ILPA's Scoreboard
on the Proposal for a Council Regulation establishing the
criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged in one
of the Member States by a third country national
(Brussels,
26.01.2001, COM (2001) 447 final, 2001/0182 (CNS))
Part
I:Executive Summary
Part
II: Detailed Analysis
Part
III: Proposed Amendments
Part
I: Executive Summary
This
proposal for a Council Regulation is the intended replacement
to the Dublin Convention in laying down the criteria and
mechanisms for determining the Member State responsible for
examining an asylum application lodged in one of the Member
States by a third country national.
There
has been considerable debate, to which ILPA has contributed,
on the Dublin Convention and its possible successor which was
instigated by the Commission's working paper entitled "Revisiting
the Dublin Convention: developing Community legislation for
determining which Member State is responsible for considering
an asylum application submitted in one of the Member States".
In that paper the Commission set out a number of options for
the successor to the Dublin Convention in terms of the
criteria to determine the State responsible for processing an
asylum claim. ILPA's view has long been that the Dublin
Convention was unworkable, in so far as it seeks to tie
responsibility for examining an asylum application with
responsibility for the applicant's entry into the European
Union and that it should instead be based on where the asylum
application is in fact lodged.
It
is very disappointing that the Commission has not taken the
opportunity to revise the criteria for determining
responsibility and that the proposed Regulation based on the
same principles as the Dublin Convention. Whilst it might be
considered that the tightening up of mechanisms in the
proposed Regulations will lead to the more successful
operation of the Regulation than its predecessor, ILPA doubts
that to be the case. Not only is the current proposed
Regulation unlikely to be successful in terms of reducing
multiple applications or secondary movements within the
European Union, it lacks the scope to respond to the
humanitarian concerns and to address the complex and
uncertain situation in which many asylum applicants find
themselves.
Scoreboard
1)
Compliance with the European Convention on Human Rights (ECHR)
3/10
2)
Compliance with other international treaties
3/10
3)
Compliance with the principles of EU migration and asylum
policy
4/10
4)
Safeguarding and strengthening rights at national level
3/10
Total
13/40
1)
This proposal does not comply with the European Convention on
Human Rights (the ECHR) and in particular the obligation
under Article 3 taken together with Article 1 to secure
rights within a Contracting State. Just as with the Dublin
Convention, an agreement between certain States which seeks
to transfer a person from one State to another without
examination of the individual case, will risk transferring
that person in breach of the ECHR.
As
the European Court of Human Rights observed in the case of T.I.
v United Kingdom (7 March 2000) "where States
establish international organisations, or mutatis mutandis
international agreements, to pursue co-operation in certain
fields of activities, there may be implications for the
protection of fundamental rights. It would be incompatible
with the purpose and object of the Convention if Contracting
States were thereby absolved from their responsibility under
the Convention in relation to the field of activity covered
by such attribution". For as long as there remains
difference in interpretation of international refugee law
amongst Member States of the European Union, it must be the
case that there is a risk that removal to one of the States
with more restrictive interpretation will lead to removal in
breach of Article 3 ECHR.
In
addition the lack of family reunification rights for those
who have been granted subsidiary protection may constitute a
breach of Article 8 ECHR. Finally the failure to recognise
the wishes of asylum applicants, their social, cultural and
other needs, may further be breach their rights under the
ECHR.
2)
As regards other international human rights instruments, as
observed below, whilst the 1951 Convention on the Status of
Refugee (the 1951 Convention) envisages a degree of choice
for applicants about where to claim asylum, the proposed
regulation does not. UNHCR Executive Committee Conclusion 15
makes clear that an asylum applicant with close links or
connections in a particular Member State should be allowed to
claim asylum there.
