1. The Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) held its 47th meeting on 24-26 March 1999 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 return of rejected asylum seekers and its explanatory memorandum, for the examination and adoption by the Committee of Ministers. The draft Recommendation and the explanatory memorandum appear in Appendix III.

3.    The Committee adopted an opinion for the Committee of Ministers concerning Parliamentary Assembly Recommendation 1348 (1997) on temporary protection of persons forced to flee their country. The adopted text appears in Appendix IV.

4.    The Committee held a discussion on family reunion for refugees and for other persons in need of protection, based on an expert study on the European Convention on Human Rights and the right of refugees and other persons to family reunion, on a compilation of national responses received to a questionnaire and on a discussion document prepared by the working party. The CAHAR decided to entrust the working party on family reunion to continue its work which should aim at accommodating all main positions of member States on the subject and examine possibilities to prepare a text which would meet a consensus.

5. The Committee held a preliminary discussion on the situation of refugee women in Europe on the basis of Parliamentary Assembly Recommendation 1374 (1998) and a decision of the Committee of Ministers. The CAHAR decided to send a questionnaire on this subject to member States and discuss the issue during its next meeting, having by then received contributions from three other committees of the Council of Europe (CDEG, CDMG and ECRI).

6. A compilation of responses to a questionnaire was distributed on developments on domestic law and policies of member States concerning asylum, refugees, stateless persons and persons under temporary protection as well as an extended and updated version of the document entitled "Summary descriptions of asylum procedures in selected member States of the Council of Europe".

7.    The CAHAR was informed about recent activities of the CDMG by its representative and about international developments relevant to the work of the CAHAR by respective representatives of countries currently holding the presidency of these fora and by the representative of the UNHCR.

8.    The Committee discussed its future work and set up three informal review groups under the co-ordination of members of the Bureau to present, for the next meeting, lists of priorities in different areas within the field of competence of the committee as well as some additional working methods.

9.    The CAHAR discussed the participation of some of its members at a new group of the CDMG on managing migration in the wider Europe and the organisation of its 1999 colloquy on "legal protection of persons in case of mass influx".

10. The Committee re-elected for another one-year term its Chairman (Mr V. Patronas, Greece), Vice-chairman (Ms. A. Barsova, Czech Republic) and elected a new member of the Bureau (Mr I. Rogachev, Russian Federation).

11. The Committee adopted the detailed report on its previous (46^th) meeting, the date of the next (48^th) meeting (13-15 October 1999) and also adopted the present abridged report.

Ms Anila PREMTI, Specialist, Legal and Treaties Department, Ministry of Foreign Affairs, TIRANA

Mr Jürgen SPRINGER, Ministry of Interior, WIEN

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

M. Boris TCHECHIRKOV, Chef du Département "Relations Internationales" du Bureau National pour l’asile territorial et les réfugiés auprès du Conseil des Ministres, SOFIA

Mrs. Bozena KATANEC, Chef du Département pour les migrations et les étrangers auprès du Ministère des Affaires Intérieures, ZAGREB

M. Dario DUDAS, Inspecteur du Département pour les migrations et les étrangers auprès du Ministère des Affaires Intérieures, ZAGREB

Mr Michael RAFTOPOULOS, Counsel of the Republic A’, NICOSIA

Ms. Andrea BARSOVA, Counsellor, Office of Government, Human Rights Department, PRAHA

Mr KOFOD Jens, Deputy Head of Division, Juridisk kontor, Danish Immigration Section, COPENHAGEN

Mr Carl Eric LAANTEE REINTAMM, Attaché, Consular Department, Ministry of Foreign Affairs, TALLINN

Ms. Arja KEKKONEN, Senior Adviser, Ministry of the Interior, Immigration Department, HELSINKI

M. Pierre BRETHES, Adjoint au Sous-Directeur des Réfugiés et Apatrides, Direction des Français à l’Etranger et des Etrangers en France, Représentation Permanente de la France auprès du Conseil de l’Europe, STRASBOURG

