GREEN PAPER on the future Common European Asylum System ANSWERED BY RESCATE

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1 To the Immigration and Asylum Unit "Green Paper on Asylum" Directorate General Justice, Freedom and Security European Commission B-1049 Brussels JLS-asile-livre-vert@ec.europa.eu GREEN PAPER on the future Common European Asylum System ANSWERED BY RESCATE 1. RESCATE ORGANISATIONAL BACKGROUND RESCATE Comité Internacional de Rescate España - is a Spanish, non-governmental, not-for-profit organization which has been dedicated since 1960 to the service of refugees and of communities suffering from oppression, armed conflicts or major political or social crises. Its mission is to help such populations to find a lasting solution to their situations and facilitate their access to their fundamental rights. Given their particular vulnerability in conflict situations, RESCATE activities prioritize the special needs of women and children. RESCATE commenced its activity in Spain in 1960, as part of the International Rescue Committee (IRC) network. Initially dedicated to the resettlement to third countries of refugees arriving in Spain, RESCATE began to support the integration of refugees into Spanish society after the formulation of the country s first asylum law in Since 1996, the organization has also participated in a variety of reconstruction and development projects in countries affected by armed conflicts or natural disasters. In 1992, RESCATE reconstituted itself as a legally autonomous, Spanish nongovernmental organization. RESCATE currently carries out the following activities in Spain and abroad: I. In Spain: 1. Support for the integration of refugees through legal counselling, social and labour orientation and family reunification. 2. Voluntary repatriation of refugees, as well as resettlement in third countries. 3. Public awareness activities. II. In countries that have undergone armed conflict or natural disasters: 1. Access to basic needs (food security, health, education) 2. Income generation projects 2. LEGISLATIVE INSTRUMENTS 2.1. Processing of asylum applications (1) How might a common asylum procedure be achieved? Which aspects should be considered for further law approximation? Member States have stressed that a Common European Asylum System is desirable and achievable, and consequently they have approved its establishment. It is time now that Member States do a strong internal auto-criticism exercise to analyse and solve the existing obstacles and to answer to why in the practice they act blocking the instauration of the Common European Asylum System. Since 1990, with the approval of the Dublin Convention, Member States decided to approximate their asylum systems. Today, systems to provide international protection to those in need of it vary greatly amongst Member States. Substantial differences persist, both in the procedures and in the statute of protection provided. For example, some European States recognise 3 rd parties other than States as actors of persecution and others do not. This should be solved now with art. 6 of the Qualification Directive, which introduces EN 1

2 us to another big barrier to the process towards a Common European Asylum System: Directives fail to be transposed at the time they should be. Transposition of directives must be carefully watched. Not only for them to be effectively and fully transposed to national legal systems (for the time being, none of them have been fully transposed in Spain and in many other countries too), but also the content of what is transposed (interpretations, internal measures and regulations, transposition of every disposition of the Directives, etc). As an example, Spain says to have transposed the Reception Directive, but hasn t incorporated an essential disposition: art The Commission is in theory in charge of this control, but control in this matter is quite difficult to provide. For this reason, it is absolutely necessary that Member States make things easier, collaborating more in transposition and informing the Commission of equivalences of measures adopted to transpose the Directives. Also it has become clear that what has been done in the theoretically now concluded 1 st phase is clearly insufficient to reach the proposed objective on As the European Parliament has emphasised, minimums should be abandoned because the quality of protection can be seriously at risk. In the 2 nd phase of Common European Asylum System it is time for the States to act, to compromise and to be consequent. It is necessary to overcome political and technical difficulties that exist in the present moment. European Union financed programmes such as those contemplated in the framework programme on Solidarity and Management of Migration Flows, to support Member States which have most of the migration and asylum pressure, to compensate the difference in this sense between different countries. On the other hand, Member States should commit the necessary resources to the asylum system because if they don t backlogs will never be solved, interfering with the effectiveness of the asylum system. Further law approximation should consider the following aspects: For a start, Member States do not cooperate as they should, in order to discover best practices and innovative practical issues. If a common asylum procedure is to be achieved, stronger cooperation is completely necessary immediately. In the second place, further law approximation should never lose perspective of providing the highest level of protection to asylum seekers, in compliance with the Geneva Convention and Human Rights International Law. The right to seek asylum should be fully respected (public awareness must be improved and specific training provided specially to authorities) and asylum applications should be registered immediately. Another issue to bear in mind is that the establishment of a single procedure that does makes no distinction for inland and border applicants would be desirable. It is important to establish time limits to prevent the procedure from being too extent, and consequently leaving the asylum seeker in a vulnerable situation. Time limits would also establish minimum periods that allow decision makers enough time to prepare all necessary file work leading to a fair decision and, at the same time, allow asylum seekers a period of rest from their journey and to prepare physically and psychologically for their interview (a reasonable period would be 4 weeks, extensible if psychiatric intervention is necessary, that will provide enough time to contact with the legal adviser and prepare for the interview). Admissibility examination should only take place when determining the responsibility of another State to examine the Asylum application. Secondly, this should be limited to two cases: when a claim has been already issued in another State or when the asylum seeker has a family member in another State provided he/she consents. If governments, with their asylum and immigration policies have directly or indirectly permitted and promoted opinions and feelings such as the idea that there are already too many foreigners in Europe or inducing even xenophobic attitudes and a collective will to prevent people to come to European Union, governments too should be responsible for the spread of the public awareness and sensitiveness in asylum and refugees issues. This is important because these attitudes and beliefs are directly in relation with the policies and the decisions in asylum cases, where violation of non refoulement principle and not permitting people in need of international protection reach European Union occur with disturbing frequency. (2) How might the effectiveness of access to the asylum procedure be further enhanced? More generally, what aspects of the asylum process as currently regulated should be improved, in terms of both efficiency and protection guarantees? Regarding the first question, as mentioned in the previous answer, more cooperation between Member States is needed, sharing best practices and taking into account expertise opinions and experiences. EN 2

3 It is also important to have in mind that carriers need an appropriate training and formation in asylum issues if they are to deal with an imposed responsibility in controlling access of people to the European Union. On top of this, a necessary mention has to be done to the irregularities that frequently take place in borders. It is not rare to find those who have asked for asylum and have been completely ignored by the authorities at their arrival at the airport. At the moment of the identification of a newly arrived, information about asylum should be systematically provided. In case that the newly arrived shows any kind of interest, the information should become more detailed, including information about the asylum procedure, NGOs that can help, etc. Therefore, more training and formation in asylum issues and human rights is needed, information to be given to people that arrive at the European Union, more coordination between Asylum Office, NGOs, and UNHCR (and creation of institutionalized channels for this in case there are none). It is also very important to take into account the sufficient number of human resources devoted to the reception of newly arrived people and to asylum procedures. Answering the second question, to ensure the efficiency and the protection of guarantees in the asylum process, the goals to be set should be the improvement of the decision making quality and the achievement of procedures that respecting all protection principles are not delayed unnecessarily. Achieving more efficiency in asylum systems should never be managed at the expense of asylum seekers rights and correct decision making. Quality should be the priority and efficiency should preserve and encourage high quality procedures and protection. In order to ensure this, the adoption of mechanisms to assess and control the quality of decisions should be considered. Another point to seriously entertain is that the tendency of transferring responsibilities of Member States to border Third States, such as Morocco, Libya or Ukraine, should stop. Member States might be relaxed because the agreements signed between these countries and the European Union include a prototype clause for the respect of Human Rights. In fact this is systematically done in every international instrument signed by the European Union. But there is enough evidence that in countries such as the ones mentioned before, violations of Human Rights occur with enough frequency and intensity that cannot be ignored by European States. When dealing with the arrival of mixed migration flows, EU Member States must ensure that everyone that needs protection receives it. Consequently, the European Union must cease in being so centred in preventing the access to Europe and stop ignoring that their actions can represent a breach of the obligations assumed under the 1951 Geneva Convention. Procedures today have been transformed into techniques in which it is intended to screen out as many applications as possible, instead of focusing on identifying persons in need of protection. This is a consequence of the culture of disbelief in which most asylum seekers are presumed to be abusing the system. Procedures often are characterised by deficiency of legal and procedural safeguards that are necessary to comply with the principle of non refoulement. In controlling irregular migration, the specific guarantees to ensure respect for fundamental rights are essential. There must be some sort of mechanism of control to assure their effective and transparent application without any exception. Other than formally indicating that Human Rights will be respected (the European Union does not miss any occasion to praise this), further provisions must be provided to specified specific control mechanisms, complaint resorts, instances that supervise detention or interception procedures, etc. A huge effort must be placed in raising awareness within the European societies about what means to be a refugee and about the need for protection of asylum seekers. At the same time, work must be done for the training of professionals on asylum and refugee issues. Finally, a short mention to the possibility of resettlement schemes being established to help in the access of those in need of international protection. In this sense, the European Union must explore other possible solutions, such as the instaurations of Protected Entry Procedures, to avoid infringing fundamental rights of people that seek for international protection. (3) Which, if any, existing notions and procedural devices should be reconsidered? For the time being, asylum procedures frequently incur in violations of fundamental rights of the asylum seeker, often resulting in unfair judicial resolutions that need long and expensive appellations to correct themselves. The difficult or impossible access of refugees and asylum seekers to the European Union due to barriers such as carrier liability, 3 rd Safe Country should also be reconsidered. As mentioned above, if carriers have to continue assuming the inappropriate role of controlling legal access to EU, they should be prepared and trained in the international protection laws. EN 3

4 Authorities must also have clear that the fulfilment of visa requirements or passport can be excused in the case of refugees and asylum seekers. This spirit should be transmitted to carriers if the States persist in transferring liability to them. States should also control and narrow the notions of national security and public safety and the way they are to be applied. Another alarming procedure device is the one under art. 11. d of the Procedures Directive (search of asylum seekers), where the necessity of it being provided is not clear and doubts arise concerning its legality. Finally, the concept of 3 rd safe country if anything, should be taken flexibly, allowing to examine every individual petition and not inadmitting directly. Concepts such as 3 rd Safe countries or 1 st asylum country can t be observed without considering the necessary exceptions to their application. They must include guarantees to ensure access to a fair asylum procedure above all other circumstances. The European Union has too often used these concepts as a measure of contention to reach European Union, following political interests instead of being objective and truthful to the reality of 3 rd Countries. On top of the problem of the decisive criteria used in the elaboration of a catalogue of 3 rd countries, there are others related (for example, how frequently must that catalogue be actualised, how must it be revised, etc.). It is absolutely necessary to have thorough definitions to the principal concepts related to asylum procedure. The Procedure Directive provides common definitions that some Member States were lacking, and consequently leaving it open to the interpretation of the asylum instructor. UNHCR had established guidelines, but not as exhaustive as the definitions in the Procedure Directive. For the time being, the problem is that this Directive has not been yet transposed. (4) How should a mandatory single procedure be designed? A single procedure that makes no distinction for inland and border applications is advisable, because all asylum seekers must have access to a fair determination procedure. In order to allow that border asylum seekers have the same reception conditions and the same protection guarantees that inland applicants, more and sufficient human and financial resources must be allocated to the single procedure. In a different sense, in Spain there is a unique procedure to determine whether asylum or subsidiary protection is to be granted. This generates two main problems that could easily be avoided. In the first place, there are cases where it is clear that subsidiary protection is more appropriate than asylum but, as asylum obligatorily has to be examined first, the procedure is unnecessarily delayed. This problem would be solved addressing the main problem exposed: controlling the efficiency of the process and reducing the exaggerated long procedures, with imposition of time limits and allocation of more resources. In the second place, there seems to be confusion regarding the subsidiary protection. Spanish legislation does not mention any clear definition or criteria. The non transposed Procedures Directive would mend this legal emptiness, establishing the criteria to determine whether asylum or subsidiary protection is appropriate. It is important that these criteria are applied by all Member States in a similar manner. A slightly different issue is that in practice, in Spain, due to the Dublin system or plainly to absolute ignorance, many potential international protection seekers end up asking for permits according to the exceptional circumstances provision under the Immigration Law which is completely arbitrary. In Spain, the figure of subsidiary protection is quite confusing because it is a mixture of asylum and immigration laws, where no clear criteria have been established. This generates discrimination, inequality and legal uncertainty. (5) What might be possible models for the joint processing of asylum applications? As mention before, it is important that all Member states transpose and implement common dispositions. In the application of European law it is essential a common interpretation, to provide that a Common European Asylum System can be a reality. A common mechanism of control must be established (for example, the creation of an Organism that could depend of the European Court of Justice or another European Institution and that would take close watch of these State practices, monitoring those where the level of discretion and interpretation break the spirit of what s intended). If this is not provided, the common system will not be achieved. EN 4

5 Encouraging the sharing of State practices would help the harmonisation of the law and of its interpretations. It is also important to share common sources of information (not only of applicants, but also country of origin information. The model should ensuring all the Member States have the same capacities in order to implement such procedure, and all the guarantees for the asylum seekers which are established under international law binding all Member States. This will in some cases need more financial and human resources and administrative reforms to improve efficiency Reception conditions for asylum seekers (6) In what areas should the current wide margin of discretion allowed by the Directive's provisions be limited in order to achieve a meaningful level-playing field, at an appropriate standard of treatment? First of all, we outstand the something should be done regarding the total inactivity for the transposition of directives, breaching the due date established for the internal transposition of them. If transposition had taken place as it was due, a proper evaluation would have taken place and this question could be better answered. In particular, Spanish authorities proclaim to have transposed already the Reception Directive despite the minimums it contains have not been fully incorporated to national law. As an example I can point out that according to art of the Directive, inadmitted or rejected asylum seekers should be permitted to reside and work legally in the Member State while they are appealing the unfavourable resolution until a final pronunciation has been made. In all the areas where discretion needs to be limited, Member States will lose the possibility to establish a more favourable condition (anyway, States rarely would establish a more favourable condition if it hadn t had beforehand). This should be taken into account, harmonising to the most favourable condition in every case. There should be similar conditions in every Member State regarding material (resources and services), technical and professional points of view. Reception facilities in each Member State must be harmonised taking into account the peculiarities of each system and the asylum pressure they are subject to. They must be provided with enough economic resources, infrastructure, adequate means to function correctly and must count with a multidisciplinary staff (social workers, psychologist, employment worker, lawyer, doctor, etc), all of them specialised in asylum issues. Reception capacities of each Member States can be compared taking into account the peculiarities of each system and the pressure they are subject to. In Spain, there are four State Reception Centres for Refugees. The rest of the reception resources are managed by NGOs. These NGOs never count with enough resources to provide an adequate reception within the mandatory minimums accorded by the Reception Directive. Both the four Reception Centres and the ones managed by NGOs are ruled by instructions of the General Direction for the Integration of Immigrants (within the Labour Ministry), but for the time being, the supervision over the application of the instructions is carried out in a very relaxed way. It is difficult to guarantee the adequate conditions of reception of those in need of international protection if States do not at least apply minimums and allocate enough budget provisions to the management of reception programmes. It would also help that States provided more detailed guidelines, according to European Directives, and more control over the budget expense establishing clear criteria over how to spend it, précising in areas such as infrastructures, quantity of staff and training of the existing staff. Otherwise, the minimums that theoretically ought to be transposed will never be effectively applied. In general, discretion should be limited to contemplate an integral social protection system, harmonising and detailing the contents of social protection, quantities and extension of the economic assistance that should be given to asylum seekers. A common performance protocol should be elaborated. Another issue to be considered is that in Spain the requirements to register in the census have been hardened, and this adds difficulties to the access to social services, education and health services. Access to these minimums is essential to comply with basic rights of all human beings, according to international human rights law assumed by all European States. EN 5

6 (7) In particular, should the form and the level of the material reception conditions granted to asylum seekers be further harmonised? Of curse, further harmonisation must be pursued in order to obtain an efficient, equal and coherent Common European Asylum System. Measures should be taken to provide that all the Member States can reach such harmonisation, and the burden of reception assistance must be shared between all Member States. Harmonisation needs funding in order to compensate and ensure the accorded fair reception conditions (not minimums) provided to asylum seekers equally by every Member State, especially by those supporting a greater asylum pressure. Detailed criteria must be set out to assign funds among Member States baring in mind the number of asylum seekers that arrive and live in the country, the economic wealth of the country and the actual situation and necessities of States Reception Facilities. Concerning reception, the adequate reception facilities must be provided for the full duration of the asylum determination process, since the moment of registration of the application and attending to specific needs in a case to case basis. For example, if the necessity of specific training or language course is detected, it should be provided despite the asylum seeker is already working. At a social level, it is important to enable enough specific resources to facilitate intervention in this field of action. In reception facilities, work must be directed to manage autonomy, adaptation and integration once they leave the facilities. It should be good to allow alternatives to the existing reception facilities, if advisable in an individual case to case basis. In Spain, reception assistance only lasts for 6 months (after they are provided with administrative authorisation to work) and the asylum seeker must accept the reception assistance that the state can offer and if they refuse they will receive no assistance at all. This system is not free of flaws. One of the biggest problems is that in many cases after the initial 6 months the asylum seeker will fall under an unattended situation of vulnerability. Very frequently, asylum seekers present added problems and circumstances that make it very difficult to be autonomous and economically independent in only 6 months. At a psychological level, it is important to provide this resource in all reception facilities of Member States and in all programmes managed either by the Reception Centres or by NGOs. These professionals must be specialised in asylum issues and in Post-traumatic Stress Disorder. (8) Should national rules on access to the labour market be further approximated? If yes, in which aspects? At a labour level, the period that asylum seekers must wait until they are allowed to work must be harmonised and reduced considerably. There is no reason not to permit lucrative activities since the moment the asylum application is admitted. Access to the labour market is good for the integration process of all asylum seekers and would be less expensive for States, provided there are no other special circumstances that need to be assisted. The rules on access to the labour marked must be further approximated to allow asylum seekers work since the moment their applications are admitted, this is important to promote integration and to avoid situations of social exclusion. Another issue to have in mind is that labour market in itself is quite different in each Member State. Upon a Common European Asylum System, these differences in the access to a job will persist. The possibility of accessing the long term residence statute for beneficiaries of international protection (possibility that has been already granted (theoretically at least) to immigrants (Directive 109/2005/EC)) is necessary to allow the refugees to go where they want to work and they find it, within the European Union. In adapting the Directive 109/2005/EC to include refugees and beneficiaries of other forms of protection, the 5 years of residence contemplated should be reduced, and the computed period should start to count since the moment where the asylum application is registered, and not when the protection statute is adopted. (9) Should the grounds for detention, in compliance with the jurisprudence of the European Court of Human Rights, be clarified and the related conditions and its length be more precisely regulated? Certainly it would be pertinent to regulate more precisely the grounds of detention. Detention should only operate when absolutely necessary (according to UNHCR s Executive Committee, only to EN 6

7 establish someone s identity, to ascertain elements of their asylum claim or to protect national security and public order), it is an exceptional act. In any case, when detention is necessary it should always be proportional in its manner and duration and be subjected to judicial and administrative review. Member States should not have to be reminded of the Human Rights Law they must comply with. European Union States too often make a political use of the Human Rights obligations, formally introducing it into almost every agreement and treaty they sign, not worrying further about them than mentioning them in the text of those treaties, which looks very nice, but there is an absence of political will to actually do what is necessary and adopt any measures which are pertinent in order to comply with Human Rights Law. On top of this, it seems absolutely important to harmonise the interpretation of Human Rights Law, according to the jurisprudence of the ECHR. Special criteria needs to be established when dealing with children and people in particularly vulnerable situations. Return rooms in airports need to be better regulated. In some occasion, Spanish Supreme Court, differing from the ECHR s opinion, has considered that the airport is not part of the national territory for this effect, in order to avoid the concept of arbitrary detention Granting of Protection (10) In what areas should further law approximation be pursued or standards raised regarding the criteria for granting protection Facilitating access of refugees to Europe and making it a reality in the practice of Member States by introducing a new legal figure to ensure this, introducing resettlement schemes or effectively taking into consideration that asylum seekers in a large amount of occasions will not comply with visa requirements. Also, it should be noted that the expulsion orders imposed to asylum seekers that enter irregularly should not constitute an obstacle to their application, as it happens today in practice, at least in Spain, where it is a cause of inadmission included in the Asylum Law. In regards to the Qualification Directive, its main purpose is to ensure that Member States apply common criteria for granting protection: to identify the people that genuinely are in need of international protection and to assure them a minimum common content of protection in all Member States. The non transposition of this Directive in the majority of Member States, make it quite difficult to value in what areas should the law be further approximated or the standards raised. Apparently, the Qualification Directive can be positively evaluated as it offers common definitions of key elements which must be followed by all Member States, such as well-founded fear, persecution or the lack of protection. Nonetheless, it should not be forgotten that common definitions require a uniform interpretation in every Member State. The creation of a European Organism in charged of supervising the common interpretation and the application of common guidelines would also be advisable. Finally, we would like to stress a probable failure of the Qualification Directive regarding protection where there is a lack of protection of a political party or a group that has effective control over an area. The inclusion of political parties and organisations as actors of protection (art. 7) can be contrary to the Geneva Convention. the rights and benefits attached to protection status(es)? In Spain, the law in force at the moment provides that during the first five years all beneficiaries of international protection (refugees and beneficiaries of subsidiary protection) have access to specific social and economic benefits. The only difference would be the documentation provided to each protection status. Asylum seekers are given a five year residence card whereas subsidiary protection beneficiaries will have only a one year residence card. In practice, after that first year most of the beneficiaries of subsidiary protection renew their residence under the immigration law, losing the specific benefits they are entitled to. A five years residence card provides more stability and promotes integration. We find no reason to avoid extending the five year residence to beneficiaries of international protection, furthermore bearing in mind that, in any case, the protection will cease as described in art. 16 of the Qualification Directive. The minimums standards of protection established in the Qualification Directive are too short. Once the protection is given, the residence card that would be issued would have a validity of only three years in the case of refugees and one year for beneficiaries of other kind of international protection. EN 7

8 Neither have we found justification in the distinction established in the 2 nd paragraph of art. 29 of the Qualification Directive. On top of that, it is not acceptable to limit the access to medical care once the protection has been granted, and consequently the authorisation to regularly reside in the European Union. The same could be said about art. 28, where the equivalence to social welfare recognised to nationals can also be limited for beneficiaries of subsidiary protection. (11) What models could be envisaged for the creation of a "uniform status"? Might one uniform status for refugees and another for beneficiaries of subsidiary protection be envisaged? How might they be designed? Following the existing directives, this single uniform status has already been sketched. Had the Directives been transposed, it would have been easier to evaluate and design the next steps. Further harmonisation should flee from lowest common standards. A single status along all the European Union would help to prevent asylum shopping as the content of the protection would be the same. The Spanish asylum system establishes a single procedure to apply for both asylum and subsidiary protection, although in practice, the protection given to each status is different. (12) Might a single uniform status for all persons eligible for international protection be envisaged? How might it be designed? As mentioned in our answer to question number 4, overcoming some obstacles, there could be a common procedure for the determination of either of the protection statues, for it is the same administrative organism that decides whether or not to grant the international protection, provided the application complies with either the requirements to grant asylum or with those to grant the subsidiary protection status. Once the international protection is granted, asylum or subsidiary protection, the status could be uniform, for the content of the protection is the same. The model contained in the Qualification Directive should offer the same content of international protection to both figures (actually, social and health assistance are limited for beneficiaries of subsidiary protection). Differences in the content of the protection provided or even in the validity of their residence cards only generate higher costs, reduce security, and obstacle integration of these people in the societies of European countries. Once protection is granted, we find no reason not to provide equal content for both statutes, and giving a high standard protection is essential for integration purposes. The only danger of a uniform status is that in the process of harmonisation, certain situations are left out as a consequence of a restrictive delimitation. In practice, in Spain there are more people provided with subsidiary protection status than with a refugee status, so providing a uniform status they would not be left in a more unstable situation. (13) Should further categories of non-removable persons be brought within the scope of Community legislation? Under what conditions? According to the Geneva Convention, the status can be revoked in certain cases, based on individual actions, not regarding categories of people. So I will assume that the question is meant for unreturnable people, which are not considered to comply with the requirements to be recognised as refugees or beneficiaries of subsidiary protection, but cannot be returned to their countries according to the principle of non refoulement. Clearly, it demands for the concept of subsidiary protection to be expanded in order to incorporate and shelter these realities. A common regulation that includes the definition of concepts of the categories would also be desirable. To ignore groups of people is not a good idea; as a consequence, a new category of people has been created, characterised by the impossibility of returning them to their countries (lack of identifying documentation, lack of repatriation agreement, lack of public budget to carry out returns or maybe due to the non traceability of the potential returnee) and the impossibility of regularising them according to the legislation of the Member States. They are doomed to marginalization, they work in the submerged economy, psychological problems, social services dependence (which is never enough), etc. This situation gets worse when an expulsion measure is taken and can never be enforced. In this stage, to the difficulties to regularise themselves according to immigration and asylum national laws of EN 8

9 the Member States we should add the obstacle of expulsion measure, which will impede the regularisation of that person in all of the Schengen area. Special attention must be put on stateless people. They suffer great administrative trouble, and in many cases they are invisibilised and ignored. Very few countries have legislation contemplating this category of persons. It is essential for it to be under the scope of the EU legislation. According to what has been exposed in the preceding paragraphs, subsidiary protection or even only a residence permit according to humanitarian reasons, should be granted to categories of nonremovable persons. Another point that has already been mentioned regarding the case of inadmitted or rejected asylum seekers is that according to art of the Reception Directive, they should be permitted to continue their stay in the Member State and working legally while they are appealing the unfavourable resolution until a final pronunciation has been made. It seems that this is not applied in many countries when it should have been in force by the 6 th February (14) Should an EU mechanism be established for the mutual recognition of national asylum decisions and the possibility of transfer of responsibility for protection? Under what conditions might it be a viable option? How might it operate? This would be completely necessary if a Common European Asylum System is pretended, to provide a fairer treatment to refugees and other beneficiaries of international protection in order to balance the situation of all long term residents that come from 3 rd States. It would permit refugees that have resided for more than 5 years in a Member State and that are still in need of international protection to obtain as well Long Term Statute allowing them mobility amongst European Union States. Anyhow, this must imply that the protection given in every State Member is the same and this protection must not be only minimums as the Qualification Directive contemplates. Before reaching the Long Term Statute (before the first 5 years), some mechanism should be established to apply to a transfer of responsibility for protection under certain circumstances, for example, family reunification, strong cultural links, a job offer in another Member State, etc Cross-cutting issues (15) How could the provisions obliging Member States to identify, take into account and respond to the needs of the most vulnerable asylum seekers be improved and become more tailored to their real needs? In what areas should standards be further developed? In the first place, there is a need to balance the standards and assistance provided in all the Member States. The system of social protection should not ignore the fate of people with inadmitted or refused applications, extending social protection to them to avoid leaving them in extreme vulnerable situations. It should be taken into account, that in order to comply with the provision of art Reception Directive, it would be interesting to develop aids for the situation it embraces. For the time being, a rejected asylum seeker which is appealing the unfavourable resolution has no protection at all and is exposed to an expulsion measure without waiting for the resolution of their appellation. It should also be noted that frequently people who have fled from persecutions suffered in their countries are not aware of the possibility of applying for asylum or that in their situation they have the right to receive international protection. (16) What measures should be implemented with a view to increasing national capacities to respond effectively to situations of vulnerability? Some ideas to respond to the needs of the most vulnerable asylum seekers could be the following: - Increase qualification and training in asylum, and also social abilities, skills in identification of needs, etc. of professionals working in this field. - Allocate adequate financial and human resources in asylum issues and needs. - Create multidisciplinary teams that should be placed in strategic locations (for example, airports or police offices). EN 9

10 - Exchange of information and better coordination between administrations, NGOs and different organisations. - Awareness raising amongst society to achieve an effective and efficient Common European Asylum System, as well as to respond adequately to vulnerable situations. - It would help to provide a common definition of what is understood by situations of vulnerability. - Create an emergency device and a performance protocol for emergency situations. (17) What further legal measures could be taken to further enhance the integration of asylum seekers and beneficiaries of international protection, including their integration into the labour market? The integration procedure requires an effort of the welcoming society as well as an effort of those who arrive. Integration requires labour and social opportunities in the country of residence as well as rapid and efficient mechanisms to facilitate family reunification, which is essential for the integration of any person. In Spain, there is a distinction for family reunification under the Immigration Law and the Asylum Law. It is necessary to shorten the delays in the asylum reunification procedure (immigration reunification establishes more requirements but the process is quicker). The Family Reunification Directive establishes a unified procedure for family reunification for immigrants, refugees and subsidiary protection beneficiaries. The Directive, not transposed yet in Spain, is more restrictive in certain points than the actual Spanish legislation. Positive measures should be implemented, for example an establishment of a legal quota to companies to contract at least 2% of their staff refugees or beneficiaries of international protection. Such measure exists in Spain for handicapped people regarding companies with more than 50 workers. Information provided to companies should be very much improved. A main obstacle to the labour market in Spain today is that society in general lacks basic knowledge about asylum seekers situations in their country. Entrepreneurs and human resources departments in companies fail to know that after six months, asylum seekers are provided with a yellow card that authorises them to work. Other than providing access to the labour market, measures must also be taken to allow real access to housing, health services, training, etc. Registering in the city census should be made easier (for example, it should never depend on the will of the owner of the house they rent). (18) In what further areas would harmonization be useful or necessary with a view to achieving a truly comprehensive approach towards the asylum process and its outcomes? Current disparities between Asylum Systems are the causes of many problems, such as illegal residence, onward movements. As it has been recognised, the Member States approved the goal of establishing the Common European Asylum System for Harmonisation should comprehend primarily what has already been foreseen, and once the transposition and evaluation of the Directives of the First Phase have been achieved, and the standards have been raised where necessary, it will be the moment to examine what other areas should be included in the harmonisation process. Asylum issues should be taken more seriously into consideration in every European Union policy, in order to make societies interested and aware in asylum and refugees issues. An outstanding obstacle for the Common European Asylum System to be a reality is the obsession of European Union countries to close their borders in order to fight against illegal immigration. As a result of mixed migration flows and the attitude of European Union States, asylum is affected when it should not be, for example, hindering the access to asylum procedures. In occasions, asylum seekers choose to stay in illegality rather than issue an asylum application. At this point, three observations need to be made: - Above all, protection of those in need of international protection must be preserved and enhanced, no matter how much harmonisation is required and finally done. - In the second place, a thorough effort of awareness raising is to be made at all levels of society and especially in the areas where the contact with asylum seekers is more relevant (hospitals and health centres, lawyers, judges, social workers, local administration workers and those who work at other instances of the Administration). Specific training is also to be provided to all these categories. EN 10

11 - Asylum seekers must receive a multidisciplinary attention, comprising juridical, social, psychological and labour assistance. 3. IMPLEMENTATION - ACCOMPANYING MEASURES (19) In what other areas could practical cooperation activities be usefully expanded and how could their impact be maximised? How could more stakeholders be usefully involved? How could innovation and good practice in the area of practical cooperation be diffused and mainstreamed? Practical cooperation would be usefully expanded in the following areas: - As a priority, at sea, to stop unnecessary deaths. - Setting of independent control mechanisms to ensure the compliance with all the guarantees and human rights. They could include the presence of the UNHCR. - Country of Origin Information (COI) must be shared between the states and with other stakeholders, so that everyone in the European Union uses the same source of COI in their work. - Setting of mechanism to improve information exchange and cooperation between Authorities and NGOs within all Member States. - Improve information delivery to asylum seekers in a language that they can understand (access to the procedure, legal and social assistance, protection, etc.). - Design and implementation of resettlement schedules to European Union. - Creation of common European Union guidelines in different areas. For example to indicate minimum qualifications for authorities involved in asylum process, other specialised formation curricula, and other staffing issues. Guidelines should also be directed to achieve the training and formation in asylum of professionals in the European Union in a very extensive approach, not only the ones directly specialised in the asylum procedure, that will include all social workers, judges, lawyers, police, health workers, etc. (20) In particular, how might practical cooperation help to develop common approaches to issues such as the concepts of gender- or child-specific persecution, the application of exclusion clauses or the prevention of fraud? To start with, sharing best practices will prevent low standards of protection, promoting high quality resolutions. In the second place, it is important to make common definitions and common interpretations of genderspecific persecution, child-specific persecution, application of exclusion clauses and fraud prevention. It would be helpful to elaborate common European Union guidelines to assist decision-makers in certain types of complex asylum cases, providing decision makers the appropriate training and specific formation. (21) What options could be envisaged to structurally support a wide range of practical cooperation activities and ensure their sustainability? Would the creation of a European support office be a valid option? If so, what tasks could be assigned to it? A European support office would be desirable to ensure sustainability of practical cooperation activities. Among the tasks that could be assigned to this office we can mention: the elaboration of reports and research, about good practices in the Member States or non fulfilment of their duties and obligations, about Country of Origin Information, the elaboration of common guidelines in different topics related to asylum issues, actions directed to raise awareness in all levels of societies of member states. Also, this Office could have other tasks assigned, as have been mentioned throughout the answers to this paper when the creation of an Organism was suggested to supervise and control the application of the EU asylum law and the common interpretation made in the Member States. EN 11

12 (22) What would be the most appropriate operational and institutional design for such an office to successfully carry out its tasks? It is necessary that the decisions and reports of this office are provided with binding power for the Member States to comply with and be provided with some sort of enforcement possibilities when states do not comply with their obligations. According to the functions of control of the application of the common laws and supervision of the harmonisation in the interpretations, the office could be dependent of the European Union Court of Justice rather than dependent of the Commission. 4. SOLIDARITY AND BURDEN SHARING 4.1. Responsibility sharing (23) Should the Dublin system be complemented by measures enhancing a fair burdensharing? In the present time, responsible burden-sharing is completely out of the scope of the Dublin system. This system should be substantially reformed in order to take burden-sharing into consideration. In practice, Dublin system is a mechanism to deter people, instead of determining the responsible State from a sensitive and humane point of view. It would be more productive to focus in avoiding free interpretation of Member States. One measure that can be observed following this objective is to establish resettlement schemes in the European Union countries. (24) What other mechanisms could be devised to provide for a more equitable distribution of asylum seekers and/or beneficiaries of international protection between Member States? Establishing criteria to follow which is according to reality and to logic in order to take a more sensitive approach to the spirit of the Regulation. Not being so would imply not focusing enough on the protection of those who are in need of it, obligation of all Member States under international law. Taking into account the wealth of every individual State, financial support could be given when necessary in cases where the asylum pressure is higher compared to the majority of the European Union states Financial solidarity (25) How might the ERF's effectiveness, complementarity with national resources and its multiplier effect be enhanced? Would the creation of information-sharing mechanisms such as those mentioned above be an appropriate means? What other means could be envisaged? Communication between ERF and the NGOs that finally manage its resources implementing ERF s programmes needs to be improved. Other mechanisms of information exchange would be advisable, for example with Member States authorities. ERF budget provisions need to be oriented to alleviate the big differences existing between Member States regarding the resources they count with. (26) Are there any specific financing needs which are not adequately addressed by the existing funds? ERF should intensify the financing of joint projects between partners of different countries aimed to share the information they handle. For example, to finance the elaboration of a common data base of county of origin information. As a favourable surprise, for the first time, this year psychological attention to refugees and asylum seekers has been introduced as a priority. EN 12