ILPA Analysis and Critique of Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (30 April 2004)*
July 2004
Annex Binding Standards
Introduction
The main criteria for appraising the Directive are those of human rights law, EU international and regional.[76]
EU human rights ‘form an integral part of the general principles of Community law whose observance the [ECJ] ensures. For that purpose, the [ECJ] draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights. The [ECHR] has special significance in that respect. As the [ECJ] has also held, it follows that measures are not acceptable in the Community which are incompatible with observance of human rights thus recognised and guaranteed..’[77] Article 6 TEU provides that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. As such it must respect fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States. The EU Charter of Fundamental Rights, although non-binding, provides guidance.
Human rights enshrined in international instruments are also relevant. The ECJ has recognised that when EC legislation expressly purports that it is not in violation of an international treaty, failure to comply with that treaty is a ground of invalidity.[78] In the case of the Asylum Procedures Directive, the EC Treaty itself requires that this legislation be ‘in accordance with the [Refugee Convention] and other relevant treaties’.[79] The other relevant treaties are, at a minimum, the International Covenant on Civil & Political Rights (‘ICCPR’), UN Convention against Torture (‘CAT’) and naturally the ECHR. The pertinent requirements of each of these instruments are set out in the following sections.
1. Refugee Convention
The Refugee Convention is binding on the EC in this area. Article 63(1) EC provides that the Community must act in accordance with the Refugee Convention. This Convention contains the definition of a refugee (Article 1A); the prohibition on non-refoulement (Articles 32 and 33) and a prohibition on discrimination (Article 3).
1.1 The Definition of ‘Refugee’ and Non-refoulement
Procedural safeguards are implied by the Refugee Convention’s definition of a refugee and in the prohibition of refoulement, which require an individualised assessment of whether the applicant has a subjective fear of persecution and whether this fear is objectively well-founded based on her personal narrative which caused her fear and motivated her flight, and the reasons for which she was unwilling or unable to seek her country’s protection. The centrality of the concept of ‘fear’ in both the refugee definition and in the non-refoulement guarantee makes it clear that determination procedures must be personal and individual.[80] As the UNHCR Handbook explains ‘[s]ince fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant’s statements rather than a judgement of the situation prevailing in the country of origin.’[81] The Handbook then turns to the concept of ‘well-founded’ fear, and concludes that both subjective and objective elements must be taken into account.[82] While there is considerable academic debate about the correct balance between subjective and objective appraisal,[83] it is undeniable that the Convention requires a personal and individual assessment.
Thus, the procedural requirements inherent in the Refugee Convention are that the decision maker must afford the applicant a hearing, grant her access to a procedure for this purpose, and allow her to remain in the host state for the duration of their procedure. Rejection at the frontier must respect the principle of non-refoulement in just the same way as the internal asylum process. ‘No other analysis is .. consistent with the terms of Article 33(1).’[84] This is in keeping with general public international approaches to state responsibility, as ‘rejection at the frontier will normally fall within the jurisdiction of the State for the purposes of the application of human rights norms. These developments are material to the interpretation of the prohibition of refoulement under Article 33(1) of the [Refugee Convention].’[85]
1.2 Procedural Guarantees
Article 16 Refugee Convention provides that in matters pertaining to access to the courts, a refugee must be treated as if she were a national of her state of habitual residence. Where nationals of the state of habitual residence have access to the courts to challenge the validity of administrative action, Article 16 requires that asylum seekers also have such access.[86]
As well as these procedural standards inherent in the express terms of Refugee Convention, the Executive Committee of the Convention also provides in its Conclusions on International Protection (‘Excom Conclusions’), authoritative guidance on the meaning of the Convention. Although not formally binding, they are relevant to the interpretation of the international protection regime. ExCom Conclusions constitute expressions of opinion which are broadly representative of the views of the international community. The specialist knowledge of ExCom and the fact that its Conclusions are taken by consensus add further weight. Of particular relevance are:
- Determination of Refugee Status, No. 8 (XXVIII) (1977)
- The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum, No. 30 (XXXIV) (1983)
In addition, the UNHCR Handbook sets out the basic requirements of asylum determinations:
‘(i) The competent official (e.g., immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority.
(ii) The applicant should receive the necessary guidance as to the procedure to be followed.
(iii) There should be a clearly identified authority-wherever possible a single central authority-with responsibility for examining requests for refugee status and taking a decision in the first instance.
(iv) The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they should be duly informed, to contact a representative of UNHCR.
(v) If the applicant is recognized as a refugee, he should be informed accordingly and issued with documentation certifying his refugee status.
(vi) If the applicant is not recognized, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system.
(vii) The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that his request is clearly abusive. He should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending.’[87]
In addition, the important principle of granting asylum seekers the benefit of the doubt is also enshrined.
‘After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. … [I]t is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.’[88]
1.3 Detention and the Refugee Convention
Article 31 provides as follows:
‘1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.’