The
right to seek asylum contained in the Universal Declaration
on Human Rights is drastically undermined by a system, which
links allocation of responsibility for asylum applications to
responsibility for entry controls. This is because such
a system encourages individual Member States to prevent
asylum applicants from ever reaching their territory through
an ever increasing variety of control measures, including for
example the extensive use of stringent sanctions against
carriers
3)
At the European Council in Tampere the importance of both the
European Union and individual Member States respecting the
right to seek asylum was reaffirmed, as was the offer of
guarantees to those who seek protection in, or access to, the
European Union. This is seriously undermined by mechanisms,
which effectively seek to punish those States who allow
asylum applicants to gain access to the EU territory.
4)
Far from contributing to the safeguarding of rights at
national level, this proposed regulation undermines those
rights. It does so because it encourages Member States
to externalise their borders, to take repressive measures
against those seeking entry into their territory
and to encourage asylum applicants to move quickly on
to other Member States. In so far as a Member State can be
fined for knowingly tolerating asylum applicants on its
territory, this inevitably leads to Member States
denying access to basic social and living conditions, rather
than acknowledging their presence through offering
reception facilities.
Part
II: Detailed Anaylsis
Chapter
I: Subject Matter and Definitions
Article
2
1.
Article 2(i) - ILPA welcomes the expanded definition of
"family member" to include persons with a blood
relationship and in unmarried relationships. This is clearly
in keeping with the wider definition of family endorsed by
the European Court of Human Rights as well as UNHCR in its
Handbook on Procedures and Criteria for Determining Refugee
Status. However, ILPA is concerned at the introduction of the
concept of dependency and the necessity for the asylum
applicants to demonstrate that they lived in the same home in
the country of origin as another relation. This fails to take
into account complex and wide concepts of "family"
and de facto relationships which exist in different cultures.
2.
Furthermore, ILPA would seek to avoid a situation where
a family split up by the difficult circumstances in which
they left their country of origin was required to establish "dependency"
or other familial relationships by laborious means. The
simpler the definition of family members, the less need there
would be for inefficient and inhumane systems and concepts
for testing family relationships.
Chapter
II: General Principles
Article
3
3.
Article 3 refers to the criteria for determining which Member
State will be responsible for examining an asylum claim.
Commentary on such criteria is set out in detail below.
4.
It is notable that unlike the Dublin Convention there is no
reference in this provision to Member States’
international obligations. ILPA is extremely concerned that
Member States are reminded of their obligations under
international law, such as the European Convention on Human
Rights and the Convention against Torture, when they
undertake to examine asylum applications.
5.
Article 3(3) replicates a similar provision in the Dublin
Convention and permits a Member State to derogate from the
normal criteria and to examine an asylum claim even if it is
not that State's responsibility to do so. This is an
important provision, which allows for derogation where
humanitarian or other concerns compel a State to consider an
asylum application outside the normal criteria for
determining responsibility. However, in practice, the
equivalent provision of the Dublin Convention was rarely
invoked. This was due to the non-binding nature of the
provision, the lack of enforceability and in the lack of
guidance about appropriate cases for its application.
5.
ILPA is therefore concerned that such issues are not
addressed in the current Regulation. Article 3(3)
is silent as to the circumstances in which such derogation
might be appropriate (for example for humanitarian reasons).
.
6.
Moreover, the proposed Article 3(3) is considerably weaker
than the existing provision because of the lack of
requirement to obtain the consent of the asylum applicant for
derogation from the normal criteria. Whilst the explanatory
memorandum notes that it is unnecessary to obtain such
consent, since the asylum application is lodged in the Member
State concerned by the applicant, ILPA considers this to be a
necessary safeguard which should be included in the proposed
Regulation. An asylum applicant may be compelled to lodge an
asylum application for a number of reasons. This might not
preclude there being valid reasons for preferring the asylum
application to be considered in another Member State.
7.
In R (Ahmed Shah) v the Secretary of State for the Home
Department (12 March 2001) the court considered the case
of an asylum applicant with a residence permit for one Member
State, who, from force of circumstance, lodged an asylum
application in another Member State. Whilst such situation
might be thought to be rare, there is no empirical data to
suggest that this is necessarily so. There are other
circumstances (e.g. separation of family members) where the
State in which an application was lodged will not necessarily
be the applicant's informed or voluntary choice.
Article
4
8.
