Minimum Standards in Asylum Procedures: EUC Report

Part of the debate – in the House of Lords at 8:42 pm on 23 July 2001.

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Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 8:42, 23 July 2001

My Lords, earlier today, your Lordships had the pleasure of listening to an excellent debate on the Motion of the noble Baroness, Lady Harris of Richmond, to take note of a report by the European Union Committee on a Community immigration policy. It is now my privilege, at this rather late hour, to initiate a further debate on a report from the European Union Committee. The topic this time is a proposal for a Council directive on minimum standards in asylum procedures.

This proposal may be seen as perhaps one further step along the road towards a Community asylum policy. Once again, we are concerned with one of the most basic of all the problems faced by the EU; that is, how to deal with people from other countries who, often for very good reasons, wish to enter and live in the Community.

But your Lordships will appreciate that the context for this debate has shifted from that of the previous one--from the generality to the particular. Its subject matter can be identified, quite precisely, by two things. First, this time we are concerned with asylum seekers or refugees and with the obligations which all member states owe to those who seek asylum under the Geneva Convention of 1951 relating to the status of refugees.

Secondly, we are concerned with a proposal which is limited in its scope to minimum standards in matters of procedure. The procedures with which we are concerned are those for granting or withdrawing refugee status from those who seek asylum in a member state of the EU. As your Lordships know, obligations and procedures are matters that lawyers like to think about. Therefore, it is no accident that this report is the product of an inquiry which was conducted on the Select Committee's behalf by Sub-Committee E, whose remit is the law and institutions of the EU.

Nevertheless, although this is a discussion about obligations and procedures, discussions about procedures relating to the status of refugees and asylum seekers cannot be said to lack human interest. The principle on which the convention is based--its very cornerstone, indeed--is that no refugees should be returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

It is no exaggeration to say that the fate of those who are unfortunate enough to find themselves in that position--people who are forced by circumstances legitimately to seek protection in the Community because of the risks that they face in their own country--may depend in the end on rules of procedure. Their applications for asylum must be examined swiftly to prevent abuse and remove uncertainty, and those who are in need of protection need to be identified correctly and speedily. Therefore, effective access to procedures throughout the decision-making process is an essential safeguard for the individual.

But the member states, too, have an obvious interest in the efficiency, speed and accuracy of those procedures. After all, the purpose of the convention is to provide protection to those who are genuinely in need of it. Abuse of the system must, of course, be weeded out. It is enormously wasteful in time, money and resources. It gives the system as a whole a bad name.

By way of introduction to this brief debate, I should like to give a short description of the background to the proposal for Community legislation on minimum standards of procedure, and then, for the Minister's benefit, to draw attention to the more important points which the committee's report has identified.

The origins of the proposal can be traced back to the meeting of the European Council which took place in October 1999 at Tampere. At that meeting, the Council agreed to work towards a common European asylum system. The process which it envisaged involved two stages. The target for the longer term was to be a uniform asylum procedure and a unified status for all those granted asylum in any member state of the EU. Five distinct topics were included for attention in the shorter term. The aim was to establish minimum standards on asylum matters in all member states with a view to their harmonisation in the longer term.

As I said, we are concerned here with the proposal for minimum standards of procedure. As it happens, shortly before Parliament was dissolved in May, the Commission published another draft directive on minimum standards for the reception of asylum seekers. The aim of that directive is to harmonise the legal position of and assistance given to asylum seekers while member states are considering their applications. A high priority is to be attached to it by the Belgian presidency. A brief investigation into this matter is currently being conducted by Sub-Committee E.

That background of activity brings me to the first point in our report. The first of the five topics to emerge for consideration was this one dealing with procedure. Not surprisingly, some of our witnesses expressed the view that it would have been better if some of the more fundamental points, such as the approximation of the rules relating to the recognition and content of refugee status, had been addressed first. There was perhaps a hint here that the committee would have been better to wait for the other proposals before becoming involved in this one concerning procedure.

On the whole, we were not much impressed by that criticism. Although there is plainly something to be said for the view that matters of substance should be sorted out before agreement is reached on procedure, the proposals about procedure raise distinct issues which can properly be subjected to scrutiny at this stage. As events have turned out, it appears that draft proposals on the other items will not be far behind. That on the reception conditions is already with us, as I have said, and is to be accorded a high priority. So perhaps the most important point to bear in mind is the fact that we are dealing in this debate with only part of a more substantial package, the overall aim of which is to establish those common minimal standards before embarking on the aim for the longer term of establishing a common asylum procedure and a uniform status for all those who are granted asylum anywhere in the EU.

That brings me to another general conceptual point, which was raised by some of our witnesses. It relates to the concept of minimum standards. The risk to which they drew our attention was that of setting the minimum standards by reference to the lowest common denominator. We agree that care must be taken not to fall into that trap. The aim, as we see it, should be to raise standards wherever possible. That applies to the procedural standards to which we adhere in this country just as much as it does to those in other member states. We believe that the United Kingdom should be setting the highest standards, not seeking to shelter among those whose standards are low.

I turn to some points of detail. The directive contains 46 articles and two annexes and it covers the entire field of asylum procedure. Inevitably, our report is full of much more detail than can conveniently be covered in this debate. I shall concentrate on just a few points that we have identified. If the Minister wishes to comment on them, the committee would welcome that.