One implication of this guarantee is that it is only after an individual’s claim to refugee status has been examined that penalties could be imposed. Otherwise a state cannot be sure that it is meeting its obligations under Article 31.[89] Imposing penalties on asylum seekers without regard to the merits of their claims ‘will likely also violate the obligation of the State to ensure and to protect the human rights of everyone within its territory or subject to its jurisdiction.’[90] This also has procedural implications, in that
‘effective implementation .. requires concrete steps … In the light of experience and in view of the nature of the obligations laid down in Article 31, States should take the necessary steps to ensure that refugees and asylum seekers within its terms are not subject to penalties. Specifically, States should ensure that refugees benefiting from this provision are promptly identified, that no proceedings or penalties for illegal entry or presence are applied pending the expeditious determination of claims to refugee status and asylum, and that the relevant criteria are interpreted in the light of the applicable international law and standards.’[91]
The UNHCR’s Revised Guidelines on Detention of Asylum Seekers (1999)[92] confirm that ‘as a general principle, asylum-seekers should not be detained’ and that ‘the use of detention is, in many instances, contrary to the norms and principles of international law.’ The Revised Guidelines also re-affirm the ExCom position that detention is only permissible in exceptional circumstances, when it is reasonable, proportional and necessary in order to attain a limited range of objectives:
‘If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and / or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order.’[93]
Alternatives to detention must always be explored, the choice being ‘influenced by an individual assessment of the personal circumstances of the asylum-seeker concerned and prevailing local conditions.’[94] This is particularly important given that detention is employed without justification in many instances. For example, the detention of asylum seekers in order to prevent them absconding is generally not necessary. One empirical study has demonstrated that only 2% of asylum seekers released on bail absconded.[95]
1.4 Cessation of Refugee Protection
Article IC(1) – (4) of the Refugee Convention set out the circumstances in which the Convention ceases to apply to refugees due to a change in individual circumstances. These are (i) re-availment of national protection; (ii) re-acquisition of nationality; (iii) acquisition of a new nationality; (iv) re-establishment in the State of origin. Article 1C (5) and (6) deal with cessation due to changed general circumstances in the country of origin. Article 1 C (5) states that the Convention ceases to apply if:
‘He can no longer, because the circumstances in connexion with which he has been recognised a refugee have ceased to exist, continue to refuse himself of the protection of the country of his nationality; provided that this paragraph shall not apply to a refugee falling under Section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution to avail himself of the protection of the country of nationality; [or]’
As Article 1c(6) provides:
‘Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence; provided that this provided that this paragraph shall not apply to a refugee falling under Section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution to avail himself of the protection of the country of his former habitual residence.’
In their recent authoritative analysis of these provisions, Fitzpatrick and Bonoan[96] explain that in terms of procedural guarantees, an individual process is also required for the withdrawal of refugee status. Moreover that process ‘should be as formal as the process for the grant of status, given the stakes for the individual.’[97]
2. International Covenant on Civil and Political Rights 1966
The International Covenant on Civil and Political Rights is also applicable. All EU Member States have ratified the ICCPR,[98] although not all have recognised the right of individual petition to the Human Rights Committee provided in the Optional Protocol. The ECJ has taken into account the jurisprudence of the Human Rights Committee in its development of EC fundamental rights law.[99]
2.1 Non-refoulement under the ICCPR
Like its regional counterpart, the ICCPR entitles the individual to protection against torture and cruel, inhuman or degrading treatment or punishment (Article 7) which entails a non-refoulement guarantee. In its General Comment No 20 (1992), the Human Rights Committee explained the implications of Article 7 prohibiting torture or cruel or inhuman or degrading treatment or punishment.[100] In stated, inter alia:
‘In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end.’[101]
The Human Rights Committee has examined the compatibility of expulsion and extradition with Article 7 in several cases.[102] Chitat v Canada concerned extradition to the US, which would lead to the possible imposition of the death penalty there. The Committee emphasised that ‘if a State party extradites a person within its jurisdiction in such circumstances, and if, as a result, there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant.’[103]
2.2 Fair Procedures & ICCPR
Lawfully present non-citizens also enjoy substantive and procedural protection against removal. Article 13 provides:
‘An alien lawfully on the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.’
Determinations of the lawfulness of an alien’s entry or stay must also be taken in accordance with Article 13.[104] Refugee claimants who receive residency permits pending the determination of their status are protected by Article 13.
Article 14 ICCPR is the general fair procedures guarantee. Article 14(1) provides:
‘All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…’
The Human Rights Committee has adopted a broad view of the scope of Article 14(1), which suggests that it would apply to refugee determination proceedings, though this point has not been directly decided. From the case law of the Committee,[105] it appears that once it can be determined on the merits before a court of law or the executive decision determining the public law right in question is subject to judicial review, Article 14 is applicable. On this analysis, Article 14(1) would have a very broad scope, extending, inter alia to all decisions subject to judicial review.[106] In addition, Article 2(3) ICCPR requires states to provide persons whose ICCPR rights are violated with an effective remedy.
2.3 Detention & the ICCPR
In A v Australia[107] the Human Rights Committee set out criteria on what was required in order to avoid arbitrary detention. It stressed the importance of periodic review of detention in order to assess the cogency of the grounds for detention. It also stated:
‘the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal.’[108]
The Human Rights Committee also stressed the importance of effective remedies, and that reviewing bodies should be empowered to order release from illegal detention.[109]
3. UN Convention Against Torture 1984
The UN Convention Against Torture (‘CAT’) has been ratified by all 25 EU Member States.[110] The jurisdiction of the UNCAT Committee under Article 22 CAT has been accepted by all the current Member States, bar the United Kingdom, Czech Republic, Malta, Slovakia and Slovenia.
