Committee of Ministers

Comité des Ministres

AD HOC COMMITTEE OF EXPERTS ON THE LEGAL ASPECTS OF TERRITORIAL ASYLUM, REFUGEES

AND STATELESS PERSONS

(CAHAR)

46th Meeting

Strasbourg, 14-16 October 1998

List of items discussed and decisions taken

(Abridged report)

1. The Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) held its 46th meeting on 14-16 October 1998 in Strasbourg. The list of participants and the agenda appear in Appendices I and II, respectively.

2. The CAHAR adopted a draft Recommendation on the training of officials who first come into contact with asylum-seekers, in particular at border points and its explanatory memorandum, for examination and adoption by the Committee of Ministers. The draft Recommendation and its explanatory memorandum appear in Appendix III.

3.    The Committee revised and adopted a second opinion for the Committee of Ministers concerning a reply to the question by Erik JURGENS, member of the Parliamentary Assembly on the right of asylum for citizens of the European Union, following a request to do so by the Committee of Ministers. The adopted text appears in Appendix IV.

4.    The CAHAR held a discussion on the return of rejected asylum-seekers on the basis of a preliminary document, prepared by a Working Party. It decided to continue the exercise through the same working party which will report back to the forthcoming plenary session.

5.    The Committee, on the basis of an outline document presented by the Finnish delegation, held an exchange of views on the issue of family reunion for refugees and for other persons in need of protection. It asked the Secretariat to send a questionnaire to national delegations, to make a compilation of relevant existing international documents on this issue and, with the involvement of an external consultant, to prepare a study on the related case-law of the organs of the European Convention on Human Rights concerning Article 8 of the Convention. Upon the completion of these exercises, a meeting of a new working party will be convened which will evaluate the available information and make proposals for the next plenary meeting.

6.    The CAHAR held a discussion on the temporary protection of persons forced to flee their country, within the scope of Recommendation 1348 (1997) of the Parliamentary Assembly and the reply by the Committee of Ministers to the Parliamentary Assembly concerning the same Recommendation. It decided to establish a working party to make proposals for the next plenary meeting for the scope of a possible substantive response to the Committee of Ministers.

7.    The CAHAR held a tour de table on developments in domestic law and policies of member States concerning asylum, refugees, stateless persons and persons under temporary protection. Special attention was paid to the conditions of refugees and displaced persons from Bosnia and Herzegovina and from the Kosovo province of the Federal Republic of Yugoslavia.

8. The Committee reviewed recent activities of the Council of Europe, including the Committee of Ministers, the Parliamentary Assembly and the European Court of Human Rights, and other international developments relevant to the work of the CAHAR.

9. The Committee discussed its future work and decided to take as immediate priorities:

- the return of rejected asylum-seekers,

- the right to family reunion for refugees and other persons in need of protection, and

- temporary protection for persons forced to flee their country.

For longer-term forthcoming priority areas, the Committee considered a proposal for the elaboration of a protection clause for bilateral readmission agreements. The Committee also requested the Bureau to outline a comprehensive proposal for future work, which should focus on such pertinent priority areas of refugee protection which have not yet, or not yet fully been addressed by earlier intergovernmental provisions of the Council of Europe, without prejudice to already existing standards adopted by certain member States or other fora.

10. The Committee adopted this abridged report, the detailed report on the 45th meeting and decided to hold its 47th meeting on 24-26 March 1999, in Strasbourg.

APPENDIX I

LISTE DES PARTICIPANTS/LIST OF PARTICIPANTS

AUTRICHE/AUSTRIA

Mr Wolfgang TAUCHER, Head of the Federal Asylum Office

BELGIQUE/BELGIUM

M. Charles DEHEM, Conseiller adjoint, Office des Etrangers, Ministère de l'Intérieur

BULGARIE/BULGARIA

Mme Svoboda GUENTCHEVA, Expert "Relations internationales", Bureau national pour l'asile territorial et les réfugiés auprès du Conseil des Ministres

CROATIE/CROATIA

Ms. Bozena KATANEC, Head of Department for Migration and Foreigners, Ministry of the Interior

