Mr. T.

Billström
Minister for Migration and Asylum Policy
President of the JHA Council

Brussels, 25 November 2009

Dear Mr. Billström,

Re: Council Discussion on Commission proposals recasting the Qualification Directive 2004/83/EC and
the Asylum Procedures Directive 2005/85/EC/

At their meeting on 30 November and 1 December, Justice and Home Affairs Ministers will have a first
discussion on the recast of two important instruments of the EU’s asylum policy: the EC Directive on minimum
standards for the qualification for international protection and the EC Directive on minimum standards for asylum
procedures in the EU Member States. With the proposals recasting the Reception Conditions Directive and the
Dublin and EURODAC Regulations already under negotiation in the Council and the European Parliament, all
main legislative instruments constituting the EU asylum acquis are now under revision.

ECRE, as a network of 69 refugee assisting organisations in 30 countries in Europe, has been closely following
the EU’s harmonisation process in the field of asylum and has conducted a number of in-depth research studies
on the implementation of EU asylum legislation and its impact on the protection of refugees and the treatment of
asylum seekers in EU Member States. Such research has shown that considerable scope remains for further
harmonisation in order to address the protection gaps that exist in and result from EU legislation.

This is certainly the case with regard to eligibility criteria for international protection that needs to be aligned with
international refugee law and standards and the content of refugee and subsidiary protection status. ECRE’s
research on the implementation of the Qualification Directive has pointed to a number of protection gaps, in
particular relating to the internal protection alternative, membership of a particular social group, the definition of
subsidiary protection and exclusion clauses.

The standards laid down in the Asylum Procedures Directive are equally problematic. This instrument contains a
number of dangerously low standards that risk undermining asylum seekers’ access to a fair asylum procedure
and may prevent persons in need of international protection from finding such protection. The extensive
possibilities for Member States to apply accelerated procedures with less procedural guarantees and without a
substantive examination of the asylum application, the fairly low guarantees with regard to legal assistance and
the possibility for Member States to even omit a personal interview in certain cases are only a few examples of
where the Directive falls short of the standards conducive to a full and fair examination of an asylum claim.

The pressing need for the second phase of harmonisation is also illustrated by the huge disparities that still exist
between EU Member States with regard to protection standards and recognition rates. In addition, national
courts increasingly suspend the transfer of asylum seekers to EU Member States under the Dublin Regulation
on the basis that such transfers could result in their basic human rights being violated, while also the European
Court of Human Rights regularly imposes interim measures to prevent Dublin transfers between EU Member
States.

Working together to protect and respect refugees

146 Rue Royale, B-1000 Brussels
Tel: +32 (0)2 234 38 00
Fax: +32 (0)2 514 59 22
ecre@ecre.org
www.ecre.org
ECRE is an international non-for-profit organisation (AISBL)
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However, ECRE is worried that the need for further legislative harmonisation is sometimes put into question.
Instead, the use of practical cooperation between EU Member States is often put forward as an alternative to
further legislative initiatives. While certainly acknowledging the need for practical cooperation as a
complementary tool in the development of a Common European Asylum System (CEAS), we strongly believe
that it cannot compensate for the flaws in the EU asylum acquis and the lack of sufficiently high standards of
protection.

ECRE broadly welcomed the first asylum package presented by the European Commission in December as a
step in the right direction. Without addressing all problematic aspects in the existing Directives, ECRE also
believes that the latest proposals recasting the Qualification and Asylum Procedures Directives include
important and necessary improvements. An example is the proposal to grant the same rights to refugees and
beneficiaries of subsidiary protection thus providing for a uniform protection status. This would avoid the creation
of different categories of protection holders where there is little objective justification for such differentiation.
Moreover, it would also better reflect the current situation in the Member States, a majority of which already
grant the same rights to refugees and beneficiaries of international protection. As far as the recast proposal on
the Asylum Procedures Directive is concerned ECRE welcomes its useful improvements with regard to a more
restricted use of accelerated procedures, a general right to a personal interview and enhanced provisions on
legal assistance and the right to an effective remedy.

As the Council will have a first discussion at Ministerial level on the Commission’s recast proposals on the
Qualification and Asylum Procedures Directives, ECRE would like to remind Ministers of their moral and legal
obligations to uphold Europe’s long standing tradition of providing protection to those fleeing persecution and
generalised violence.

As stated in the European Pact on Immigration and Asylum, the time has come to “take new initiatives to
complete the establishment of a Common European Asylum System” and to “offer a higher degree of
protection” in the EU. Moreover, under the Lisbon Treaty, the EU must develop a common policy on asylum that
is in accordance with the Geneva Refugee Convention and other relevant treaties while ensuring compliance
with the EU Charter on Fundamental rights, including the right to asylum as laid down in Article 18.

ECRE therefore urges the JHA Ministers to commit to work together with the European Parliament and the
Commission in a constructive way to establish a solid legal framework for the CEAS that is based on high
standards, is in compliance with international refugee and human rights law and standards and that can serve
as a model of protection for the rest of the world.

We hope you will take these concerns into consideration during your discussions in Brussels.

Yours sincerely,

Bjarte Vandvik
Secretary-General