Article 1 defines torture as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain and suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’ Article 16(1) refers to ‘cruel, inhuman or degrading treatment or punishment’. CAT provides a narrower definition of torture than the ECHR ‘in respect of both state acquiescence and motivation.’[111] However, although at first reading, the CAT has a narrower definition of torture that is confined to state entities, the UNCAT Committee has interpreted it in a broad and inclusive way, for example to protect from refoulement a victim of inter-clan violence in Somalia - a country which lacks any form of effective central government.[112]
CAT includes in Article 3(1) a duty that ‘no state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.’
The UNCAT Committee has provided guidance on the nature of the risk assessment exercise under Article 3(1). The Committee stated that the aim of the assessment is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he would return. The existence of a consistent pattern of gross, flagrant or mass violations of human rights is relevant to this assessment. However, the aim of the determination is to identify whether the individual is personally at risk, additional personal grounds must also exist.[113] Conversely, the absence of a consistent pattern of gross, flagrant or mass human rights violations does not mean that a person cannot be considered to be in danger of being subjected to torture or other treatment prohibited by Article 3 CAT upon return in his specific circumstances.[114]
As regards the standard of risk assessment, it is crucial to note that the risk must simply be 'beyond mere theory or suspicion'. It does not have to meet the test of being highly probable.[115] The risk to which the individual would have to be exposed has been described as 'foreseeable, real and personal'.[116] Thus, it may be argued that the Committee requires a less strict standard to the risk criterion than the ECHR. However, it has also been suggested that these different formulations under the ECHR, ICCPR and CAT may not be material ‘particularly as the Human Rights Committee, the European Court of Human Rights and the Committee Against Torture … have all indicated in one form or another that, whenever an issue of non-refoulement arises, the circumstances surrounding the case will be subjected to rigorous scrutiny.’[117]
The Committee has also emphasised the skills required by decision-makers, including very accurate and specific knowledge of the political and social situation in the country of origin[118] as well as the ability to understand and evaluate the psychological aspects of the process.[119] Even if the facts adduced by the author are not coherent, this should not be fatal to a claim for protection. The Committee has reiterated the rationale of Article 3 CAT, which requires the authorities to be sure that the individual's safety is not endangered. Accordingly, late submission of claims and lack of corroboration should not be taken as evidence of lack of credibility, and these were common features of the accounts of victims of torture.[120] Doubts about credibility and unexplained inconsistencies do not diminish the existence of substantial grounds.[121]
The risk of expulsion is not avoided by the grant of a temporary residence permit, where there is no guarantee it will be renewed as long as the risk persists.[122]
4. UN Convention on the Rights of the Child 1989
All EU Member States have ratified the 1989 Convention on the Rights of the Child (‘CRC’). The CRC protects the child against discrimination (Article 2.1), provides that in all activities concerning children, the best interests of the child shall be a primary consideration (Article 3.1), guarantees protection in regard to registration and identity (Articles 7, 8), against separation from parents (Article 9), and in regard to family reunion (Article 10).
Separate provision is also made in respect of children as refugees (Article 22). Notwithstanding a number of declarations and reservations, as well as the general nature of some of the obligations assumed, the principle of effectiveness of obligations evidently requires States parties, in legislation on admission and removal and in the implementation of policies, to ensure that the rights of the child are protected and that the best interest of the child standard is upheld.
5. European Convention on Human RightsThe European Convention of Human Rights is of particular importance, being both binding on all the Member States, and the pre-eminent source of the EU’s own internal fundamental rights standards. Of particular relevance is the ECtHR’s case law on refoulement under Article 3; effective remedies under Article 13; detention under Article 5 and collective expulsion under Article 4, Protocol 4.
6.1 ECHR Non-refoulement
The European Court of Human Rights has detailed the robust procedural standards that must be respected in cases of removal, in order to ensure that there is no substantial risk of treatment in violation of Article 3 ECHR (or indeed Article 4, Protocol 4 on collective expulsions.) The ECtHR’s approach is informed by the absolute nature of the Article 3 guarantee and the potential irreversibility of the harm. Whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another country, the responsibility of the State to safeguard him or her against such treatment is engaged in the event of expulsion.[123] The risk assessment requirement in Article 3 has inherent procedural ramifications. In addition, Article 13 ECHR provides everyone whose Convention rights are violated shall have an effective remedy before a national authority.’ Once there is an arguable claim of infringement of a Convention right, the guarantee of effective remedies becomes relevant.[124] This section thus focuses on the procedural ramifications of the ECtHR case law on Articles 3 and 13. TI[125] makes clear that ‘the existence of mechanisms to deal with asylum seekers within the European Union does not displace the guarantees in the Convention.’[126]
The Strasbourg jurisprudence is informed by the desire to ensure that Article 3 is ‘practical and effective’.[127] In these circumstances the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.[128] The scope of protection of the ECHR against refoulement is thus broader than the Refugee Convention. Non-state agents of persecution can also give rise to Article 3 claims.[129] In Vilvarajah v UK[130] the ECtHR set out the general approach to the appraisal of risk in the context of removals. First, it examines the issue in light of all available information, including information obtained of its own motion. Secondly, while its assessment is based primarily on the facts as know and ought to be known by the state, it also takes into account subsequent information. Thirdly, ill-treatment must attain a minimum level of severity if it is to trigger the application of Article 3. A mere possibility of ill-treatment is not sufficient. The ECtHR also held that the availability of judicial review did in principle amount to an effective remedy under Article 13.