CHYPRE/CYPRUS

REPUBLIQUE TCHEQUE/CZECH REPUBLIC

Ms. Andrea BARSOVA (Vice-Chairperson), Legal Adviser, Ministry of the Interior, Department for Refugees and Integration of Foreigners

DANEMARK/DENMARK

Mr Lars Dahl GULMANN, Head of Section, Juridisk kontor, Danish Immigration Section

Mr. Kim HVAM, Head of Section, Directorate of Immigration

ESTONIE/ESTONIA

FINLANDE/FINLAND

Ms. Annikki VANAMO-ALHO, Senior Counsellor, Immigration Department of the Ministry of the Interior

FRANCE

M. Pierre BRETHES, Direction des Français à l’Etranger et des Etrangers en France, Sous-Direction des Réfugiés et Apatrides, Ministère des Affaires Etrangères

ALLEMAGNE/GERMANY

Mr. Karsten KLOTH, Counsellor, Federal Ministry of the Interior

Ms. Bettina KAESTNER, Staatsanwältin, Bundesministerium der Justiz

GRÈCE/GREECE

Mr. Vassilios PATRONAS (Chairman), Special Legal Adviser, Head of the Legal Department, Ministry of Foreign Affairs

HONGRIE/HUNGARY

Mr. Istvan DOBÓ, Director General, Office of Refugee and Migration Affairs

ISLANDE/ICELAND

Mr Kolbeinn ARNASON, Head of Section, Ministry of Justice, Arnarhvoll

ITALIE/ITALY

LETTONIE/LATVIA

Mr. Oskars VAIKULIS, Deputy Director, Department of Citizenship and Migration Affairs, Ministry of the Interior

LITUANIE/LITHUANIA

Mr. Vaidotas VERBA, Head of the Consular Information and Analysis Division, Ministry of Foreign Affairs

MALTE/MALTA

Mr. Anthony BARBARA, Assistant Attorney General, Office of the Attorney General, The Palace

MOLDOVA

Mr. Iuri CERBARI, Chef adjoint du Département Consulaire, Ministère des Affaires Etrangères

PAYS-BAS/NETHERLANDS

Mr. P. WAGENMAKER, Senior Policy Officer, Immigration Policy Directorate, Ministry of Justice, Dept; DVB

NORVEGE/NORWAY

Ms. Nina OFTEDAHL, Senior Executive Officer, Ministry of Justice and Police, Immigration Department

POLOGNE/POLAND

Ms. Magdalena KAKLEWSKA, Specialist, Migration Division, Department for Migration and Refugee Affairs

PORTUGAL

M. Luis SILVEIRA, Procureur Général Adjoint, Procuradoria-Géral de Républica, Palácio Palmela

ROUMANIE/ROMANIA

Mlle Mihaela BABUSKA, Directeur, Direction des Droits de l’Homme et Conseil de l’Europe, Ministère des Affaires Etrangères

FEDERATION DE RUSSIE/RUSSIAN FEDERATION

Mr. Konstantin SHAKHMURADOV, Head of Division, Legal Department, Ministry of Foreign Affairs

REPUBLIQUE SLOVAQUE/SLOVAK REPUBLIC

Mr. Igor PACOLÁK, Head of Methodic and Migration Unit, Ministry of Foreign Affairs, Consular Department

ESPAGNE/SPAIN

M. Fermin PRIETO CASTRO, Ambassadeur, Ministère des Affaires Etrangères

SUEDE/SWEDEN

Mr. Christer NORLING, Head of Section, Division for Migration Policy, Ministry of Foreign Affairs

SUISSE/SWITZERLAND

Mme A.G. NIELSEN, Chef des affaires internationales, Office fédéral des réfugiés, Département fédéral de justice et police

EX-REPUBLIQUE YOUGSLAVE DE MACEDOINE / FORMER YUGOSLAV REPUBLIC OF MACEDONIA

Mr. Jovan CICAKOVSKI, Head of Department for Foreigners, Ministry of the Interior of the Republic of Macedonia

