneficiaries of international protection, includingparticularly vulnerable

    persons

    16.

    The Asylum Procedures Directive

    We endorse the proposed amendments to Asylum Procedures Directive that aim at ensuringhigher and more coherent standards on procedures for granting and withdrawing internationalprotection in the European Union. We welcome the establishment of a single asylum procedureand the clarification that the directive also applies to Dublin cases.

    A common asylum procedure must ensure that asylum seekers are guaranteed adequateexaminationof their protection needs. To this end, all public officials that come into contact withpersons seeking international protection should receive proper training. As set out in theStockholm Programme, it is crucial that individuals, regardless of the Member State in which theirapplication for asylum is lodged, are offered [] the same level as regards proceduralarrangements and status determination

    17.

    Asylum seekers are typically in a vulnerable situation. Common provisions on access to theasylum procedure, which ensure equal access to procedures throughout the Union, must take thisinto account, not creating unnecessary legal or practical obstacles, such as undue time limits forapplication or allowing designation of locations where an application can be lodged in a way thatreduces availability. Admissibility or border procedures that impede access must be reconsidered,

    allowing for effective access and proper procedural guarantees. All asylum seekers should havethe right to an efficient remedy. Critically, asylum seekers must be informed about their rights and

    15The right to family reunification is recognised by EU law (Article 1 Family Reunification Directive) and must be applied in

    conformity with inter aliathe fundamental right to respect for family life (Article 7 EU Charter of Fundamental Rights); seePosition paper"Freedom, Security and Justice: What will be the future?" Consultation on priorities of the European Unionfor the next five years (2010-2014), Red Cross/EU Office, 2008 (www.redcross-eu.net)16

    E.g. traumatised persons, victims of torture and ill treatment, victims of human trafficking, unaccompanied or separatedminors, people with disabilities, pregnant women, elderly persons, etc.17

    The Stockholm Programme An open and secure Europe serving and protecting the citizens, 17024/09, Council of theEuropean Union, 2009 (www.consilium.europa.eu)

    http://www.redcross-eu.net/B/uploaded/1103_Position%20paper%20on%20the%20future%20priorities%20of%20the%20EU%20in%20the%20area%20of%20freedom,%20security%20and%20justice.pdfhttp://www.redcross-eu.net/B/uploaded/1103_Position%20paper%20on%20the%20future%20priorities%20of%20the%20EU%20in%20the%20area%20of%20freedom,%20security%20and%20justice.pdfhttp://www.redcross-eu.net/B/uploaded/1103_Position%20paper%20on%20the%20future%20priorities%20of%20the%20EU%20in%20the%20area%20of%20freedom,%20security%20and%20justice.pdfhttp://www.redcross-eu.net/B/uploaded/1103_Position%20paper%20on%20the%20future%20priorities%20of%20the%20EU%20in%20the%20area%20of%20freedom,%20security%20and%20justice.pdfhttp://www.redcross-eu.net/B/uploaded/1103_Position%20paper%20on%20the%20future%20priorities%20of%20the%20EU%20in%20the%20area%20of%20freedom,%20security%20and%20justice.pdfhttp://www.redcross-eu.net/B/uploaded/1103_Position%20paper%20on%20the%20future%20priorities%20of%20the%20EU%20in%20the%20area%20of%20freedom,%20security%20and%20justice.pdfhttp://www.redcross-eu.net/http://www.redcross-eu.net/http://www.redcross-eu.net/http://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://www.consilium.europa.eu/http://www.consilium.europa.eu/http://www.consilium.europa.eu/http://www.consilium.europa.eu/http://register.consilium.europa.eu/pdf/en/09/st17/st17024.en09.pdfhttp://www.redcross-eu.net/http://www.redcross-eu.net/B/uploaded/1103_Position%20paper%20on%20the%20future%20priorities%20of%20the%20EU%20in%20the%20area%20of%20freedom,%20security%20and%20justice.pdfhttp://www.redcross-eu.net/B/uploaded/1103_Position%20paper%20on%20the%20future%20priorities%20of%20the%20EU%20in%20the%20area%20of%20freedom,%20security%20and%20justice.pdf
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    the requirements of the asylum procedure. They should also have the right to remain in the asylumcountry (i.e. appeals must have suspensive effect) throughout the whole procedure.

    Existing notions and procedural devices which undermine the individual examination of asylumapplications should be abolished. All claims are unique and should accordingly be processedindividually and considered on their individual merits without resort to generalised assessmentsbased on e.g. nationality. Any measures to address possible abuse of the asylum procedure mustbe designed as to not infringe on the right to seek and enjoy asylum.

    A single, common procedure must be efficient, avoiding negative consequences of long andunwarranted waiting periods on asylum seekers health and well-being. To this end, there shouldbe clear and uniform time limits for the authorities within which they have to decide on an asylumapplication. At the same time, time limits must not in any way set aside other legal guarantees.There must always be a balance between efficiency and the legal rights of the individual.

    The rules regarding detention are unclear. They are found in several legal acts the AsylumProcedures Directive, the Reception Directive and the Return Directive and implementeddepending on in which stage/phase in the asylum procedure the applicant is. To be predictableand easy to grasp, we think that the rules on detention of asylum seekers should be stated in onlyone directive, tentatively the Asylum Procedures Directive, and be applicable in all different

    situations where detention may be considered.18

    Particularly vulnerable

    applicants with special needs must be given legal guarantees thatsafeguards adequate examination of their international protection needs. For example, specialguarantees should include the right to choose an interpreter of the same sex and that adequatetime is given for trauma victims to present their application.

    Asylum claims from all members of a family should be examined, determined and recorded in thedecision. Children have a right to be heard and express their view, and should be given anopportunity for a personal interview where age and maturity permits, by professional staff trainedin child protection and child-specific issues. An asylum interview with the parents or anotherperson considered legal custodian of the child must include an investigation of the childs situationand any independent asylum claim.

    Finally, we would like to underline that a personal and individual interview must be mandatory forall types of procedures. Cost-free assistance of a legal representative with necessary expertiseshould be granted to all asylum seekers, during all stages of the asylum procedure until a finaldecision on international protection has been taken or until the asylum seeker has left the territoryof the asylum country. The legal representative should be present at the personal interview, andbe given adequate time, information and resources, such as access to the same country of origininformation as the authorities. Asylum seekers should be entitled to the services of a qualifiedinterpreter, and all communication should be in a language that he/she understands and speaks.They should also have the right to contact organisations that assist asylum seekers.

    _____

    This position paper has been prepared by the Red Cross/EU Office, which represents the NationalRed Cross Societies of the EU Member States and the International Federation of Red Cross and

    Red Crescent Societies to the EU institutions.

    18In our view, detention of asylum seekers should be avoided and considered only as a measure of last resort; particularly

    vulnerable persons should never be detained. For detailed comments on the use of detention, see Position paperEuropean Commission Policy Plan on Asylum, Red Cross/EU Office, 2008 (www.redcross-eu.net)

    http://www.redcross-eu.net/B/uploaded/1070_Position%20paper%20Policy%20Plan%20on%20Asylum.pdfhttp://www.redcross-eu.net/B/uploaded/1070_Position%20paper%20Policy%20Plan%20on%20Asylum.pdfhttp://www.redcross-eu.net/http://www.redcross-eu.net/http://www.redcross-eu.net/http://www.redcross-eu.net/http://www.redcross-eu.net/B/uploaded/1070_Position%20paper%20Policy%20Plan%20on%20Asylum.pdf