On the particular facts of the case, the ECtHR held that the UK’s removal of Sri Lankan failed asylum seekers did not breach Article 3. Although there was a possibility of ill-treatment, this was not sufficient to give rise to a breach of Article 3. Again however, the Court emphasises that not only was the general situation in Sri Lanka taken into account, but also the particular situation of the applicants. It noted that there were no special or distinguishing features in their cases that could or ought to have enabled the authorities to foresee that they would be ill-treated on return. This implies that an individualised procedure is an inherent requirement of the risk assessment demanded under Article 3.
Similarly, in Hatami v Sweden,[131] the Commission found a violation of Article 3, where the Swedish authorities denied an asylum application on the basis of negative inferences drawn in relation to the applicant’s credibility, due to contradictions and inconsistencies in his story. The Commission in contrast noted that the interview which formed the basis for the decision ‘lasted less than ten minutes with interpretation provided over the telephone’ and the report thereon was ‘of one page and does not explain or set out in any detail the applicant's situation.’ Furthermore, the contents of the report were not explained to the applicant who could not read the language used. The Swedish authorities also doubted aspects of the applicant’s claim due to the vagueness of his description of the ill-treatment he suffered in detention in his country of origin, and his failure to mention this upon arrival. Again here the Commission stressed that ‘no reliable information’ could be deduced from the original peremptory interview[132] and that subsequent evidence did substantiate the applicant’s claim. Of particular note is the fact that the Commission stated explicitly that ‘complete accuracy [was] seldom to be expected by victims of torture’.[133]
Jabari v Turkey[134] is of particular relevance to the issue of expedited procedures. In that case, Turkey had refused to grant temporary residence to the applicant (as a non-European asylum seeker) due to her failure to comply with a five-day requirement under the pertinent national regulations and had failed to make an application on arrival. The Court held that the ‘automatic and mechanical application of such a short time-limit for submitting an asylum claim must be considered at variance with the protection of the fundamental value embodied in Article 3.’[135] The national court had failed to examine the substantive aspect of her claim. Given that there was general and particular evidence of risk, the Court found a breach of Article 3. An Article 13 violation was also found, due to the failure to provide a forum for the examination of the substantive issues underlying the alleged potential violation of Article 3, and the lack of suspensive effect of the available court procedures.
Similar sensitivity to the difficulties asylum seekers may experience in recounting their experiences is evident in Bahaddar v Netherlands.[136] In considering whether domestic remedies were exhausted (in particular whether the remedies were genuinely available) the ECtHR noted that time limits must not be so short, or applied so inflexibly, as to deny an asylum applicant a realistic opportunity to prove his or her claim, in light of the sensitive nature of the determination.[137]
The ECtHR has also clarified the point at which duties arise, namely as soon as an individual seeks admission, provided he/she is within the state’s jurisdiction. Accordingly, border applications are also included. Thus, for example, in Nsona v Netherlands[138] the ECtHR confirmed that while the Netherlands authorities were entitled to refuse access to the country, such refusal had to comply with the obligations of the state under the Convention. On the facts, the manner in which the removal was effected did not amount to ‘inhuman and degrading treatment.’
In addition, in TI v UK[139] the court held that ‘indirect removal .. to an intermediary country, which is also a Contracting State, [did] not affect the responsibility of the State to ensure that the applicant is not, as a result of the decision to expel, exposed to treatment contrary to Article 3.’ The UK sought to remove the applicant, a Sri Lankan asylum seeker, to Germany under the Dublin Convention arrangements. However, there was a risk of chain refoulement, as a deportation order had already been issued by Germany having been refused asylum there. In determining that the UK was permitted to send the applicant to Germany, the ECtHR relied on the fact that he would be entitled to make a fresh asylum application there, and that these proceedings would provide effective protection of the applicant’s Article 3 rights. It is particularly noteworthy that the ECHR’s decision was based on an in-depth appraisal of the procedures applicable in Germany and assurances that the applicant’s case would be re-examined. Although there remained a possibility that the second application would be refused, this was neither sufficiently concrete nor determinate to amount to a real risk of refoulement. In addition, in assessing the applicant’s Article 13 claim, the Court noted the practice of the English courts to carefully review Dublin Convention removals in light of divergences in national asylum laws and practices. In light of the existence of this safeguard, the Court found compliance with Article 13. The case clearly illustrates that transfers to third countries, where such safeguards are not in place, are not compatible with the ECHR.
Applicants will not succeed in their Article 3 claims where they fail to raise sufficient evidence. Thus, for example, in HLR v France[140] it was found that there was no risk of treatment in breach of Article 3, where the applicant failed to provide evidence, either general or particular, of the likelihood of such treatment. Similarly, in Mamatkulov v Turkey[141] the ECtHR held that although there was evidence of breaches of Article 3 in the country of origin, Uzbekistan, there was no evidence of a particular risk faced by the individual applicant. Again in Venkadajalasarma v The Netherlands[142] the Court found the deportation of Ski Lankan Tamils permissible, in light of the generally improved situation in that country, and the particular applicant’s relatively ‘low-level’ activities in the dissident group. In Cruz Varas v Sweden[143] the Court found no risk of infringement of Article 3 in the removal of a failed asylum seeker to Chile in light of the changed general circumstances there and the very considerable delay (18 months) in providing details to the Swedish authorities of his alleged ill-treatment in Chile. Again, however, in that case, the Court emphasised the ‘thorough examination’ by authorities with ‘particular knowledge and experience’ of the applicant’s claim.
