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Improving the quality and consistency of asylum
decisions in the Council of Europe member states

Resolution 1695 (2009)1

1.
Acceptance rates for asylum seekers in Europe vary
dramatically from one country to another, highlighting
important shortcomings in terms of quality of the asylum
decisions taken in the Council of Europe member states. As
evidence of this, in 2007 acceptance rates varied considerably
between 1% and 39% in countries receiving significant numbers
of asylum seekers. The situation was even more dramatic when
looking at certain specific groups of asylum seekers. For
example, again in 2007, the acceptance rates for Iraqis
seeking protection in Europe varied between 0 and 81%.

2.       The
very low recognition rates in certain countries, or for
certain groups of asylum seekers, may be due to difficulties
in accessing the asylum process, poor procedural safeguards in
the asylum proceedings, restrictive and divergent
interpretation of eligibility criteria, lack of objective and
reliable country of origin information, poor evidential
assessment, in particular the culture of disbelief in asylum
adjudication, political pressure, lack of training of the
relevant authorities and their personnel, or a combination of
these factors.

3.
Asylum decisions are sometimes inconsistent within one and the
same member state, as well as across the member states of the
Council of Europe. Inconsistency in asylum decisions means
that similar claims are treated differently. This is an
affront to the rule of law and inherently unfair. It is true
that different member states receive asylum seekers from
different countries, whose need for protection might vary.
However, taking this into account, the acceptance rates are
often found to diverge even more.

4.       There
are also significant differences between countries with
respect to the number of cases in which refugee status is
granted and the number of cases in which applicants are
afforded complementary protection (including, inter alia,
protection under the European Convention on Human Rights,
subsidiary protection and other humanitarian protection.

5.
Divergences may be even more dramatic when looking at
acceptance rates for specific countries of origin or ethnic
groups lodging applications at the same time, depending on the
countries in which the application for asylum are lodged. This
can be seen in relation to asylum seekers from Chechnya, Iraq,
Afghanistan and by Roma from Kosovo. For example, the
acceptance rate for protection seekers from Russia (primarily
Chechens) has been seen to vary from 0 to almost 80% in
countries which have received significant numbers of persons
belonging to this group.

6.       In
some Council of Europe member states, up to 50%, or in some
cases even more, of first instance decisions on asylum are
overturned on appeal, indicating that first instance decisions
are unreliable and of poor quality. An appeal against a
decision does not only delay final decisions, but it increases
the cost of the procedure and increases uncertainty for the
asylum seeker and members of his or her family. Furthermore,
not all states provide for a remedy with automatic suspensive
effect (such as appeal or judicial review proceedings which
effectively suspend an enforcement measure whose effect is
potentially irreversible), as required by the European
Convention on Human Rights.

7.        All
asylum decisions should be guided by fundamental principles
and objectives of human rights and the 1951 Geneva Convention
Relating to the Status of Refugees and its 1967 Protocol (the
Geneva Convention), rather than by political considerations.
Any asylum system needs to deal fairly, humanely and
efficiently both with those in need of international
protection and also those who are found not to need
international protection.

8.       It is
important to improve the quality and consistency of asylum
decisions and tackle the significant discrepancies in
acceptance rates whether these occur within or between
countries. In order to do this, the Parliamentary Assembly
calls upon Council of Europe member states to:

8.1 .
ensure access to the asylum process by:

8.1.1.
ensuring that
enhanced border controls, whether on land or at sea, do
not entail asylum seekers being denied access to the
asylum system. Where border controls are put in place,
it must be ensured that the protection offered is at the
same level as that provided within the country and
border monitoring should be put in place, involving
national border authorities, non-governmental
organisations (NGOs) and the Office of the United
Nations High Commissioner for Refugees (UNHCR);

8.1.2.
providing asylum seekers with full information about
procedures affecting them in a language they can
understand, and allowing UNCHR and legal and NGO
advisors access to asylum seekers at the earliest
opportunity, in particular to those who are held in
detention, airport and port transit zones;

8.1.3.
removing practical barriers to the asylum process, such
as deadlines for filing applications which are
unreasonably short or applied automatically, restrictive
language requirements for filling in application forms
and problems with access to competent interpreters;

8.1.4.
providing for a personal interview for the purpose of an
examination of an asylum application;

8.1.5.
providing for legal assistance and representation, free
of charge in accordance with the relevant national rules
regarding legal aid, not only at appeal stage but also
from the beginning of the asylum process;

8.2.
ensure that eligibility criteria both in relation to
asylum and complementary protection are fully compliant
with fundamental rights by:

8.2.1.
ensuring that gender- and child-specific forms of
persecution are taken fully into account and that the
assessment of evidence is gender- and
child-sensitive;

8.2.2.
clarifying and harmonising the approach to persecution
by state and non-state actors, and the acceptance of
internal flight alternatives (safe areas within the
country where persons can flee or return);