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

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

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

Mrs Margrét HAUKSDÓTTIR, Head of Section, Ministry of Justice, REYKJAVIK

M. Giovanni KOJANEC, Jurisconsulte, Ministère des Affaires Etrangères, ROME

Monsieur Horst SCHÄDLER, Directeur de la Police des Etrangers, VADUZ

Mr. Vaidotas VERBA, Head of Division, Ministry of Foreign Affairs, VILNIUS

Mr. Anthony BARBARA, Assistant Attorney General, Office of the Attorney General, VALLETTA

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

Mr. Friso WIJNEN, Senior Policy Officer, Immigration Policy Directorate, Ministry of Justice, THE HAGUE

Mr Nina OFTEDAHL, Senior Executive Officer, Ministry of Justice and Police, Immigration Department, OSLO

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

M. Jorge PORTAS, Chef de la Division des Réfugiés, LISBONNE

Mlle Lavinia ZLOTEA, Attachée, Direction des Droits de l’Homme et Conseil de l’Europe, Ministère des Affaires Etrangères, BUCAREST

Mr Ilya ROGACHEV, Head of Division, Legal Department, Ministry of Foreign Affairs, MOSCOW

Mr. Igor PACOLÁK, Head of Unit, Ministry of Foreign Affairs, Consular Department, BRATISLAVA

Mr Uroš BUCAR, Senior Adviser, Ministry of the Interior, Asylum Department, LJUBLJANA

M. José LOPEZ LOPEZ, Directeur de la section visas, Direction Générale des affaires consulaires, Ministère des Affaires Etrangères, MADRID

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

Mme A.G. NIELSEN, Chef de la Section internationale, Division des affaires juridiques et internationales, Office fédéral des réfugiés, Département fédéral de justice et police, BERNE

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

Mr. Blagoja STOJKOVSKI, Chief Inspector for Foreigners, Ministry of Internal Affairs of the Republic of Macedonia, SKOPJE

M. Ahmet Necati BIGALI, Chef du Département, Organisations Politiques Internationales, Ministère des Affaires Etrangères, ANKARA

Mr Sergii BRYTCHENKO, Deputy Director, Citizenship Department, Administration of the President of the Ukraine, KYIV

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

Mme Muriel GUIN, Administrateur, Secrétariat Général, Task Force Justice/Affaires intérieures. Unité 1: Frontières extérieures, BRUXELLES

M. Jean-Luis LABERGE, Conseiller Principal, Direction Générale des Réfugiés, OTTAWA

Mr. Mario GATTIKER, Head of the Legal Department, LUCERNE

Mr. Antonio FORTIN, Chef de la Section des normes et des conseils juridiques, Division de la protection internationale, UNHCR, GENEVE

M. Salvatore LOMBARDO, Responsable du HCR au Conseil de l’Europe

M. Christian LEFEVRE, Représentant du CDMG, Direction de la population et des migrations, Ministère de l’Emploi et de la Solidarité, PARIS

Mme Hélène LAMBERT, University of Exeter, Amory Building, EXETER, UK

ANDORRE/ANDORRA

AUSTRALIE/AUSTRALIA

BOSNIE ET HERZEGOVINE/BOSNIA AND HERZEGOVINA

IRELAND/IRLANDE

JAPON/JAPAN

LETTONIE/LATVIA

LUXEMBOURG

SAINT-MARIN/SAN MARINO

ROYAUME-UNI/UNITED KINGDOM

ETATS UNIS D’AMERIQUE/UNITED STATES OF AMERICA

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

M. Géza TESSÉNYI, Secrétaire du Comité/Secretary of the Committee

Mme Judy LEDOUX, Division du Droit Public et International, Direction des Affaires Juridiques

Mme Karla CHARRETON, Division du Droit Public et International, Direction des Affaires Juridiques

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

Mr Philippe QUAINE

Mme Christine FARCOT

Mr Christopher TYCZKA

1. Opening of the meeting

2. Adoption of the Agenda

3. Discussion on the return of rejected asylum-seekers

4. Adoption of an opinion for the Committee of Ministers on temporary protection

5.    Preliminary discussion on family reunion for refugees and others persons in need of protection

6.    Preliminary discussion on refugee women

7. Developments in domestic law of member States concerning asylum, refugees, stateless persons and persons under temporary protection (questionnaire)

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

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

10. Future work

11. Other business

12. Adoption of reports.

 

RECOMMENDATION No. R (99) ..