In Chahal v UK[144] the Court emphasised the importance of effective remedies in Article 3 cases.
‘Given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State.’[145]
Although this did not necessarily require court proceedings, where a non-judicial body is at issue, its role will be carefully examined to ensure that it can determine the legality of the deportation on the basis of the Article 3 risk assessment. In the circumstances, an Article 13 violation was established Chahal was not entitled to legal representation before the decision-making body, he was only provided with an outline of the basis for the body’s report and its decision was non-binding and confidential.
6.2 Suspensory Appeal
ECtHR case law on the requirements of effective remedies clarifies that appeals must have suspensory effect. In Jabari v Turkey[146] an Article 13 violation was found where the applicant was refused asylum on procedural grounds. The only domestic remedy available was judicial review. However, this entitled the applicant neither to suspend the application of the deportation order nor to have her substantive claim of a risk of Article 3 violation examined. The ECtHR reiterated the robust nature of the Article 13 guarantee in this context, requiring ‘independent and rigorous scrutiny’ of the substantive claim and ‘the possibility of suspending the implementation of the measure impugned.’[147] Similarly in Hilal v UK[148] the Court reiterated the rigorous Article 13 standards, requiring ‘the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and grant some relief’, a remedy that was effective ‘in practice as well as in law.’[149]
Conka v Belgium [150] clarifies that suspensive effect is required not only in Article 3 cases, but also where other Convention guarantees are potentially infringed. The case concerned a violation of the prohibition of collective expulsion under Article 4, Protocol 4. The ECtHR stated that it was incompatible with Article 13 for the authorities to execute decisions incompatible with the Convention, whose effects were potentially irreversible, before compatibility with the Convention has been examined.[151] The Court examined the limited availability of the remedy of suspending deportation and found it in violation of Article 13.[152] Secondly, Article 13 required guarantees, not mere ‘statements of intent’ or ‘practical arrangements’ with regard to stays of deportation. Accordingly, a system which did not provide secure legal assurances that deportation would not take place, could not be regarded as embodying the rule of law.[153] The Court rejected the state’s arguments based on administrative convenience or judicial economy.[154]
6.3 ECHR Detention
Article 5(1) ECHR sets out the right to liberty and the exhaustive circumstances in which it can be limited. If detention is to be compatible with the Convention, it must be ‘in accordance with a procedure prescribed by law.’ The grounds of permissible detention set out exhaustively in Article 5. In Conka v Belgium[155] the ECtHR clarified that detention under Article 5(1)(f) does not require that the detention be reasonably necessary, merely that it is being taken with a view to deportation.[156] The Court emphasised that the list of exceptions to the right to liberty in Article 5 was exhaustive and that these were to be interpreted restrictively. In light of this proposition, it is doubtful whether any system of widespread detention of asylum seekers is permissible, as it could not be regarded as necessarily ‘in contemplation of deportation.’ Until the individual examination of the individual’s claim has been carried out, the state cannot reasonably maintain that it is contemplating her deportation.
The requirement of legality has substantive implications. It means that the law must lay down the procedures for that specific type of detention; these procedures must be followed in the particular case; the procedures themselves must be compatible with the Convention; and, the law must be accessible to those affected by it and sufficiently precise so that the implications of its application are foreseeable.[157]
In Amuur v France[158] the ECtHR held that where national law authorises a deprivation of liberty it must be sufficiently accessible and precise in order to avoid all risks of arbitrariness. In that case, the applicants were detained in the international zone of a French airport, on the basis of vague provision of national legislation and an unpublished circular. The ECtHR found that neither provision constituted a ‘law’ of sufficient ‘quality’ such as to avoid arbitrariness.[159] In Conka v Belgium[160] the manner in which arrest and detention were carried out (by trickery) was sufficient to compromise legality. The detention here was unlawful as it was brought about by a ruse – the asylum seekers were invited to the police station in order to complete their applications.[161] The requirement of legality had to be ‘reflected in the reliability of communications…, irrespective of whether the recipients are lawfully present in the country or not.’[162] As regards Article 5(4) access to justice, the ECtHR found that the applicants were prevented from making any ‘meaningful appeal’ to the domestic court[163] due to time constraints and a delay in contacting the applicants’ lawyer.[164] In Shamsa v Poland[165] the ECtHR emphasised the basic requirement of legal certainty which applied in the context of detention, requiring that the conditions governing deprivations of liberty is sufficiently precise and predictable.[166] As the detention was not the result of an explicit decision specifying its nature and duration, it could not be regarded as fulfilling this requirement.