TURQUIE/TURKEY

Mr. Elçi Murat OGUZ, Deputy Director General for Consular Affairs, Ministry of Foreign Affairs, Konsolosluk isleri Genel Müdür Yardimcisi, Disisleri Bakanligi (Ek Bina)

UKRAINE

Mr. Sergii BRITCHENKO, Deputy Director, Citizenship Department, Administration of the President of the Ukraine

M. Ihor MYSYK, Représentant Permanent Adjoint de l'Ukraine auprès du Conseil de l'Europe

ROYAUME-UNI/UNITED KINGDOM

Ms. Hilary TARRANT, Deputy Head, Asylum Policy Unit, Asylum and Appeals Policy Directorate, Home Office

EUROPEAN COMMISSION/COMMISSION EUROPEENNE

M. Alessandro IANNIELLO, Direction Générale IA/A/5, Relations avec le Conseil de l’Europe

OBSERVATEURS/OBSERVERS

AUSTRALIE/AUSTRALIA

Ms. Robyn BICKET, Counsellor (Immigration), Australian Permanent Mission to the United Nations

CANADA

Ms. Audrey S. TOMICK, Senior Advisor, Department of Foreign Affairs, Human Rights, Humanitarian Affairs, International Women’s Equality Division (AGH)

SAINT-SIEGE/HOLY SEE

BUDAPEST GROUP

Mr. Jonas WIDGREN, Director, ICMPD

HCNUR/UNHCR

Mr. Antonio FORTIN, Chief of the Standards and Legal Advice Section, UNHCR

SECRÉTARIAT

M. Alexey KOZHEMYAKOV, Chef de la Division du Droit Public et International, Direction des Affaires Juridiques

M. Géza TESSÉNYI, Division du Droit Public et International, Direction des Affaires Juridiques

Mme Libby DA CUNHA, Division du Droit Public et International, Direction des Affaires Juridiques

M. Dominik MAZUR, Stagiaire

Mme Noëlle QUENIVET, Stagiaire

INTERPRETERS/INTERPRETES

Mme Amanda BEDDOWS

M. Roland HERRMANN

M. Jean-Louis WÜNSCH

ETATS NON REPRÉSENTÉS/NOT REPRESENTED STATES (APOLOGISED/EXCUSÉS)

ALBANIE/ALBANIA

ANDORRE/ANDORRA

BOSNIE ET HERZEGOVINE/BOSNIA AND HERZEGOVINA

IRLANDE/IRELAND

JAPON/JAPAN

LIECHTENSTEIN

LUXEMBOURG

SAINT-MARIN/SAN MARINO

SLOVENIE/SLOVENIA

ETATS UNIS D’AMERIQUE/UNITED STATES OF AMERICA

ORGANISATIONS NON REPRÉSENTÉES/NOT REPRESENTED ORGANIZATIONS

(APOLOGISED/EXCUSÉES)

OSCE

CDMG

APPENDIX II

DRAFT AGENDA

1. Opening of the meeting

2. Adoption of the Agenda

3. Discussion on the training of officials receiving asylum-seekers at border points

4.    Adoption of a second opinion on restricting European Union citizens’ access to asylum

5. Discussion on the return of rejected asylum-seekers and other persons not in need of international protection

6. Preliminary discussion on family reunion for refugees and persons under temporary protection

7. Discussion on temporary protection

8. Developments in domestic law of member States concerning asylum, refugees, stateless persons and persons under temporary protection (tour de table)

9. Decisions of the Committee of Ministers and other activities within the Council of Europe which are of interest to the CAHAR

10. International developments in the field of competence of the CAHAR

11. Future work

12. Other business

13. Adoption of reports.

APPENDIX III

DRAFT RECOMMENDATION ON THE TRAINING OF OFFICIALS

WHO FIRST COME INTO CONTACT WITH ASYLUM-SEEKERS, IN PARTICULAR AT BORDER POINTS

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Recalling the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, the 1951 Convention and its 1967 Protocol Relating to the Status of Refugees as well as other provisions relevant to refugees and asylum seekers, adopted by the Council of Europe and other competent international fora;