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 and the 1951 Convention and its 1967 Protocol Relating to the Status of Refugees;

Anxious to preserve the institution of asylum and to ensure that persons who are in need of international protection have the possibility to seek and enjoy it;

Stressing that everyone shall be free to leave any country including one’s own and that no one shall be deprived of the right to enter the territory of the country of nationality;

Conscious of the need to avoid cases of statelessness;

Bearing in mind that persons who, after due consideration of their asylum claim in a fair and full procedure, are found by the competent authorities not to qualify for refugee status, or not to be in need of other forms of protection, have no right, unless authorised on other grounds, to stay on the territory of the host country and are therefore expected to co-operate with the respective authorities to facilitate return;

Considering that the competent authorities of the host country may take appropriate measures to ensure the return of such persons to their countries of nationality or former habitual residence, as the case may be;

Underlining that such measures shall be implemented under the conditions as prescribed by law and in conformity with applicable international obligations of the state, in particular as provided for by the European Convention on Human Rights;

Aware of Parliamentary Assembly Recommendation 1237 (1994) on the situation of asylum seekers whose asylum applications have been rejected;

Desiring to ensure that national legislation and practice concerning the return of rejected asylum seekers are in conformity with the principles indicated above and that the states concerned co-operate to that effect,

Recommends that:

1. the country hosting the person to be returned ensures that:

– whereas voluntary return is preferable, when nevertheless recourse to mandatory return is necessary, it takes place in a humane manner with full respect for fundamental human rights and without the use of excessive force,

– the principle of family unity be taken into account;

2. the country of origin of the person to be returned (the country of which such person is a national or a non-national former habitual resident):

– respects its obligation under international law to readmit its own nationals without formalities, delays or obstacles;

– refrains from applying sanctions against returnees on account of their having filed asylum applications or sought other forms of protection in another country;

– takes into account the principle of family unity, in particular as it concerns the admission of such family members of the persons to be returned who do not possess its nationality;

– does not arbitrarily deprive the person concerned of its nationality, in particular, to avoid statelessness;

– does not permit the renunciation of nationality when it may lead to statelessness as a means of preventing the return of the rejected asylum seeker;

3. host countries and countries of origin:

– co-operate in order to facilitate the return of rejected asylum seekers, in particular through the conclusion of readmission agreements;

– co-operate, through their respective competent authorities, in determining nationality or place of habitual residence, in order to permit the return of rejected asylum seekers;

4. member states share their experiences concerning their respective national return programmes and their co-operation with countries of origin and competent international agencies in the context of voluntary return.

Explanatory Memorandum

1.    The Committee of Ministers, in establishing the Specific terms of reference of the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR), stated that one of the Committee’s tasks is « to make proposals for the solution of practical and legal problems facing States in the field of territorial asylum, refugees and stateless persons, particularly by drawing up appropriate legal instruments (conventions and recommendations) in the liberal and humanitarian spirit of the member States of the Council of Europe aiming at among others to settle the question of the countries of first asylum and of territorial asylum and to look into specific situations in the new host countries ».

2.    Acting upon these terms of reference, the expert Committee identified that one of the main challenges facing the national authorities entrusted with asylum procedures is to maintain the credibility of the institution of asylum. These authorities are increasingly faced with the problem that persons who went through a full and fair asylum procedure and are found not to be in need of protection do not return to their country of origin (country whose nationality they posses or country of their former habitual residence). This is, in some cases, due to these persons, in other cases due to the reluctance of the country of origin to take these persons back. The CAHAR, therefore, decided to draft a recommendation to member States on this issue.

3.    The CAHAR, when drafting this recommendation, was bearing in mind the 1951 Convention and 1967 Protocol, the European Convention on Human Rights and its relevant case law, other recommendations of the Council of Europe which are relevant in this field, in particular, Recommendation No. R (81) 16 on the harmonisation of national procedures relating to asylum and Recommendation No. R (98) 13 on the right to effective remedy by rejected asylum seekers against decisions on expulsion in the context of article 3 of the European Convention on Human Rights. Relevant conclusions of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees were also taken into account.