8.2.3.
ensuring that common minimum standards (but not lowest
common denominator standards) on the use of various
forms of complementary protection are established to
reflect clearly those legal obligations under the
European Convention on Human Rights and other human
rights instruments and obligations applicable when
asylum seekers are non-removable;

8.2.4.
guaranteeing similar status to recipients of both
refugee status and complementary
protection;

8.3.
improve procedural safeguards, including those at appeal level
by:

8.3.1
frontloading resources (concentrating resources as early
as possible in the asylum procedure) as a crucial means
to achieve greater consistency and quality in asylum
decisions and to ensure that decisions are taken
promptly without wasting time, energy and money on
lengthy appeals;

8.3.2.
removing all procedural practices that violate the
European Convention on Human Rights and/or lead to
erroneous assessments increasing the risk of
refoulement. These include, inter alia,
unreasonably short, automatic time limits,
non-suspensive appeals and weak standards of appellate
review;

8.3.3.
dealing with asylum applications fairly and efficiently
without jeopardising the quality or consistency of the
decisions, and using accelerated asylum procedures as an
exception and only limited to clearly abusive or
manifestly unfounded cases. Accelerated asylum
procedures should not be used for persons in a
vulnerable situation (including unaccompanied and/or
separated minors/children, survivors of torture, victims
of sexual violence or human trafficking and persons with
mental and/or physical disabilities) or in complex
cases;

8.3.4.
dealing with asylum applications in a way which
guarantees personal dignity, the best interest of the
child and the unity of the family;

8.3.5.
refraining from the use of lists of safe countries of
origin and safe third countries, to ensure that each
asylum case is examined individually with rigorous
scrutiny of the particular situation of each applicant
with respect to the country in question. The asylum
seeker must be allowed to rebut any presumption of
safety that may be raised. Furthermore, states must be
satisfied that receiving states will in fact provide
effective protection of the individual asylum seeker, in
order to comply fully with obligations under the
European Convention on Human Rights;

8.3.6.
ensuring that reasoned decisions on facts and law are
given on all international protection decisions;

8.4.
improve the quality of information and evidence used, and its
assessment, by:

8.4.1.
ensuring fair assessment of the individual’s testimony
and credibility, giving, where necessary, the benefit of
the doubt to the applicant;

8.4.2. preparing, as appropriate,
regular and updated country of origin information and
guidance notes for decision makers at all levels,
including judges, and publishing key case law in order
to contribute to the consistency and quality of
decisions;

8.5.
provide adequate training and support for those involved in
the asylum process and provide ongoing monitoring of the
asylum process by:

8.5.1.
ensuring that training is provided to all those involved
in the asylum process, including judges, on
international refugee law and human rights standards.
Training on cross-cultural communication skills and
gender and age sensitivity should also be provided,
together with training on interviewing children. Support
and counselling should also be provided to deal with
problems which those working in the field of asylum
often face (such as “burn-out” including fatigue,
diminished interest, feeling overwhelmed, and the
culture of disbelief);

8.5.2.
ensuring that asylum claims are thoroughly and
individually reviewed by more than one qualified
decision maker, with adequate resources, including time,
at their disposal;

8.5.3.
implementing a regular audit of the asylum process, in
consultation and in co-operation with UNHCR where
appropriate, taking into account the good practice
established, including programmes such as the Quality
Initiative in the United Kingdom;

8.5.4.
supporting the International Association of Refugee Law
Judges in its work on training judges, holding
conferences and bringing together case law precedents
from across Europe so as to build up an accessible
database of case law.

9.       The
Assembly invites the European Union to:

9.1.
take into account the recommendations made in this
Resolution in implementing its Common European Asylum
System and ensure that consistency is not achieved to the
detriment of procedural safeguards and that minimum
standards do not also become maximum standards;

9.2.
revise, as a matter of urgency, the Dublin II Regulation
and the “safe country” mechanism, as they are premised on
a false assumption of equal standards of protection across
Europe;

9.3.
give priority – in the setting up of a European asylum
support office – to the issue of raising the quality and
consistency of asylum decisions in Europe;

9.4.
promote responsibility-sharing amongst European Union
member states to relieve the burden on those states that
are struggling to handle large scale arrivals of asylum
seekers, and to provide those states with capacity
building assistance to cope with future asylum
challenges;

9.5.
prioritise in its revisions of the Procedures and
Qualification Directives the removal of provisions which
are in tension with the European Convention on Human
Rights and other international instruments.

10.       The
Assembly invites the Council of Europe’s Commissioner for
Human Rights to continue addressing the issue of the quality
and consistency of asylum decisions in his work with
individual member states and to use his network of national
human rights institutions to develop a thematic report on the
issue for the benefit of all member states.

1 Text adopted by the Standing
Committee acting on behalf of the Assembly on 20 November 2009
(see Doc.
11990, report of the Committee on Migration, Refugees and
Population, rapporteur: Mr Cilevičs).

See also
Recommendation 1889 (2009)

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