735th meeting – 20 December 20000

735th meeting – 20 December 20000


Item 10.5b


Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR)


b. Parliamentary Assembly Recommendation 1440 (2000) on restrictions on asylum in the member states of the Council of Europe and the European Union

(CM(2000)107; CM(2000)179)





The Deputies adopted the following reply to Parliamentary Assembly Recommendation 1440 (2000) on restrictions on asylum in the member states of the Council of Europe and the European Union:


“1.        The Committee of Ministers has carefully examined Parliamentary Assembly Recommendation 1440 (2000) and wishes to give the following reply:


2.         The Committee of Ministers emphasises that the measures adopted by the governments of member states in the distinct, although closely linked, fields of asylum and immigration are based on the conviction that it is necessary, in order to preserve the integrity of the institution of asylum, to maintain a distinction between persons fleeing persecution, who, on this basis, are in need of international protection, and persons who migrate for economic reasons or for reasons of personal convenience.


3.         Considering the developments in the asylum policies of Council of Europe member states, the Committee of Ministers set up the CAHAR, with instructions “to make proposals for the solution of practical and legal problems facing States” and “to search for concrete solutions aiming at the harmonisation of rules and practices which are followed in Europe in matters of asylum policy”.  The Committee of Ministers notes that the CAHAR and the other committees are dealing with asylum and immigration issues in the pan-European framework, so as to develop the principles which are common to all member states.


4.         The Committee of Ministers welcomes the significant work done by the Parliamentary Assembly on the right of asylum, as mentioned in paragraph 5 of the recommendation.  It also emphasises the importance that it attaches to the question, as shown by the recent adoption of several recommendations, which, furthermore, draw on the work of the Assembly, inter alia, and particularly:


-           Recommendation No. R (2000) 9 on temporary protection (of persons forced to flee their country);


-           Recommendation No. R (99) 23 on family reunion for refugees and other persons in need of international protection;


-           Recommendation No. R (98) 15 on the training of officials who first come into contact with asylum seekers, in particular at border points;


-           Recommendation No. R (98) 13 on the right to an effective remedy by rejected asylum seekers against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights;


-           Recommendation No. R (97) 22 containing guidelines on the application of the safe third country.


The Committee of Ministers also draws attention to other relevant instruments in this field, particularly the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the Status of Refugees.  It also emphasises the relevance of, inter alia, the Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967.


5.         Where paragraph 6.i of the recommendation is concerned, with a view to continuing to improve the common standards for the treatment of refugees and asylum-seekers, the committee of legal experts of the Committee of Ministers, the CAHAR, is implementing its active information policy relating to the way in which member states apply the conventions and recommendations adopted by the Committee of Ministers in the field of territorial asylum, refugees and stateless persons.  This also takes the form of practical measures in the future work of the CAHAR.


6.         The Committee of Ministers takes note of paragraph 6.ii of the recommendation.


7.         In respect of paragraph 6.iii and iv, the Committee of Ministers emphasises that the Geneva Convention of 1951 relating to the Status of Refugees is, and must remain, the cornerstone of asylum.  The incorporation of the right of asylum in the 1950 European Convention on Human Rights, or the drafting of a European convention on the harmonisation of policies on the right of asylum in Europe would not currently receive the consent of all member states.  Furthermore, while the right of asylum as such is effectively provided for neither in the European Convention on Human Rights nor in its protocols, the Convention nevertheless does grant significant protection to asylum-seekers, as shown by the case-law relating in particular to Articles 3 (prohibition of torture)[1], 5 (right to liberty and security)[2], 8 (right to respect for private and family life)[3] and 13 (right to an effective remedy)[4].  This case-law is constantly evolving[5].  The Committee of Ministers shares the Assembly's approach and takes the view that the Convention system has become an essential reference in respect of the law on refugees, relied on increasingly frequently in asylum cases (see Assembly report 8598, paragraph 52 in fine).  Furthermore, the CAHAR is currently drafting, with a view to adoption by the Committee of Ministers, an increasingly full range of recommendations to member states in this field.


8.         The Committee of Ministers, through the CAHAR, has studied the aspects of these provisions on which it might be possible to reach a consensus among member states (paragraph 6.v.a to c of the recommendation).


9.         The Committee of Ministers welcomes the Assembly's agreement on Recommendation No. R (97) 22 of the Committee of Ministers containing guidelines on the application of the safe third country concept (paragraph 6.v.d).


10.       The subjects of paragraph 6.vi of the recommendation fall within the remit of the European Union.”




[1]               See, inter alia, Chahal, judgment of 15 November 1996, Reports and Decisions 1996-V; Ahmed, judgment of 17 December 1996, Reports and Decisions 1996-V.

[2]               See Amuur, judgment of 25 June 1996, Reports and Decisions 1996-III; Chahal, already mentioned.

[3]               See Cruz Varas and others, judgment of 20 March 1991, Series A No.201 [no violation]; Gül, judgment of 19 February 1996, 1996-I, Reports and Decisions [no violation].

[4]               See Vilvarajah, judgment of 30 October 1991, Series A No.215 [no violation]; Chahal, already mentioned.

[5]               For instance, in its decision that application No. 43844/98, T.I. v United Kingdom, of 7 March 2000, was inadmissible, the Court took into account the way in which the national authorities concerned (British and German) applied the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“Dublin Convention”), of 15 June 1990.



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