US embassy cable - 04BRUSSELS1911

UNCLAS SECTION 01 OF 03 BRUSSELS 001911 
 
SIPDIS 
 
DHS FOR IAO, BORDER PATROL 
DOJ FOR CRM 
ROME ALSO FOR INS 
 
E.O. 12958: N/A 
TAGS: PREF, PREL, CMGT, CVIS, SMIG, KCRM, EUN, USEU BRUSSELS 
SUBJECT:  EU AGREES ON ASYLUM PROCEDURES DIRECTIVE 
 
REF: (A) USEU BRUSSELS 1448; 
 
     (B) USEU BRUSSELS 742; 
     (C) USEU BRUSSELS 309 
 
SUMMARY 
------- 
 
1.  The EU Justice and Home Affairs Council on April 
29 reached political agreement on a draft Directive 
imposing minimum standards on procedures in Member 
States for granting and withdrawing refugee status. 
Coupled with the formal adoption of the Asylum 
Qualification Directive on the same day, the deal 
sets out the bases of a Common EU Asylum System as 
envisaged under the EU Tampere program and in 
keeping with the target of the Amsterdam Treaty. 
UNHCR, however, has raised concerns that the new EU 
Directive "may lead in practice to breaches of 
international refugee law." Full text of the Council 
conclusions has been transmitted to EUR/ERA. 
Justice issues discussed at the meeting will be 
reported SEPTEL.  END SUMMARY. 
 
"MINIMUM STANDARDS" DIRECTIVE 
----------------------------- 
 
2.  The Irish Presidency at the April 29 meeting of 
EU Justice and Home Affairs (JHA) Ministers in 
Luxembourg succeeded in its goal to record political 
agreement on the Asylum Procedures Directive that 
lays down minimum standards on procedures in Member 
States for the grant and withdrawal of refugee 
status.  The accord, which remains subject to 
parliamentary scrutiny reservations, ends three and 
a half years of negotiations in which Germany and 
the UK held major reservations at various stages. 
It enables the EU to complete the first stage of a 
Common European Asylum System within the five-year 
deadline (May 1, 2004) set by the 1999 Tampere 
European Council and the Amsterdam Treaty.  The 
Directive is the final building block of this first 
stage, described by EU officials as "minimum 
standards legislation." 
 
3.  The Directive deals with matters such as right 
of access to an asylum procedure, requirements for 
the examination of asylum applications and 
guarantees for applicants (interviews, consultation 
with UNHCR, access to legal aid, etc.), obligations 
for applicants to cooperate with the asylum 
determination process and nature of outcome to be 
expected where an applicant fails to cooperate.  The 
Irish Presidency said the Directive provided for "an 
effective remedy/appeal against negative first 
instance decisions in asylum applications and a 
legal framework for the application of the safe 
country of origin and safe third country concepts in 
EU law." 
 
4.  Final difficulties related to the potential use 
of lists of countries to keep asylum seekers out of 
the EU territory or to expedite handling of asylum 
applications (REFTEL).  Member States agreed to 
establish a minimum list of safe countries of 
origin, whereby asylum applicants coming from those 
countries will have their application denied by an 
accelerated procedure.  However, in order to secure 
the necessary consensus, the Irish Presidency made 
the text somewhat less detailed than the 
Commission's original proposal.  The Council 
"undertook to conduct during the coming months an in- 
depth assessment of countries that may be included 
in a minimum common EU list of safe countries of 
origin to ensure that they fulfill the criteria in 
the Directive."  Taking account of substantive 
changes with respect to the text on which the 
European parliament was originally consulted, the 
Council decided to re-consult before formal 
adoption. 
 
5.  The UNHCR issued a statement expressing "regret" 
that the EU missed an opportunity to adopt high 
standards with regard to asylum.  A press communique 
by UNHCR argued that the new EU Directive "may lead 
in practice to breaches of international refugee 
law."  The most worrisome provisions of the 
Directive, it said, relate to "safe third countries" 
to which asylum seekers may be returned and lack of 
appeal procedures.  JHA Commissioner Vitorino at the 
final press conference rebutted "NGOs' concerns," 
saying that the standards agreed in the Directive 
were consistent with international obligations of 
the Member States, such as the Refugee Convention 
and the European Convention on Human Rights.  Though 
he would not deny that the "level of ambition" of 
the agreed text was lower than the original and 
amended versions of the Commission proposal, 
Vitorino stressed that the deal provides for "the 
same safeguards" for asylum applicants across the 
EU: comprehensive information about the procedure at 
the start of the process, access to legal 
assistance, the right to an interview and a 
motivated decision in writing by an authority 
qualified in refugee law. 
 