The ECtHR also guards the integrity of the Refugee Convention. Thus, in Amuur, it also stated that ‘States’ legitimate concern to foil the increasingly frequent attempts to get around immigration restrictions must not deprive asylum seekers of the protection afforded by these Conventions’ being the ECHR and the Refugee Convention.[167] As regards the requirement of effective protection, the ECtHR stated:
‘Although by force of the circumstances the decision to order holding must necessarily be taken by the administrative or police authorities, its prolongation requires speedy reviews by the courts, the traditional guardians of personal liberties. Above all, such confinement must not deprive the asylum seeker of the right to gain effective access to the procedure for determining refugee status.’[168]
Thus, effective protection required not only speedy judicial review, but also access to a proper asylum procedure. As Harvey puts it,
‘The Court attached significance to the plight of asylum seekers. It took their particular problems into account, both in its assessment of the applicability of Article 5(1), and its substantive judgment on compatibility. This is reflected in its focus on the right to effective access to a determination process. The right is a vital aspect of refugee protection and one which the Court recognised as significant. The Court acknowledged how states might try to avoid their Convention obligations by creating lawless spaces. It was alive to the problem and addressed it in this judgment.’[169]
In Chahal v UK[170] the duration of permissible detention pending deportation was considered. In light of the very exceptional nature of the applicant’s case, it was held that his prolonged detention was not excessive. However, the substantive requirement of lawfulness was violated on the facts. Mr Chahal argued his detention on national security was arbitrary in that the domestic courts were not in a position to review the underlying basis of this determination by the relevant government minister. In this respect, the ECtHR stressed the existence of the ‘advisory panel’ procedure, whereby ‘experienced judicial figures’ reviewed the evidence for the national security decision, so that the procedure could not be regarded as ‘arbitrary’. It did however constitute a violation of Article 5(4) ECHR, which provides that anyone deprived of his liberty ‘shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if not lawful.’ The Article 5(4) violation arose as Chahal was not entitled to legal representation before the advisory panel; he was only provided with an outline of the basis for the report; the panel’s decision was non-binding and confidential.
6.4 Synthesis of ECHR Requirements
From this ECtHR case law, the following principles may be derived:-
- Article 13 ECHR applies once there is an arguable case that an ECHR right has been breached. There is no need to show an actual violation of another right.
- Article 3 ECHR applies where there are substantial grounds for believing that the person, if returned, faces a real risk of torture or inhuman or degrading treatment or punishment.
- The ill-treatment must attain a minimum level of severity if it is to trigger the application of Article 3.
- The must be a thorough examination of the applicant’s individual circumstances and the general situation prevailing in the country of return in order to assess the risk of treatment contrary to Article 3 on return.
- The examination need not be conducted by a court, but the decision-making body must be independent.
- Other factors in relation to the body that are pertinent are whether legal representation is possible and the binding nature of its determinations.
- The risk assessment must be based on all available evidence at the time of purported deportation.
- In carrying out the risk assessment, the applicant’s conduct (such as whether he/she poses a security risk) is irrelevant.
- The particular circumstances and vulnerabilities of the applicant must be taken into account. Accordingly, the authorities must not overemphasise the significance of inaccuracies or inconsistencies in his/her account in drawing negative credibility inferences. In addition, proper translation must be provided.
- Asylum seekers generally, and victims of torture in particular, cannot to be expected to provide immediate, fully coherent accounts.
- The mechanistic application of time limits is inappropriate.
- The body’s decisions must have suspensive effect.
- Detention of asylum seekers is only permitted in contemplation of deportation, and must comply with substantive conditions of legality.
6. Customary International Law on Non- Refoulement
The Community legislature must also respect norms of customary international law.[171] A fortiori, norms of jus cogens such as non-refoulement must be accorded primacy.[172]
Jus cogens refers to peremptory norms, which protect the interests of the world community and the very essence of the international legal system, which cannot be departed from. In 1989, ExCom concluded that all states were bound to refrain from refoulement, as such conduct was ‘contrary to fundamental prohibitions against these practices’ jus cogens’.[173] In the 1984 Cartagena Declaration, a group of central and south American states agreed that non-refoulement ‘is imperative in regard to refugees and in the present state of international law should be regarded and observed as jus cogens.’[174]
A recent authoritative examination of the scope and content of non-refoulement in customary international law concluded that the principle could be expressed as follows:
‘No person shall be rejected, returned, or expelled in any manner whatever where this would compel him or her to remain in or return to a territory where substantial grounds can be shown for believing that he or she would face a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment. This principle allows of no limitation or exception.’[175]
Observance of this rule requires not only that recognised refugees should not be returned to peril, but also that asylum seekers be admitted to an asylum determination procedure in order to be given an opportunity to explain this case. It applies to asylum seekers at the border and in country. As such, it entails inherent procedural obligations. Where procedures are inadequate, they can themselves be considered to be in violation of the fundamental norm of non-refoulement.
7. EU Human Rights Law
In addition, the EU’s own internal human rights standards are binding on the EU’s legislature. Accordingly, any aspects of the Directive that fail to comply with these standards should be annulled. These standards are currently part of the general principles of Community law, being judge-made principles inspired by the constitutional traditions common to the Member States and relevant international human rights law, in particular the ECHR. In key areas, in particular in relation to the right of access to justice, the EU internal standards are higher than those of international law, and appropriately so.
The EU Charter of Fundamental Rights (‘EUCFR’) is also a pertinent to determining the content of EU human rights law. Although currently non-binding,[176] it represents a synthesis of existing EU protections. As such, it is referred to in this paper in order to elucidate the current standards of EU fundamental rights protection. Although the ECJ has yet to refer to the Charter in a judgement, it has been cited by several Advocates General[177] and by the Court of First Instance.[178] As described by one of their number, ‘Some Advocates General, within the Court of Justice and without ignoring that the Charter does not have any autonomous binding effect, have nevertheless emphasised its clear purpose of service as a substantive point of reference for all those involved in the Community context.’[179] AG Mischo described the Charter as the embodiment of ‘the expression, at the highest level, of a democratically established political consensus on what must today be considered as the catalogue of fundamental rights guaranteed in the Community legal order.’[180]
The synthetic nature of the EUCFR is reflected in its final provisions, which aim to ensure that it maintains interpretative harmony with its sources - EU law[181] the ECHR[182] and indeed, most controversially, national constitutional standards.[183] The general provisions also limit the Charter, by providing that it is principally addressed to the Union’s institutions[184] and does not create any new competences for the EU.[185] The Convention of the Future of Europe added three new provisions which each aim to clarify the limited scope of the Charter and its links with existing instruments.[186]
The CFE added a potentially significant preambular change to the Charter, such that it now provides that ‘the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared at the instigation of the Praesidium of the Convention which drafted the Charter.’ It should be noted however that the Explanations have themselves been amended considerably since the Praesidium draft, the current version dating from 9 July 2003.[187] The elaborate provisions of the EUCFR provide useful clarification of the scope of certain pertinent rights and obligations.