Having regard to Resolution 1309 (1996) of the Parliamentary Assembly on the training of officials receiving asylum-seekers at border points;

Bearing in mind that, in order to fulfil their important tasks in an effective manner and to prevent refoulement and the turning away of the asylum-seeker at the border as well as to ensure unimpeded access to the asylum procedure by those seeking asylum, officials who first come into contact with asylum-seekers, in particular those fulfilling their duties at border points, need appropriate and adequate, initial and in-service training on how to recognise requests for protection and handle specific situations in connection with asylum-seekers;

Stressing that the responsibility for providing appropriate and adequate training and the selection of training methods for officials who first come into contact with asylum-seekers lays primarily with member States and that international co-operation, both between States and between States and competent international organisations, is of high importance, with particular relevance to those member States which consider themselves in need of a special international assistance for such training;

Without prejudice to the guarantees enshrined in international and applicable regional provisions concerning training and instruction for officials who first come into contact with asylum seekers;

Noting that in member States, different practices and competences exist for the reception and processing of asylum requests;

Considering that in the respective practices of member States, there are different categories of officials who first come into contact with asylum-seekers;

Recognising, therefore, the importance of member States' agreeing to common principles relating to certain asylum issues which can guide their respective practices,

Recommends to member States

1. For those of such officials who are required to refer these asylum-seekers to the competent asylum authority, their training should lead to the acquisition of:

1.1. basic knowledge of the provisions of national legislation related to the protection of asylum-seekers and refugees, including the relevant administrative issues and knowledge of internal instructions, wherever applicable, on how to deal with asylum-seekers;

1.2. basic knowledge of the provisions of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees and general principles of refugee protection as provided by international law, in particular the prohibition of refoulement and the situation of refugees staying unlawfully in the country of refuge;

1.3. basic knowledge of the provisions relating to the prohibition of torture or inhuman or degrading treatment or punishment as enshrined in the European Convention on Human Rights;

1.4. basic knowledge concerning limitations under national and international law to the use of detention;

1.5. skills to detect and understand asylum requests even in cases where asylum-seekers are not in a position clearly to communicate their intention to seek asylum, as well as basic communication skills concerning how to address asylum-seekers, including those with special needs;

1.6. the skill of the correct choice and use of an interpreter when necessary.

2. For those officials whose responsibility is to receive and also to process asylum applications and also whose responsibility might be to take a decision, bearing in mind that a decision on an asylum request shall be taken only by a central authority, their training should lead to the acquisition of:

2.1. detailed and thorough knowledge of all the provisions and skills listed under 1.1 to 1.6;

2.2. interviewing techniques, including skills of interpersonal and intercultural communication;

2.3. knowledge concerning the human rights situation in the countries of origin of asylum seekers and in other relevant third countries;

2.4. the skill of establishing the identity of asylum-seekers;

2.5. knowledge of the application of the "safe third country" concept by some member States.

3. Training on the issues enumerated under paragraphs 1 and 2 above should be included in initial and in-service training programmes for the officials concerned. Those responsible within the national administration for such training for officials should be familiarised with available materials prepared, and participate in special programmes when they are made available, by competent international governmental or non-governmental agencies and by national agencies in the framework of bilateral or multilateral co-operation.

EXPLANATORY MEMORANDUM

Introduction

1. This Recommendation on the training of officials who first come into contact with asylum-seekers, in particular at border points, originated in a report (Document 7683) of the Parliamentary Assembly which led to the adoption of Recommendation 1309 (1996) of the Parliamentary Assembly on the training of officials receiving asylum-seekers at border points.

2. The Committee of Ministers gave ad hoc terms of reference to the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) to submit detailed proposals in the light of the topics mentioned in paragraph 7.ii of the Recommendation of the Assembly.

3. The experts studied the Recommendation of the Assembly on the basis of the ad hoc terms of reference as defined by the Committee of Ministers and recognised the importance of member States' agreeing common principles relating to training for officials who first come into contact with asylum-seekers, in particular at border points.

4. The draft finalised by the ad hoc committee was forwarded to the Committee of Ministers and was adopted by it on... at the ...meeting of the Ministers' Deputies.

