Expert Opinion on the Reform of the Common European Asylum System for the German Federal Ministry of the Interior: Minimum Requirements Under EU Primary Law and International Refugee Law for Rules in Secondary Legislation on the Rejection of Applications for Asylum as Inadmissible with a View to Protection and Housing Options in Third Countries (Transit and Other Countries) or in Parts of Any Such Countries

Abstract

Die deutsche Version dieses Artikels finden Sie unter: http://ssrn.com/abstract=3163015. On the basis of a Commission Proposal, the European Parliament and Council are negotiating a revision of the Asylum Procedures Directive, which is intended, amongst other things, to draw lessons from the recent crisis of the Common European Asylum System. It remains the decision of the political institutions to determine the contents of the new piece of legislation, although there are constitutional limits under human rights law and the Geneva Convention relating to the Status of Refugees (hereinafter the Refugee Convention) that the legislature is obliged to respect. Against this background, the expert opinion aims to identify the mandatory minimum level of protection under European and international law. While it is generally acknowledged, both in state practice and by UNHCR, that although rules on safe third countries and other forms of protection elsewhere can be compatible with international law as a matter of principle, there are legal limits under the Refugee Convention, the ECHR and the Charter of Fundamental Rights which the legislature must comply with. Effective respect for the principle of non-refoulement remains the cornerstone of refugee law, including guarantees against indirect (chain) returns to countries where a well-founded fear of persecution exists. Comprehensive compliance with the principle of non-refoulement includes generous ECHR case law which regularly extends to the prerequisites of subsidiary protection under the Qualification Directive. As a result, the diverse expressions of the principle of non-refoulement in Article 45 1(a)-(d) of the Commission Proposal reflect mandatory legal prescriptions, which the EU legislature may not change. The picture is different for reception and living conditions in third countries, in relation to which international refugee law requires ‘effective protection’ to be guaranteed, which need not cover all statutory rights under the Refugee Convention. Instead, third countries must provide an adequate standard of living, including adequate food, housing, clothing and healthcare, reflecting basic human rights guarantees in accordance with the overall situation in the country concerned. For this reason, Article 45(1)(e) of the Commission Proposal goes beyond mandatory obligations under international law. This conclusion extends to the ECtHR, whose Grand Chamber confirmed in December 2016 that the ECHR prohibits returns to situations of serious deprivation incompatible with human dignity without, however, prohibiting returns whenever there is a lower standard of living in a third country. When assessing these requirements, European and international law compel states to take account of specific needs of children and other vulnerable groups and to provide minors with access to primary education. Moreover, the Refugee Convention requires third countries to give asylum seekers access to a fair and efficient status determination procedure in accordance with global minimum standards, including the option of temporary protection. Whenever status determination does not identify a need for protection, international law would not generally prevent return to the country of origin. In contrast to the Commission Proposal, neither the Refugee Convention nor the ECHR stipulate that asylum seekers must have a personal connection with a third country to which they are being returned provided that the latter guarantees ‘effective protection.’ In a similar way, there does not need to be an opportunity to reunite family members who are not living in the third countries already. In order to support sustainable solutions, the EU should set up a resettlement programme, although it is not obliged to do so under international law. Accelerated procedures at the external borders can include mobility restrictions whenever the asylum procedure is an integral part of entry controls and is being conducted in a speedy manner. By contrast, the detention of refugees over longer periods will usually contravene human rights obligations. Another ECtHR judgment delivered in December 2016 confirmed that, as a matter of principle, statutory rules on asylum procedures are compatible with the prohibition of collective returns. This conclusion extends to judicial appeals, in relation to which human rights law does not guarantee a right to remain on the territory of the state concerned for as long as courts may suspend the return procedure as an interim measure in situations where returns might be incompatible with the principle of non-refoulement. Extraterritorial activities are covered by the ECHR whenever the EU or its Member States have ‘effective control’ of an area or over an individual – a level of authority potential reception centres in third countries could possibly reach, if the EU or its Member States run the facility or control the management of any such facilities effectively. Irrespective of the jurisdiction threshold, the situation in the southern Mediterranean would generally require active EU support in order to guarantee effective compliance with the minimum requirements under international refugee and human rights law described above. Further detail could be laid down in contractual arrangements with neighbouring countries, which could also establish a monitoring mechanism to ensure that a sufficient level of protection is being provided in practice. In case the EU legislature decided to realise a new policy approach that would refer asylum seekers to a third country where effective protection is provided in an area or reception centre, it could introduce a new provision on safe places in third countries where safe and adequate living conditions are guaranteed together with access to fair and efficient status determination, if necessary with active EU support. During the ongoing legislative process, this kind of provision could lay down substantive and procedural requirements, establishing a new policy approach in principle, while delegating its operationalization to an implementing act. It would also be possible to link the activation of the new provision on safe places to a situation of mass influx, thereby distinguishing the EU’s approach from Australian asylum policy by emphasising that the new instrument is not aimed at replacing domestic asylum procedures or refugee protection systems, but merely to complement them with an additional tool.