Article 4(3) - This provision concerns the situation where an
asylum applicant withdraws his or her asylum application and
makes an application for some other form of protection. The
provision suggests that the procedure for determining the
State responsible would continue. ILPA has concerns about the
legal basis of this provision. Whilst such
basis purports to be found in Article 63(1), this concerns
only those persons who apply for Geneva Convention refugee
status. It would seem clear therefore that the proper
scope of the Regulation is to enable its application to cover
only those with a pending Geneva Convention application.
It is surely the case that persons who, for whatever reason,
withdraw their application for recognition under the Geneva
Convention will thereby fall outside the scope of the
Regulation.
9.
In any event, ILPA also considers that the provision is
contrary to Member States’ obligations under other
international instruments. Considering both the very wide
diversity in non-1951 Convention protection offered by Member
States and low level of harmonisation between Member States
for any such subsidiary protection, it is impossible to
guarantee all types of protection in all Member States. As T.I.
v the United Kingdom (7 March 2000) well demonstrates,
Member States cannot avoid their individual ECHR
responsibilities by a notion of collective responsibility
under the Dublin (or any similar) Convention. In all the
circumstances Article 4(3) must be removed.
Chapter
III: Hierarchy of Criteria
Article
6
10.
The provision makes as first priority the reunification of an
unaccompanied minor with family members. ILPA welcomes the
provision as essential recognition of the vulnerability of
refugee children and prioritisation of their needs. ILPA
considers however that the provision must be applied flexibly
so as to ensure that where no blood relations are within the
European Union, the minor is able to be reunited with a
person with whom the minor shares a de facto relationship.
Furthermore, it is essential that the reunification of the
minor with family members is not delayed in any way and that
Member States take all possible steps to facilitate an
unaccompanied minor reuniting with his or her family members.
Article
7
11.
This provision makes as next priority the reunification of
family members where one has been recognised as a refugee in
one Member State. Again ILPA welcomes this provision as an
essential recognition of the importance of the need to
maintain family ties for asylum applicants. This will
obviously have an impact upon the emotional, social as well
as economic support, which the asylum applicants will receive
during the often stressful and uncertain determination
procedure.
12.
However ILPA considers that reunification should not be
restricted to Geneva Convention refugees; rather
reunification of family members should apply where any form
of subsidiary protection has been granted. There are a
large number of people who for various reasons accept
subsidiary protection. They will still be able to provide
stability and support to their family members who seek
international protection. Furthermore, their need and desire
to maintain family unity will be exactly the same as those
recognised as refugees. Such amendment would still fall
within the scope of Article 63(1), since it would simply set
out another criterion for allocating responsibility for
applications for recognition as a Geneva Convention refugee.
Article
8
13.
This article provides for family reunification for those
applicants whose family members are themselves asylum
applicants. However this is restricted to those persons who
are subject to the normal, rather than accelerated,
determination procedure. ILPA has expressed its strong
reservations to the two-speed procedure set out in the draft
directive on Minimum Standards on Procedures in Member States
for granting and withdrawing refugee status. ILPA is
extremely concerned to see a further differentiation between
the rights enjoyed by those being considered under the two
types of procedure. In this regard ILPA notes that the use of
the accelerated procedure may not simply relate to the
substance of the asylum application and it cannot be presumed
that those subject to accelerated procedure have ill-founded
claims. In any event undoubtedly there will be a degree of
inaccuracy in categorisation of claims and the accelerated
procedure does not automatically lead to a rejection of the
claim.
14.
ILPA considers that the same humanitarian and other
considerations will exist for those being dealt with under an
accelerated procedure as with those being dealt with under
the normal procedure. It is very frequently the case that
accelerated procedures are lengthy and in any event subject
to the same delays as normal procedures.
15.
The benefits of family reunification are felt not only by
asylum applicants themselves. There are also advantages to
Member States in terms of the stability and security which
family members can offer an asylum applicant.
Articles
9 to 13: Comment on criteria
16.