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.

5.    The aim of the recommendation is to facilitate return and to provide States with certain guidelines when they return rejected asylum seekers from their territory to the country of origin. These guidelines relate to the treatment of the rejected asylum seeker by the host country and by the country of origin as well as to the co-operation between the two countries and among member States of the Council of Europe.

6.    In the context of this recommendation, the return of rejected asylum seekers is understood as the return of persons to their country of origin who, after due consideration of their asylum claim in a full and fair procedure are found by the competent authorities not to qualify for refugee status or not to be in need of other forms of international protection, and who are not being authorised on other grounds to stay in the host country.

7.    Situations where some member States consider that asylum seekers should apply for asylum in the first or subsequent country in which they had an opportunity to do so and such asylum seekers are to be removed to that country or sent to another country without the asylum application being examined in substance are not within the scope of this recommendation. Recommendation No. R (97) 22 containing guidelines on the application of the safe third country concept is dealing with such situations.

8.    The preamble recalls the 1951 Convention and the 1967 Protocol and the European Convention on Human Rights as key instruments for persons who are in need of international protection and seeking such protection in member States. Preserving the institution of asylum and allowing persons who are in need of international protection to seek and enjoy it are elements which are linked to the effective implementation of return of persons who have sought international protection but were found by the competent authorities not to be in need of it.

9.    The preamble stresses that everyone shall be free to leave any country including one's own and to return to the country of nationality, and that there is a need to avoid cases of statelessness.

10.    Rejected asylum seekers who have not right to stay in the host country are expected to co-operate with the respective authorities to facilitate return.

11. The competent authorities of the host country may take appropriate measures to ensure the return of rejected asylum seekers. If rejected asylum seekers deliberately hamper the implementation of return, reduction of social benefits according to law may be applied by the host country. Nevertheless, fundamental human rights of rejected asylum seekers must be fully observed in such situations also.

12.    Furthermore, specific measures (such as detention) may be applied by the host country if the rejected asylum seeker deliberately hampers the implementation of return. If detention is resorted to, it should not be applied as a sanction but as a specific, temporary and non-arbitrary administrative measure, it shall be implemented under conditions which are in accordance with law and correspond to standards established by the relevant international instruments and by the case law of the European Court of Human Rights.

13.    The operative part of the recommendation contains four points :

a. Firstly, it deals with the country hosting the person to be returned which should fulfil certain conditions. In case of return of rejected asylum seekers, voluntary return is the preferred option. Some Member States facilitate such return through organised return programmes which under certain conditions include material assistance to the person returning voluntarily.

When the rejected asylum seeker is not willing to return voluntarily, States may resort to mandatory return. In such cases, the return should be implemented in a humane manner and with full respect for fundamental human rights of the person to be returned during all stages of the return process and without the use of excessive force. The host country should be also taking into consideration the principle of family unity.

b. Secondly, the country of origin should respect its obligation under international law to readmit its own nationals without formalities, delays or obstacles which hinder or hamper the implementation of return measures by the host country. The country of origin should refrain from applying sanctions against returning persons on account of their having applied for asylum or having sought other forms of protection in another country and should take into consideration the admission of such family members of the persons to be returned who do not possess its nationality. The country of origin, if it is the State of nationality as well, should not arbitrarily deprive the person concerned its nationality, in particular to avoid statelessness and also should not permit the renunciation of national when it may lead to statelessness as a means to prevent the return of the rejected asylum seeker.

c. Thirdly, host countries and countries of origin should co-operate in order to facilitate the return of rejected asylum seekers in particular, readmission agreements can provide with a useful framework to facilitate such co-operation. In case of doubt about the nationality or former habitual residence of the rejected asylum seeker, international co-operation through the respective competent authorities in determining nationality or former habitual residence is also a useful tool to facilitate return.

d. Finally, Member States should share their experiences concerning their respective national return programmes and their co-operation with countries of origin and competent international agencies in the context of voluntary return.