7.1 Right to Asylum & Non-refoulement in EU Law
Particularly relevant in clarifying the scope of the general principles of EU law are the following provisions.
Article 18 EUCFR contains the ‘right to asylum’. It provides:
‘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 Constitution.’
In addition, Article 19 EUCFR deals with protection in the event of removal, expulsion or extradition. It provides:
2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’
The explanatory note to Article 19 provides that Article 19(1) has the same meaning and scope as Article 4 of Protocol No 4 to the ECHR concerning collective expulsion. Its purpose is to guarantee that every decision is based on a specific examination and that no single measure can be taken to expel all persons having the nationality of a particular State. Paragraph 2 is said to incorporate the relevant case law from the European Court of Human Rights regarding Article 3 of the ECHR, including Ahmed[188] and Soering.[189]
Article 4 provides:
‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
The right in Article 4 is the right guaranteed by Article 3 of the ECHR, which has the same wording. By virtue of Article 52(3) of the Charter, it therefore has the same meaning and the same scope as the ECHR Article.
7.2 Fair Procedures / Access to Justice in EU Law
EU law embodies a higher standard of procedural fairness than the ECHR. The right to an effective remedy in Community law is of broader application and greater import than the Article 6 ECHR guarantee. Article 6 ECHR is a fair procedures guarantee that applies only to the determination of civil rights and obligations or criminal charges. The concept of ‘determination of civil rights and obligations’ is not all encompassing. Thus, for example, in a controversial line of case law, the ECtHR has consistently maintained that Article 6 does not apply to asylum determinations and decisions to expel aliens.[190] However, EC fair procedures guarantees are treated as deriving from EC law’s inherent features, namely its effectiveness and uniformity. From this characterisation of the EC law, the ECJ has developed a robust case law on right to a judicial hearing and to an effective remedy,[191] which goes beyond the ECHR in scope (and indeed effect). Thus, for example, the individual who derives a right to protection under the Qualification Directive[192] should be able to invoke a right to a fair hearing as a matter of EC law, even though the ECHR guarantee in Article 6 may be inapplicable to that situation.[193]
This is reflected in the EUCFR provisions on effective remedies and fair procedures. Article 47 EUCFR clarifies the scope of the right to an effective remedy in EU law, namely that it applies in the case of the violation of any right or freedom ‘guaranteed by the law of the Union’ and that ‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.’ The Explanatory Notes to the Convention[194] confirm that the EC right to an effective remedy is more extensive than the ECHR[195] in that it applies regarding ‘all rights guaranteed by Union law.’ Again the Notes confirm that in EU law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law.[196] Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.
A general principle of EC law requires that Community law be effectively enforced in national courts. This principle ‘has close affinity to the fundamental right of judicial protection which is guaranteed by Articles 6(1) and 13 ECHR.’[197] For the most part, case law on the general principle of effective enforcement has focused on the procedures and remedies that must be made available by national courts when issues of Community law are raised before them.[198] However, as is the case with all general principles, it also binds the Community institutions themselves. As such, it has been invoked by the ECJ in determining the meaning of Treaty provisions[199] and may provide the basis for a legal challenge to an EC legislative measure.
The leading case on access to justice is Johnston v Chief Constable of the RUC,[200] in which it was held that the requirement of judicial control was described as ‘a general principle of law which underlies the constitutional tradition common to the Member States’ and which was laid down in Articles 6 and 13 ECHR. Accordingly the Equal Treatment Directive was to be interpreted in light of this principle, such that all individuals were entitled to ‘an effective remedy in a competent court against measures which they consider to be contrary to the principle of equal treatment.’ Similarly, in Heylens the ECJ held that ‘the existence of a remedy of a judicial nature against any decision of a national authority refusing the benefit of that right is essential in order to secure for the individual effective protection for his right.’[201]
Shingara & Radiom[202] illustrates the right to an effective remedy may be invoked to impugn a Community legislative measure. AG Colomer introduced a test redolent of the Article 13 ECHR case law on effective remedies and judicial review. He stated that the requirements of Community law were in principle satisfied by allowing the person concerned to apply for judicial review. However, if judicial review did not provide the opportunity to undertake complete and effective examination of such decisions, including review of their substance, Community law would require such restrictions to be set aside.[203] In addition, the AG examined the restriction on access to justice permitted under the directive. In so doing he examined whether any of the following were permissible, from the Community law standpoint:
- that government decisions affecting the free movement of persons may be excluded from review by the courts?
- that a court hearing an appeal against such government decisions may not be able to examine the substance of such measures?