General considerations

5. As paragraph 6 of Recommendation R (94) 5 of the Committee of Ministers on Guidelines to Inspire Practices of Member States Concerning the Arrival of Asylum-seekers at European Airports points out, as drafted by the CAHAR and, consecutively, adopted by the Committee of Ministers, "authorities entrusted with the receipt of applications at the border shall receive training adapted to the specific situation of persons seeking asylum. Such authorities should, moreover, have precise instructions on the procedures to be followed".

6. Parliamentary Assembly Recommendation 1309 (1996) addresses a wide range of issues: this Recommendation focuses only on the provisions covered by the ad hoc terms of reference given by the Committee of Ministers.

7. The aim of this Recommendation is to prevent refoulement and the turning away of the asylum-seeker at the border as well as to ensure unimpeded access to the asylum procedure in member States by those seeking asylum, by means of appropriate and adequate, initial and in-service training of officials who first come into contact with asylum-seekers, in particular at border points.

Comments on the principles set out in the Recommendation

8. The preamble recalls the 1950 European Convention on Human Rights,the 1951 Refugee Convention, its 1967 Protocol and other provisions relevant to refugees and asylum-seekers adopted by the Council of Europe, such as Recommendations of the Committee of Ministers, and by other competent international fora, such as Conclusions of the Executive Committee of the United Nations High Commissioner for Refugees (EXCOM).

9. Guarantees enshrined in international provisions concerning training and instruction for officials who first come into contact with asylum-seekers are incorporated, among others, in Conclusion No. 8 (XXVII) of the EXCOM on the determination of refugee status. Guarantees enshrined in applicable regional provisions concerning training and instruction for officials who first come into contact with asylum-seekers are incorporated, among others, in Committee of Ministers' Recommendation R (81) 16 on the harmonisation of national procedures relating to asylum, as drafted by the CAHAR, as well as, wherever applicable, the 1995 Resolution of the Council of the European Union on minimum guarantees for asylum procedures.

10. The preamble stresses that, although the responsibility for such training and the selection of training methods lies primarily with member States, international co-operation, both between States and between States and competent international organisations is of high importance, with particular relevance to those member States which consider themselves in need of special international assistance for such training. In this context, paragraph 54 of the Programme of Action of the Regional Conference to address the problems of refugees, displaced persons, other forms of involuntary displacement and returnees in the countries of the Commonwealth of Independent States and relevant neighbouring States recalls that whereas "...[s]taff at border crossing points need to receive up-to-date information...It is important that they be trained to treat asylum-seekers without discrimination and to refer them to the competent refugee authorities".

11. The preamble also notes the different practices, competences and categories of officials which exist in member States for dealing with the reception and processing of asylum requests. It is also recognised that these different categories of officials need different levels of initial and in-service training. This recognition establishes the structure of the operative part of the recommendation.

12. The recommendation that officials should receive training on how to recognise requests for protection and handle specific situations in connection with asylum-seekers deals with two groups of officials who first come into contact with asylum-seekers: first, those whose responsibility is only to refer asylum-seekers to the competent asylum authority and, secondly, those whose responsibility is to receive and to process asylum applications and also whose responsibility might be to take a decision. In this latter case, one should bear in mind paragraph 2 of Recommendation R (81) 16 of the Committee of Ministers on the harmonisation of national procedures relating to asylum that a decision on an asylum request shall be taken only by a central authority.

13. Training for the first group of officials can be limited to basic knowledge and certain skills which facilitate the identification of an asylum request and the referring of an asylum-seeker to the competent asylum authority. These basic knowledge and skills should be sufficient to avoid turning away the asylum-seeker at the border, contrary to law, including international obligations of the State. In contrast with officials responsible for interviewing asylum-seekers or determination of refugee claims, other officials, particularly at the border, (eg. border guards, customs officers, in certain cases policemen or army officers) cannot be required to have detailed legal knowledge of national and international provisions of refugee law.