 

1. The CAHAR, in accordance with the decision at the 641^st meeting of the Committee of Ministers, studied in detail the various aspects of the Assembly’s Recommendation and its consequences for the protection of the persons concerned, taking due account of the relevant conclusions of the Second Summit of Heads of State and Government of the Council of Europe, the work carried out by the UNHCR as well as by the European Union and arrived at the following opinion:

2. For some member States, temporary protection is a practical way, when individual examination of requests for protection is not possible, of dealing with cases of sudden and massive influx of persons from one country or region who are in temporary need of international protection, with a perspective of safe and dignified return. It is an exceptional measure, limited in time, and its application is without prejudice to international instruments, if any, applicable between member States.

3. Temporary protection complements the protection regime as enshrined in the 1951 Convention and its 1967 Protocol relating to the Status of Refugees. Temporary protected status is to be granted without prejudice to refugee status under the 1951 Convention.

4. Paragraph 9. iv . a.: Admission to the territory for beneficiaries is an important aspect of temporary protection, there might be a possibility to come to joint conclusions on this question by member States.

5. Paragraph 9. iv . b.: Under the specific circumstances of the Council of Europe, no ‘central’ decision-making structure is proposed as to the establishment of temporary protection regimes in relation to any particular group of persons. Any member State, however, would maintain its right to raise such an issue for consultation within the Committee of Ministers. The opinion of the UNHCR, when establishing, reviewing and phasing out a temporary protection regime by national authorities, should be sought and taken into account. There might be a possibility to come to joint conclusions on this question by member States.

6. Paragraph 9. iv . c. and h.: Respect for the principles of non-refoulement as well as the prohibition of torture or inhuman or degrading treatment or punishment are not disputed. The delayed examination of asylum requests contains difficulties as far as the length of suspension of such examination is concerned.

7. Paragraph 9. iv. d. e. f. g. and j.: The extent of entitlements concerning employment, education, family reunion and economic and social rights poses potential difficulties for agreeing on joint conclusions. Nevertheless, further discussion might take place in order to develop joint conclusions on these entitlements. The corresponding provisions of the 1951 Convention are recalled as one possible basis for such a discussion, partly because beneficiaries of temporary protection may include Convention refugees who have clearly established entitlements.

8. Paragraph 9. iv. i. and k.: Return to the country of origin when conditions allow is a key element of the concept of temporary protection. Voluntary return is the preferred option. In other cases, States should also take into consideration, when deciding about the return of such persons, compelling reasons some of them may have for not to be returned. Vulnerable groups need special attention and treatment. There might be a possibility to come to joint conclusions on these questions by member States.

9. Paragraph 9.iv. l.: The expeditious implementation of various elements of temporary protection is a task for those member States which apply this concept and experiences could be shared by governments at the competent expert committee of the Council of Europe.

10. The CAHAR also considered which situations in the country or region (within that country) of origin, which may not necessarily be covered by the refugee definition of the 1951 Convention, can force a large number of persons to flee who might be granted temporary protection in another country. There might be a possibility to come to joint conclusions on this question by member States.

11. Another question examined by the CAHAR was that of beneficiaries of temporary protection within which the exclusion clauses of the 1951 Convention were recalled. There might be a possibility to come to joint conclusions on this question by member States.

12. The duration of temporary protection was also examined by the CAHAR. This is linked to the possibility or impossibility of return and the delayed examination of asylum requests. There might be a possibility to come to joint conclusions on this question by member States.

13. The question of solidarity and burden-sharing was recalled in the context of temporary protection. This contains certain difficulties as far as « equitable distribution » (Assembly Recommendation paragraph 9.ii.) of persons and assistance to these persons are concerned.

14. The CAHAR also underlined the importance of intergovernmental co-operation both between different host countries and between host countries and countries of origin in the context of temporary stay and re-integration, respectively.

15. Within the specific framework of the Council of Europe and in the light of the specific circumstances, it might be possible to come to joint conclusions by member States in several of the above mentioned questions of temporary protection. A future joint conclusion (recommendation) should establish certain minimum guarantees for the persons concerned in relation to those member States which apply or wish to apply temporary protection measures.

1    Only drafting changes have been made . They concern Appendix III.