- that suspension of the operation of such measures, by way of protection inherent in the court proceedings available for review thereof, is either not provided for or is excluded?[204]
As regards the exclusion of judicial remedies, he stated that ‘the minimum permissible standard, according to that case law, necessarily implies that judicial review must be available for acts of the administration which adversely affect rights derived from Community law.’[205] As regard the restrictions on legal remedies in the courts, he stated that the requirement of effectiveness comprised two aspects: there must be no restrictions on the court's examination of the case and it must be in a position to ensure sufficient protection at the appropriate time.[206] In light of these requirements, he argued that effectiveness required that not only the ‘formal validity’ but also the ‘merits’ should be subject to judicial control.[207] As regards the non-suspensory effect of the legal remedies, he interpreted the directive as providing the possibility of suspensory effect for an appeal to a court, but not automatically requiring it. He was clear that any rule which withheld any suspensory effect for such appeals would not be compatible with Community law.[208]
Although the ECJ took a different approach,[209] it is submitted that that of the AG is appropriate to the examination of whether the Directive’s provisions comply with the general principles of Community law.
6.2 Legal Aid in EU Law
With regard to legal aid, this means that the case law of the ECHR on legal aid under Article 6 ECHR is also applicable in all areas where EU rights are in dispute. Thus the ECHR case law on legal aid under Article 6 is applicable to the Asylum Procedures Directive. This is confirmed by Article 47 EUCFR which provides that ‘Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.’ It is difficult to imagine a situation where the necessity of legal assistance could be more pressing, given the applicant’s unfamiliarity with the procedures and legal system and the seriousness of the determination for the individual.
In addition, the ECHR case law on legal aid is relevant, as it indicates the approach which should be followed in determining the EC right to effective judicial protection. In the landmark decision of Airey v Ireland, the ECtHR emphasised that the ECtHR was designed to safeguard the individual ‘in a real and practical way’. Due to the absence of civil legal aid, it was held that Ireland had violated Article 6 ECHR. Although the state was not obliged to provide legal aid for each and every case concerning a ‘civil right’ under Article 6, it was so obliged when ‘such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory … or by reason of the complexity of the procedure or of the case.’ The ECtHR accepted that the applicant would not have been able to represent herself due to the complexity of the case, and that she was not in a position to secure pro bono legal representation.
In its subsequent case law, the Court has refined the criteria for assessment of whether legal aid is required under Article 6 ECHR.[210] In McVicker v UK,[211] the ECtHR held that there was no Article 6 violation where the applicant was in a position to represent himself in defamation proceedings. Similarly, in Del Sol v France,[212] no violation of Article 6 was found legal aid was denied by the Legal Aid Office of the Court of Cassation for lack of an arguable ground of appeal on point of law. Such selection of cases is permissible under Article 6. However, in contrast, in Aerts, the Court found a violation of Article 6(1) after noting that by ‘refusing the application [for legal aid] on the ground that the appeal did not at that time appear to be well-founded, the Legal Aid Board impaired the very essence of Mr Aerts's right to a tribunal’.[213] Similarly, in Bertuzzi v France[214] the applicant established a violation of Article 6 where his legal aid proved meaningless as the lawyers appointed refused to represent him as he was suing a lawyer. The ECtHR stated that ‘permitting the applicant to represent himself in proceedings against a legal practitioner did not afford him access to a court under conditions that would secure him the effective enjoyment of equality of arms that is inherent in the concept of a fair trial.’ The admissibility decision in Duyonov v United Kingdom[215] suggests that legal aid is also required under Article 5(4) of the Convention.
To summarise, Article 6 ECHR requires civil legal aid to be provided where the applicant has insufficient means, and the nature of the case means that legal assistance is required to make access to justice meaningful. In assessing whether this is so, the ECtHR takes into account the complexity of case, the need to ensure equality of arms and the applicant’s emotional involvement. Application of these criteria to the asylum determination process leads to the conclusion that in many, if not most instances, free legal aid would be a requirement.
7. EU Institutional Law
Other EU constitutional principles, in particular the principles of limited competence and institutional balance, must also be respected.
7.1 Limited Competence
The EU (or more accurately the European Community) has limited competence. It may only act ‘within the limits of the powers conferred on it by [the EC Treaty] and of the objectives assigned to it therein’ (Article 5 EC). In recent years, the effective delimitation of competences has taken on heightened legal and political significance, with national constitutional courts expressing concern at creeping competence expansion;[216] the ECJ’s annulment of the Tobacco Advertising Directive;[217] and the draft Constitutional Treaty’s new provisions on competences.
In the asylum field, the Treaty circumscribes the EC’s role in terms of form, substance and function. The most significant limitation is that as regards asylum procedures (as well as reception conditions, qualification as refugees and temporary protection) the EC may only enact minimum standards. This means that in all aspects of asylum procedures, Member States must remain in a position to offer higher standards. To properly reflect the principle of attributed competence, Member States must retain their capacity to apply higher standards in terms of substantive, procedural and personal scope of protection. That is, the Directive must not preclude them from protecting those who would not receive protection under the EC guarantees, or to grant protection seekers additional substantive and procedural rights to those available under EC law.
The Directive exceeds this competence in a number of key respects, as outlined in Chapter 1. In particular, the provisions for the creation of mandatory common lists of safe countries of origin (Article 30) and possibly supersafe third countries (Article 35A), prevent Member States from treating asylum applications from those countries more favourably, clearly in excess of the EC’s competence to establish minimum standards.
7.2 Institutional balance
Institutional balance refers to the cooperative balance between the EU’