Articles 9 to 13 of the proposed Regulation apply essentially
the same criteria for determining responsibility for
examining an asylum application as are contained in the
Dublin Convention. ILPA's position is the same as it was to
the Commission's working paper ("Revisiting the
Dublin Convention: developing Community legislation for
determining which Member State is responsible for considering
an asylum application submitted in one of the Member States")
to which reference should be made.
17.
Articles 9 to 13 seek to make the Member State, which
permitted the asylum applicant to enter the European Union,
or the Member State, which was responsible for the applicant’s
entry or continued stay, responsible for examining the asylum
application. ILPA is fundamentally opposed to such
criteria for the following main reasons.
18.
First, it is both regrettable and undesirable that Member
States are effectively punished for allowing asylum
applicants to enter the territory of the European Union. The
increasing use of visas, carriers’ sanctions and other
means for preventing asylum applicants from reaching the
territory of the European Union means that there are
generally no lawful means available to asylum applicants
wishing to reach the European Union. Member States with
external borders should not be made to feel delinquent in
their duties as border guards for the Union merely because
asylum applicants appear to have passed into the Union
through their State. This is contrary to the 1951 Convention,
and the obligation on the part of Member States to offer
international protection and fulfil their international
obligations in good faith.
19.
In any event, the persistence on the part of the European
Union to stigmatise entry into the European Union in this way
has the undesirable consequences that as States on the
fringes resort to ever more draconian methods of patrolling
external borders, so asylum applicants correspondingly have
no choice but to resort to more dangerous means in order to
access the territory of the European Union.
20.
Whereas the Commission points to the desire to reduce
secondary movements within the European Union and multiple
applications, ILPA considers that the evidence from the
operation of the Dublin Convention suggests that the proposed
criteria for determining responsibility can not possibly have
that effect. Research commissioned by the Commission, carried
out by Bocker and Havinga, suggests that secondary movements
occur for a wide range of complex economic, social and
cultural reasons. It is ILPA's experience that the choice of
country is rarely based on pure economic motives, but is more
likely to be for family or cultural reasons.
21.
It is wholly inappropriate and lacking in humanity to
consider that those who do dare to express a desire as to the
country in which they claim asylum are making "abusive"
claims. Indeed as already stated the 1951 Convention itself
envisages a degree of applicant's choice (R v Uxbridge
Magistrates' Court, ex parte Adimi, [1999] 4 All ER 520)
and it is humane for Member States for applicants to be able
to make their claim in a country influenced by family,
cultural or other social ties.
22.
A system which ignores those reasons for secondary movements
will be unable to address them and will ultimately be unable
to prevent the desire to make the secondary movement. The
desire to make those secondary movements will translate into
the destruction of documentation and hazardous journeys being
made in order to avoid being sent to a Member State which for
that asylum applicant is seen as undesirable.
23.
The numerous legal challenges to the operation of the Dublin
Convention should demonstrate that even where the asylum
applicants do not resort to making hazardous journeys or to
the destruction of documentation, they will make whatever
legal challenges possible. The success of these
challenges (certainly in the United Kingdom) indicates
that courts recognise the concerns of
asylum applicants, are suspicious of administration and on
occasions the legal approaches in other Member States (particularly
in relation to the divergent approach to ‘non state
agents’ of persecution). This tears apart the solidarity
of the Community and will ultimately undermine the "harmonisation"
process envisaged by the Tampere European Council.
24.
The experience from the operation of the Dublin Convention
demonstrates that in practice only a small number of asylum
applicants are in fact transferred to another Member State.
Thus the proposed Regulation relates to an extremely small
proportion of asylum applications in any event. However,
the cost of operating such system is disproportionately
high. Member States would surely be better advised spending
those resources on the improvement of their
asylum procedures so as to ensure that all claims can be
dealt with efficiently and fairly in the future.
25.
The Commission, in its explanatory memorandum, considers that
standards still diverge too much to have an applicant’s
choice system at this point in time, and there would
be a risk of harmonisation downwards to the lowest standards.
ILPA likewise would not wish to see any downward
harmonisation of asylum procedures or standards of refugee
recognition. However ILPA considers that it would be simple
enough to protect against Member States lowering their
standards by including a standstill clause in the directive
relating to the harmonisation of asylum procedures, criteria
and reception conditions.
26.
It is with these points in mind that ILPA considers that
Articles 9 to 13 should be entirely replaced with a new set
of criteria based on allocation of responsibility according
to the State in which the asylum application is lodged
thereby providing an element of choice for the asylum
applicant. Not only would this lead to greater certainty, but
it would reduce the likelihood of secondary movements.
It would certainly be a more humane system and it would
also be one more in keeping with with Member States'
international obligations..
Articles
9 to 13: Comment on mechanisms
27.
In addition to the concerns set out above about the general
criteria for determining responsibility for asylum claims,
ILPA believes that the mechanics of the system set out in
Articles 9 to 13 are entirely unworkable.
28.
Articles 10 and 12 refer to the irregular crossing of borders
into a Member State of the European Union and the knowing and
unknowing toleration of persons on the territory of a Member
State in order to determine responsibility.
29.
ILPA considers that experience of the operation of the Dublin
Convention demonstrates that it is extremely difficult
to prove that a person has been present in another Member
State unless that Member State has properly recorded their
presence. Undoubtedly it is envisaged that the operation of
Eurodac will facilitate this. However, ILPA submits
that to the extent that Member States with external
borders punished for allowing asylum applicants into the
European Union, there will always be incentive for
those States to avoid recording the presence or entry of the
asylum applicants.
30.
ILPA believes that the provisions might lead to situations
where Member States encourage third country nationals to move
on into other Member States quickly in order to avoid the
time period set out in Articles 10 and 12 being clocked up,
rather than documenting or recording their presence. It will
be extremely difficult for one Member State to prove that
another Member State "knowingly" tolerated the
presence of an asylum applicant on its territory, and
this will inevitably lead to distrust between Member
States.
31.
Indeed ILPA considers that the operation of Eurodac which is
necessitated by the Dublin Convention system and the need to
establish which State permitted the asylum applicant to enter
the EU territory, will be extremely cumbersome and
expensive. A system based on where the application is
lodged would significantly reduce the costs of operating
Eurodac.
Article
14
32.
Article 14 provides that where no Member State responsible
for examining the asylum application can be designated it is
the Member State with which the asylum application is lodged
which should be responsible for examining it. ILPA welcomes
this provision in that unlike most of the preceding criteria,
it is workable, effective and humane. It will ensure that
identification of the responsible State for examining an
application is swift and not burdened by the need for
bureaucratic and cumbersome systems of negotiation between
Member States.
33.
ILPA considers that this provision is fair and humane and
reflects the principles set out in the UNHCR Executive
Committee Conclusion No. 15 which states that “the
intentions of the asylum seeker as regards the country in
which he wishes to request asylum should as far as possible
be taken into account”. It is only regrettable that this
principle is not taken as the first principle for determining
which Member State is responsible for examining an asylum
application.
Article
15
34.
Article 15 provides that where family members submit
applications to the same Member State at the same time or
close together in time, but the operation of the Regulation
would lead them to being separated, then the family unit
should be maintained by the Member State responsible for the
largest number of them examining all the claims or by the
Member State responsible for the oldest family member’s
claim examining all the claim. ILPA welcomes this proposal in
so far as it recognises the need to maintain family unit.
However this provision would not be necessary if the
allocation system was based on where the asylum application
is lodged.
Chapter
IV: Humanitarian Clause
Article
16
35.
The retention of the humanitarian clause from the Dublin
Convention is welcomed. However as with the Dublin Convention
the effectiveness of this provision is almost nullified by
its lack of enforceability and the discretionary nature of
its application by Member States. ILPA's experience of the
Dublin Convention is that Member States are reluctant
to apply the humanitarian clause. ILPA believes that
this is because of concern that the exception would
become the rule; yet the reality is that it has been rarely,
if ever, applied.
Chapter
V: Taking Charge and Taking Back
Article
18
36.
In general Article 18 provides that requests for taking back
by another Member State should be made within 65 days. ILPA
welcomes the shorter time periods in which a Member State can
call upon another Member State to take back an asylum
applicant. In general ILPA considers that the long delays
experienced under the Dublin Convention before requests were
even made lead to uncertainty for asylum applicants.
This is obviously made even more undesirable where the asylum
applicant is detained pending removal to another
Member State.
Article
19
37.
This provision requires the requested Member State to respond
within one month to a request to take back, or be
deemed to have accepted responsibility. ILPA welcomes shorter
time periods in so far as they provide greater certainty for
asylum applicants, particularly where they may be detained.
However ILPA is extremely concerned that these provisions may
result in the bouncing of asylum applicants from one Member
State to another where a Member State is deemed to
accept responsibility in the absence of any decision. ILPA
considers it wholly undesirable that a person can be
transferred on notification only given the likelihood that
the receiving Member State will refuse to accept
responsibility and reject the applicant or attempt to
transfer him or her elsewhere.
Article
20
38.
This provision lays down the procedures which for
the communication of decisions concerning inadmissibility
of an application where responsibility for its
examination lies on another Member State. It also
provides that there should be an appeal to the courts against
such a decision. However this will not have suspensive effect.
39.
ILPA welcomes the inclusion of an appeal and considers that
this to be consistent with Member States’
obligations under Article 13 ECHR .
40.
However, what the proposed Regulation seeks to give with one
hand, it takes away with the other because the appeal
does not have suspensive effect. The Explanatory Memorandum
comments on this provision as follows: "Since a
transfer to another Member State is not likely to cause the
person concerned serious loss that is hard to make good, it
is not necessary for the performance of the transfer to be
suspended pending the outcome of the proceedings."
41.
ILPA does not accept this rationale. First, it is
extremely difficult for an asylum applicant who has been
removed from the jurisdiction to maintain contact with
lawyers who would necessary have to conduct the appeal. Most
asylum applicants lead a hand to mouth existence and
international communications are likely to be
impossible. The problems are multiplied if the asylum
applicant does not have a legal representative before the
transfer takes place and if the removal means that the
applicant is no longer entitled to legal aid to contest the
decision. Second, the asylum applicant may have
been moved onward to some other country (whether the country
of origin or some other country which the State responsible
has persuaded to deal with the asylum application) before the
appeal is determined. In these cases, even if successful, the
appeal is likely to be of little advantage to the asylum
applicant.
42.
Plainly the appeal right is meant to confer a real and
effective means of challenge to the transfer decision. On
this basis such appeal must be suspensive if it is not in
practice to be rendered meaningless.
43.
The same objection applies to the non-suspensive character of
the appeal in Article 21(1)(f).
Chapter
VI: Administrative Co-operation
Article
24
44.
This provision permits Member States to enter into bilateral
agreements concerning the implementation of the Proposal.
ILPA is concerned that any such bilateral agreements are not
a mechanism to circumvent an asylum applicant’s
procedural rights. It is imperative therefore that such
bilateral agreements are only approved by the Commission
where they clearly safeguard the rights of the asylum seeker.
Part
III: Amendments
1)
Article 2(k) should be replaced as follows:
"subsidiary
protection” shall have the meaning prescribed in Article
2(g) of Directive 2002/xx [on definition of refugees
and subsidiary protection]
Because
of the amendments set out below, there is no longer a need to
define “visa”, but there is a need to define “subsidiary
protection”.
2)
Article 3(1) should be amended as follows:
“An
asylum application shall be examined by a single Member State
in accordance with its international obligations”
Member
States should recall their international obligations when
they undertake to examine asylum applications.
3)
Article 3(3) should be amended as follows:
“…is
not its responsibility under the criteria of this Regulation,
provided that the applicant consents”.
It
is essential that the Regulation, like the Dublin Convention,
require the consent of the applicant for any variation from
its rules.
4)
Article 4(3) should be deleted.
This
provision goes beyond the legal base of Article 63(1), and
would violate the Member States’ international human
rights obligations.
5)
A new Article 7(2) should be added as follows:
"Paragraph
1 shall apply mutatis mutandis where an asylum-seeker has a
member of his family who has subsidiary protection status in
a Member State".
Family
reunion should also be guaranteed for asylum-seekers whose
family member has subsidiary protection status, in particular
since no proposed or adopted Community measure would ensure
family reunion for such persons.
6)
Article 8(1) should be amended as follows:
“…being
examined in a Member State [four words deleted] within
the meaning of…”
Family
reunion should also be ensured for persons subject to the
“accelerated” procedure.
7)
Article 8(2) should be replaced by the following:
"Paragraph
1 shall apply mutatis mutandis where an asylum-seeker has a
member of his family whose application for subsidiary
protection is being examined in a Member State"
Family
reunion should also be guaranteed for asylum-seekers whose
family member has applied for subsidiary protection, in
particular since no proposed or adopted Community measure
would ensure family reunion for such persons.
8)
Articles 9 to 13 should be deleted
The
principle of allocating responsibility without consent of the
asylum-seeker is expensive, unworkable, and risks breaching
Member States’ human rights obligations.
9)
A new Article 14(2) should be added as follows:
"Where
it appears that an applicant, before requesting asylum in a
Member State, already had a connection or close links with a
Member State, a Member State may, if it appears fair and
reasonable, call upon the applicant to apply for asylum in
that other Member State. If the applicant and the other
Member State consent, Article 3(3) shall apply mutatis
mutandis. If either the applicant or the other Member
State, or both, do not consent, paragraph 1 shall apply".
This
provision is based on the wording of UNHCR Executive
Committee Conclusion 15, which envisions the possibility of
requesting asylum seekers to consider making their asylum
request in another Member State instead. The suggested
paragraph spells out the consequences of the asylum-seeker’s
and the other Member State’s consent to this request,
and also of their lack of consent.
10)
Article 20(2) should be amended as follows:
“Appeal
shall [word deleted] suspend…”
An
appeal without suspensive effect is meaningless.
11)
Article 21(1)(f) should be amended as follows:
“Appeal
shall [word deleted] suspend the performance…”
An
appeal without suspensive effect is meaningless.
12)
Article 24(1)(b) should be amended as follows:
“…and
take back, provided that the applicant consents.”
This
safeguard is needed to prevent this option from being used to
circumvent applicants’ rights.
13)
Article 24(1)(c) should be deleted.
This
deletion is a consequence of the deletion of Articles 9 to 13.
14)
Article 24(2) should be amended as follows:-
“…after
it has checked that they do not infringe this Regulation and
do not hinder access to the asylum applicant’s access to
the asylum procedure”
Bilateral
agreements between Member States must not infringe asylum
applicants’ procedural rights.
15)
A new Article 25(4) should be added as follows:
“With
effect from the date mentioned in the second paragraph of
Article 31 of this Regulation, Articles 8 and 10 of
Regulation 2725/2000 shall be deleted.”
This
follows from the change in the criteria for responsibility.
Consequential amendments will also have to be made to
Articles 9, 13 and 15 of that Regulation.
16)
A new Article 25a should be added as follows:
“This
Regulation shall be without prejudice to Articles 15 and 18
of Directive 2001/55.”
The
Regulation needs to state expressly that the rules on
responsibility and family reunion in the temporary protection
directive are not affected by it.
17)
A new Article 29(4) should be added as follows:
“Without
prejudice to Regulation 1049/2001 and Decision 1999/468,
proposed implementing measures shall be made available to the
public, including by electronic means, in sufficient time to
ensure adequate opportunity for scrutiny and comment by the
European Parliament, national parliaments, regional and local
governments and the public.”
Given
the importance of the implementing measures to be adopted,
there needs to be a special provision allowing for effective
scrutiny by parliaments and civil society, supplementing the
right of public access to documents implemented by Regulation
1049/2001 and the special provisions for transmitting
information to the EP contained in the ‘comitology
decision’.