The first point involves the question of rights to translation and interpretation and access to legal advice. Articles 7, 8 and 9 of the directive contain a comprehensive package of guarantees that are designed to ensure that, with respect to all the procedures that are provided for in the directive, all applicants for asylum understand fully their rights and obligations, are fully informed of the decision and of the possibility for it to be reviewed, are given the opportunity of a personal interview and have access to legal advice at all stages of the procedure. Those include quite extensive rights to translation and interpretation.

In the ideal world, of course, all asylum seekers would have access to an interpreter who could speak to them at every opportunity in their own language and to the provision of translations into their own language of all the relevant literature. At first sight, the article seems to subscribe to that principle because it states that they must be informed of the procedure to be followed and of their rights and obligations during the procedure in a language that they understand. We recognise that, taken literally, that would run the risk of placing an impossible burden on member states, in view of the great number of languages and of dialects within languages that might have to be covered by the rule. So we accept that there is room for some modification in the extent to which translation facilities must be made available, provided that the essential point is recognised that all applicants, from whatever country they may come, must be made fully aware of their rights and the way in which they may exercise them.

Nevertheless, as we put it in our report, the determining authority has to make sure that the individual concerned can exercise his or her rights under the convention. That is particularly important at the outset and again at the stage when a decision has been taken on the application, so that applicants are fully aware of its import and implications. That is an area of domestic asylum practice in which increased investment may well be needed for the provision and training of more interpreters and the translation into more languages of the relevant documents.

Related to that problem is that of access to advice. It was suggested to us that a large number of asylum applications are currently being refused in this country because the statement of evidence form, which must be filled in in English, has not been completed correctly or in time. Where that occurs it leads to rejection of the application on non-compliance grounds and to an appeal, which may in its turn be refused on the same grounds. If that is true, it is a matter for very real concern because it undermines the basic principle of the convention that no refugee should be returned to a country in which his or her life or freedom would be at risk. That is a case of bad decisions resulting from defective procedure. There are also strong objections to this situation on practical grounds. The appeal process is being clogged by cases that should not be there. Where judicial review is resorted to, it brings with it further delay and expense. The result of a successful application for judicial review is a decision that takes far longer and costs far more. Every effort should therefore be directed towards achieving fair and sustainable decisions on the merits at first instance, which are based on an accurate presentation of the facts. The prompt giving of legal assistance in the handling of applications with that in view is likely to contribute to the efficiency of the whole process.

My next point relates to the question of the application of "safe country" concepts. As we pointed out in our report, substantial criticisms were made by our witnesses about the use and definition of the concepts that are embraced by the phrases, "safe third country" and "safe country of origin". Article 18, in brief, provides that a member state can dismiss an application for asylum as inadmissible if a third country with which, for example, an applicant has a connection or close links can be considered as a safe third country for him. Article 27 permits the use of accelerated procedures to process applications that are suspected of being manifestly unfounded. Included in that category are those in which the applicant is from what is described as a safe country of origin.

That area of asylum practice requires very careful scrutiny. The problem lies in the principles that the directive lays down for the designation of countries as safe and in the temptation for member states to adopt an automatic, list-based approach to those applications. It may well be said that the use of safe country concepts is likely to promote efficiency and to contribute to speedy decision making. However, there is a risk that resort to lists will replace the consideration of individual cases on their own facts and that the lists themselves will prove to be erroneous and unreliable. Our conclusions are that it is essential that those concepts should not be allowed to create presumptions that are irrebuttable, that there should be strong independent supervision of the designation of countries as safe countries and of their inclusion in any lists and that their use in practice should be monitored. The annexes in which the principles for designation are set out appear to be incomplete and in other respects unsatisfactory. That whole area is one to which we urge the Government to give careful consideration during the discussion of the draft directive.

There is one other point of detail with which I want to deal before concluding. It relates to the special case of unaccompanied minors, to whom a legal guardian or adviser is to be appointed to assist and represent them. There are, however, other classes of applicants for whom special provision on the same lines might be made. We heard evidence on that matter from the Medical Foundation for the Care of Victims of Torture. It drew our attention to the special needs of the survivors of torture and the victims of violence of other kinds, such as women who have been abused sexually and those who are disturbed psychologically. It is, we think, an open question as to whether a separate article is needed in their case, although those who are disturbed psychologically may be as much in need of a guardian or adviser as children are. However, we would welcome an assurance from the Government that the position of those other special cases will be recognised in some way. What is needed is the provision of safeguards to reduce the risk of prejudice against those who cannot adequately represent their own interests because they have been so acutely traumatised by their experiences that they are incapable of understanding what is going on or of describing the situation in which they find themselves.

There is no time for me to go into further details but my opening remarks would not be complete without my paying tribute to all those who assisted us in our inquiry by providing us with written and oral evidence. The commission consulted several of the relevant organisations before drafting its proposal. We have continued the same process. In matters of procedure there is, after all, no substitute for practical experience. One of the strengths of our committee procedure is the extent to which it enables us to draw upon the knowledge and experience of those who are, so to speak, in the front line. That is a most important aspect of the process of parliamentary scrutiny. It engages with civil society and it contributes greatly to the respect in which the work of Select Committees is held throughout the EU.

I pay tribute also to all the members of my sub-committee and to our legal adviser, Dr Christopher Kerse. Their contribution to the inquiry and to the text of this report, from start to finish, has been immense. It has been my privilege to present the report to noble Lords on their behalf. However, the intellectual effort that has gone into it has been almost entirely theirs, not mine. I owe them all a very real debt of gratitude.

Moved, That this House takes note of the report of the European Union Committee on Minimum Standards in Asylum Procedures [11th Report, Session 2000-2001, HL Paper 59].--(Lord Hope of Craighead.)