6.  According to the Commission, the Directive will 
ensure that all negative decisions on asylum 
applications in the EU are subject to judicial 
scrutiny.  Member States can provide lower 
safeguards only in three very specific situations 
defined in the Directive: 
 
--   Where an applicant arrives at the border and 
     makes an application which can be considered 
     unfounded within four weeks; 
 
--   Where an applicant makes, after a previous 
     procedure, a new application without bringing 
     forward any new relevant facts, 
 
--   Where the applicant could have asked for asylum 
     in a third country, which is considered safe by 
     a Decision of the Council because the third 
     country fully respects the Refugee Convention 
     and the European Convention of Human Rights. 
 
QUALIFICATION DIRECTIVE 
----------------------- 
 
7.  The Council also formally adopted without 
discussion the Directive on minimum standards for 
the qualification and status of third country 
national or stateless persons as refugees or as 
persons who otherwise need international protection 
and the content of the protection granted (REFTEL 
and previous).  The March 30 JHA Council had reached 
Agreement on the text subject to a parliamentary 
scrutiny reservation by the Dutch delegation. 
 
A COMMON EU ASYLUM SYSTEM 
------------------------- 
 
8.  Mc Dowell and Vitorino said the deal on the two 
Directives, together with the other legislative 
instruments on asylum already adopted by the 
Council, would guarantee a minimum level of 
protection and procedural safeguards in all Member 
States for those who are genuinely in need of 
international protection, while preventing abuses of 
asylum applications that undermine the credibility 
of the system.  Vitorino said:  This "effectively 
means that the first phase of the Common European 
Asylum System has now been established.  Both 
Directives will significantly contribute to a common 
approach across all 25 EU Member States.  The 
Directives will promote mutual confidence in Member 
States' asylum systems in the EU, where only one 
Member State will be responsible for a particular 
application." 
 
OTHER BUSINESS 
-------------- 
 
9.  The Commission briefly updated the Council on 
the state of play concerning visa reciprocity and 
its recent proposal requesting a Council mandate to 
negotiate with the Russian Federation a visa 
facilitation agreement. 
 
10.  Among other decisions taken without discussion, 
the Council formally adopted: 
 
--   A Directive on the residence permit issued to 
     victims of trafficking in human beings from non- 
     EU countries or to non-EU nationals who have 
     been the subject of an action to facilitate 
     illegal immigration who cooperate with the 
     competent authorities; 
 
--   A Council Directive on the obligation of 
     carriers to communicate passenger data (REF.A); 
 
--   A Decision on the organization of joint flights 
     for removals, from the territory of two or more 
     Member States, of non-EU nationals who are 
     subjects of individual removal orders; 
 
--   A Regulation concerning the introduction of 
     some new functions for the Schengen Information 
     Systems, including in the fight against 
     terrorism; 
 
--   Conclusions on the location, management and 
     financing of the new second generation SIS. 
     Minister Mc Dowell thanked France and Austria 
     for making their respective facilities at 
     Strasbourg (central part of SIS II) and 
     Salzburg (business continuity site) available 
     for the system.  The decisions will enable the 
     Commission to have the requisite facilities 
     available for the contractor selected to 
     develop the system, thus ensuring that the 
     timetable for developing SIS II is maintained; 
 
--   Decisions amending the Common Schengen Manual 
     to include provision for targeted border 
     controls on accompanied minors and to use a 
     standard forum for refusal of entry; 
 
--   A Decision determining the minimum indications 
     to be used on signs at external border crossing 
     points. 
 
COMMENT 
------- 
 
11.  The fact that the final text of the Procedures 
Directive does not have "as high a level of 
ambition" as the Commission originally envisaged 
reflects both the unanimity requirement and the 
sensitive character of asylum issues in many EU 
countries.  However, the Directive will contribute 
to creating a level playing field in the area of 
asylum in the 25 Member States.  Experience will 
show whether this will enhance mutual confidence in 
Member States' systems.  The deal opens the way to 
the second stage of the Common European Asylum 
System and allows further approximation of Member 
States legislation and practice.  Future EU 
legislation in this area will include co-decision 
with the European Parliament and allow for qualified- 
majority voting in the Council. 
 
FOSTER