14. In sub-paragraph 1.1 of the Recommendation, "relevant administrative issues" may include the distribution of competences among various bodies, the authorities in charge of evaluating asylum claims on their merits, procedures referring asylum-seekers to competent authorities and, wherever applicable, to reception centres. From a practical point of view, the knowledge of internal instructions is an essential element of proper treatment of asylum-seekers by officials who first come into contact with them.

15. In sub-paragraph 1.2 of the Recommendation, the prohibition of refoulement and the situation of refugees staying unlawfully in the country of refuge are applied in the meaning of Articles 33 and 31, respectively, of the 1951 Refugee Convention.

16. Sub-paragraph 1.3 of the Recommendation refers to the provisions relating to Article 3 of the European Convention on Human Rights. These provisions shall be interpreted and applied in the light of the case-law by the organs of that Convention.

17. In sub-paragraph 1.4 of the Recommendation, limitations under international law on the use of detention are applicable in particular under Article 5 of the European Convention on Human Rights and its related case-law. Other international provisions are to be considered such as, EXCOM conclusions, in particular No. 44 (XXXVII) on the detention of refugees and asylum-seekers.

18. In sub-paragraph 1.5 of the Recommendation, persons who are not in a position clearly to communicate their intention of seeking asylum may include, as the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status points out (para. 198), persons who, having learned to fear the authorities in their own countries, may be afraid to speak freely and give a full and accurate account of their cases. Asylum-seekers with special needs mean, for example, women from cultures where they would not address a male official, unaccompanied minors and mentally handicapped persons. Such persons might also fall in the previous category. An understanding by the official of the particular situation of the applicant and of the human factors involved are also important (para 222. of the UNHCR Handbook). To this end, training on basic communication skills such as attitude towards the asylum-seekers, i.e. creating a climate of confidence and refraining from hostile and uncooperative behaviour, as well as awareness of cultural differences (race, beliefs, political and social values, etc.) is required.

19. Sub-paragraph 1.6 of the Recommendation calls for the official to be able to use the services of an interpreter, if she or he could not otherwise understand the applicant, and when the services of an interpreter would be essential to decide whether or not the person is an asylum applicant to be referred to the competent asylum authority.

20. Paragraph 2. of the Recommendation lists the knowledge and skills necessary for the interviewer and the official involved in the determination of asylum claims when such an officer first comes into contact with asylum-seekers. The UNHCR Handbook contains detailed instructions for the training of such officers.

21. The official's knowledge of the application of the "safe third country" concept by some member States, as featured in sub-paragraph 2.5 of the Recommendation, is an important factor when initial decisions are to be taken about the admissibility of an asylum-seeker to the national refugee determination procedure. The "safe third country" concept is understood here in the meaning of the definition and conditions determined by Committee of Ministers' Recommendation R (97) 22 containing guidelines on the application of the safe third country concept, drafted by the CAHAR.

22. In paragraph 3, the Recommendation calls for initial and in-servicetraining for officials and encourages bilateral and multilateral international governmental or non-governmental co-operation in such training activities, in particular to the benefit of such member States whose asylum procedures are in a developing stage and consider themselves in need of such co-operation.

APPENDIX IV

Second Opinion for the Committee of Ministers concerning a reply to the question by Erik Jurgens, member of the Parliamentary Assembly on the right of asylum for citizens of the European Union

After seeking the opinion of the CAHAR, the Committee of Ministers is now in a position to give a final reply to the question of the legal implications of the decision taken by the European Council Meeting in Amsterdam concerning the European Union citizens’ access to asylum, having regard to the relevant European and international conventions, in particular the 1951 Geneva Convention relating to the status of refugees.

Having regard to the relevant European and international conventions, in particular the 1951 Convention relating to the status of refugees, the interpretation of international treaty obligations in the field of refugee protection, established outside the Council of Europe, falls explicitly to the appropriate judicial bodies.

However, it should be noted that the Preamble of the Protocol to the Amsterdam Treaty on asylum for nationals of Member States of the European Union states that it respects the finality and the objectives of the 1951 Geneva Convention relating to the status of refugees.

Furthermore, it should also be noted that the said Preamble states that, pursuant to the provisions of Art. F(2) of the Treaty on European Union, the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms.