Last Updated: Tuesday, 21 November 2017, 15:02 GMT

UNHCR's Position on the Proposal of the European Council concerning the Treatment of Asylum Applications from Citizens of European Union Member States

Publisher UN High Commissioner for Refugees (UNHCR)
Publication Date 1 January 1997
Cite as UN High Commissioner for Refugees (UNHCR), UNHCR's Position on the Proposal of the European Council concerning the Treatment of Asylum Applications from Citizens of European Union Member States, 1 January 1997, available at: http://www.refworld.org/docid/3ae6b31d2b.html [accessed 21 November 2017]

1. At the Dublin Summit of 13 and 14 December 1996, the European Council called upon the Intergovernmental Conference to develop the important proposal to amend the treaties to establish it as a clear principle that no citizen of a Member State of the Union may apply for asylum in another Member State, taking into account international treaties. This proposal raises the following concerns from the viewpoint of international refugee law.

2. Access for all asylum seekers-without any discrimination as to country of origin-to fair and efficient procedures for the determination of refugee status is a basic pre-requisite of international refugee protection, which has repeatedly been affirmed by the UNHCR Executive Committee and by the United Nations General Assembly. Unless asylum seekers are afforded access to determination procedures, it is impossible for States to know who is a refugee requiring international protection, and for a refugee to enjoy the minimum guarantees of safety and security to which such person is entitled.

3. The decision as to whether a person qualifies as a refugee is taken by each State in accordance with its own established procedures, consistent with international standards, on the basis of the criteria laid down in Article 1 of the 1951 Convention. The implementation of the 1951 Convention/1967 Protocol requires the individual determination of refugee status, including an assessment of the subjective element of fear of persecution. It is impossible, realistically speaking, to exclude the possibility that an individual could have a well-founded fear of persecution in any particular country however great its attachment to human rights and the rule of law. While a highly sophisticated democratic order and an elaborate system of legal safeguards, as well as of judicial and administrative remedies, allow for a general presumption of safety, the need for international protection cannot be excluded absolutely and categorically in every case. Nor, regrettably, can fundamental changes in the political system or in the human rights situation of any State. The only exception made to the requirement of individual determinations, as a matter of practicality, is in situations of positive group determination in case of large-scale influxes.

4. All Member States of the European Union are States parties to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and have thus adopted a refugee definition without any limitations as to country of origin. Such an automatic bar to refugee status determination, introduced by a provision in another legally binding treaty, could result in a partial but essential modification of Article 1 of the 1951 Convention, as revised by the 1967 Protocol. The proposed modification would, in effect, introduce a posteriori a geographical limitation to the application of the refugee definition, as contained in Article 1 A (2) of the 1951 Convention. This is incompatible with the 1967 Protocol and the fact that any such previously existing limitation has been removed by the Member States of the Union. The proposed amendment would, furthermore, be inconsistent with Article 3 of the 1951 Convention that requires States to apply its provisions without discrimination as to country of origin. The above-mentioned concerns can, however, not be remedied by mere reference to the need to take international treaties into account.

5. In short, the modification of the Treaties as proposed would affect the very essence of international refugee law since the provision to be adopted in a subsequent international convention between fifteen Contracting States alone would restrict the definition of its beneficiaries. Any such partial derogation from the refugee definition, as contained in Article 1 of the 1951 convention/1967 Protocol, to which reservations are prohibited in accordance with Article 42 of the 1951 convention, would be incompatible with the object and purposes of these instruments as a whole. The essential purpose of these two international conventions is to provide for a universally applicable legal regime that ensures protection to an internationally defined group of persons who are in a particularly vulnerable situation. The universal and unconditional application of the international refugee instruments has repeatedly been emphasised by the international community. The UNHCR Executive committee and the General Assembly only last year invited States parties to these instruments to review any reservations with a view to their withdrawal.

6. In addition, the precedent value of such a development is cause for concern. The ripple effects may be considerable, and this concept may well be followed by other regions, with the inherent danger of undermining the scope of the applicability of the international refugee instruments universally. It may also erode the humanitarian nature of asylum by complicating relations with non-EU States.

7. Finally, the Office has consistently opposed the use of the notion of safe country of origin as an automatic bar to access to asylum procedures. Where the notion of safe country of origin is used as a procedural tool to channel certain applications into accelerated procedures, or where its use has an evidentiary function, the Office has had no objection, as long as the presumption of safety is rebuttable in a fair procedure. This understanding is generally followed in the state practice of most EU Member States, as inter alia, exemplified by the Conclusion of the EC Immigration Ministers adopted at their meeting of 30 November and 1 December 1992 on countries where there is generally no serious risk of persecution. The assessment, on the basis of objective and verifiable information, of conditions prevailing in a particular country may give rise to a rebuttable presumption concerning the general absence of a serious risk of persecution, but should not automatically result in the refusal of all asylum applications from its nationals or their exclusion from individualized determination procedures (paragraph 3 of this Conclusion). The proposed amendment would, in effect, detract substantively from this position and codify the opposite view in an international treaty.

8. In conclusion, the Office hopes that any changes in the European Union Treaty will inter alia facilitate the adoption of a coherent and comprehensive European asylum policy, promoting common standards of protection that are consonant with internationally agreed standards. For the above reasons, UNHCR advises against introducing such an amendment, which would be at variance with international obligations that all Member States of the Union have undertaken.

9. The position of the Office here parallels the position of the Council of Ministers of Justice and Home Affairs in its Resolution adopted at its meeting of 20 June 1995 on minimum guarantees for asylum procedures. It was agreed in this position that a particularly rapid or simplified procedure will be applied to an asylum application lodged by a national of another Member State, in accordance with each Member State's rules and practice. The council specified in this regard that the Member States continue to be obliged to examine individually every application for asylum, as provided by the Geneva Convention to which the Treaty on European Union refers (paragraph 20 of this Resolution). It would clearly be preferable to address the treatment of asylum requests from nationals of other Member States by operation of this Resolution than through altering the scope of application of the international refugee instruments between EU Member States alone.

Office of the United Nations High Commissioner for Refugees
Geneva, January 1997

Search Refworld