Non-Binding Instruments Adopted in Inter-Governmental Co-Operation Member states were actively co-operating in justice and home affairs even before the

TEU made some of those issues a matter of common interest. Therefore, the acquis ex-tends to decisions reached at the purely intergovernmental level. Their status is unclear because they emerged as non-binding instruments that resulted from purely intergovern-mental negotiations without the control of the Community organs. Nonetheless, they ap-pear significant in the light of the fact that decisions properly arrived at under the TEU refer back to them.'?

Decision to establish aCentre for Information, Discussion and Exchange on Asylum (CIREAj18

CIREA is a c1earing house of information and policy analysis. Following logicaIly from the tasks of the Dublin Convention.'? CIREA gathers, exchanges and disseminates information and compiles documentation on matters related to asylum. CIREA is an in-formai structure that involves the participation of the Commission. Associated states, which might wish to establish closer links with CIREA, might experience difficulties. It is neither a Community body nor an intergovernmental organisation with clear rules on ac-cession.

36 UNHCR and itsParlners in Europe UNHCR, Geneva, 1995, p.33.

37 E.g.TheResolution on theminimum guarantees intheprocedure builds on the concept ofmanifestly un-founded asylum application as elaborated in the pre- TEU period.

38Reproduced inCIREA 34464/1/95 REV 1 asll. H.

39JOLY,DANlÉLE:The Porous Dam; European Harmonisation on Asylum in the Nineties, International Journal of Refugee Law. Vol. 6, No.2,1994,p.173.

Resolution on manifestly unfounded applications for asytumt''

This Resolution defines a manifestly unfounded application as a request which can be hand led in a speedy mann er in an accelerated procedure which "need not include full ex-amination at every level of the procedure'"! and should lead to an initial decision within a month.

Three types of applications fali into this category:

• Claims without substance as to the fear of persecution.

These include cases in which no Convention grounds are raised, or the applicant lacks credibility or gives no personal details on the substance of the claim. The availability of an internal flight alternative or the fact that the applicant is coming from a country where

"there is in general terms no serious risk of persecution't" may also lead to the corclusion

that the claim lacks substance.

• Deliberate deception or abuse of procedures

Seven subsections identify actions which amount to deceit or abuse, including main-taining a false identity, deliberately making false representations, destroying travel docu-ments, destroying tickets, remaining silent about earlier applications for refugee status, submitting an application merely to forestalI an impending expulsion measure, and fla-grant violation of procedural rules.

Although practices justify accelerated procedure, under the Resolution, they do not in themselves "outweigh a well-founded fear of persecution under Article I of the Geneva Convention't.P

• Cases falIing within the provisions of the Resolution on host third countries.

Resolution 011a harmonised approach to questions of host third countries

This Resolutiorr" on a harmonised approach to the concept of host third countries was adopted at the London meet ing of Ministers responsible for Immigration on November 30 and December 1, 1992. It defines host third countries as countries of trausit or potential destination where the applicant's life and freedom are not threatened within the mean ing of Article 33 of the Geneva Convention, the applicant is not exposed to torture or

inhu-40Adopted at thc London meet ing of Ministcrs rcsponsiblc for lmmigration, November 30 and December 1,1992. Reproduced in UNHCR: Collection of International lnstruments and Other Legal Tcxts Conccrning Refugees and Displaced Persons, Vol. II, Regional Instruments, Geneva, 1995, p.455. See also A Guide to Asylum Law and Practice in the European Union, compiled by G. Care, ILPA, London, 1995, p. 1.

·11Resohnion on manifestly unfounded applications, paragraph 2.

41Resolution on manifestly unfounded applications, paragraph 8.

43 Resolution on manifestly unfounded applications, paragraph 10.

44 Reproduced in UNHCR: Collection of International Instruments and Other Legal Texts Conoeming Refugees and Displaced Persons Vol. II, Regional Instrumems, Genova, 1995, p. 459. See also AGuide to Asylum Law and Practice in the European Union, comoiled byG.Care, ILPA, London, 1995,p. 5.

man or degrading treatment and the applicant is effectively protected against refoulement.

Whether she had actual protection, or any contact with the auth ori ties, is immaterial. The mere opportunity to contact the authorities, e.g., at the border. qualifies a country as host third (sa fe) country.

The Resolution establishes an exception from the duty to examine each case on its merits. Applicants can be se nt back to the host third country "irrespective of whether or not they may be regarded :lSrefugees.?" In relation to the Dublin Convention, the resolu-tion gives priority to sending the applicant back to a non-member state. However, if the first state does not retum the applicant to the host third state, but transfers her to another state responsible for the examination of the application under the Dublin Convéntion. the latter may not decline this responsibility unless it can itself send the applicant to a host third country. Naturally, every state retains its right not to make use of these possibilities but to dec ide on the refugee status in its own substantive procedure.

The Immigration Ministers "agreed to seek to ensure that their national laws are adapt-ed, if need be, to incorporate the principles of this resolution as soon as possible, at the latest by the time of the entry into force of the Dublin Convention.t'v

Conclusions on countries in which there is general/y no serious risk ofpersecution'!

Paragraph 8 of the Resolution on manifestly unfounded applications indicates that a general but rebuttable presumption about the safety of a country of origin may be adopted byMember States. A country can bepresumed sa fe if it can be clearly shown in an objec-tive and verifiable way that it normally does not generate refugees because in general tenns no serious risk of persecution exists there. These conclusions identify tour basic elements which render a country safe:

- Observance of human rights, interms oftreaty obligations and domestic legislation and - which is "clearly more importanr?" - practice in conformity with the obligations. Mere adherence to human rights instruments do es not result in a country being considered safe.

- Demoeratic institutions, such as elecrions, politicai pluralism, freedom of thought and expression, augmented by available and effective legal protection and redress.

- Low recognition rate among applicants coming from the state where generally there is no persecution.

- Lack of foreseeable dramatic change (e.g., a violent coup) in the imrnediate future.

Member States undertake to exchange information derived from a wide range of sources, including UNHCR, NGOs and the press. It must be stressed that applicants coming from a safe country of origin, face only a rebuttable presumption that they do not fear persecu-tion. They have the right to an individualised - even if accelerated - determination pro ce-dure.

45Resolution on host third countries, paragraph t.(a) 46Resolution on host third countries, paragraph 4.

47 Reproduced in UNHCR: Collection of International Instruments and Other Legal Texts Concerning Refugees and Displaced Persons Volume II,Regional Instruments, Geneva, 1995, p.461. Seealso A Guide 10

Asylurn Lawand Practice in the European Union,compiled by G.Care, ILPA,London, 19\15,p.8.

48 Conclusions on countries in which thereis generally noserious riskofpcrsecution, paragraph 4(b),

5. The Acquis as a Yardstick

The preceding list of the most important rules constituting the acquis is an attempt to summarise th em in acompressed form without distorting their meaning. Certainly, the presentation is selective: it concentrates on those features which pose the greatest chal-lenge to the associated states or generate the most debate. Moreover, the presentation is cursory. It assumes the content of the major multilateral conventions open to the associ-ated states isweil known and does not need reproduction here. The linearity of the analy-sis also excludes comments or critical rernarks, as weil as explanations of the history of the instruments presented. They will be woven into the following discuss ion, a com pari-son between the acquis and the law and practice of the associated states.

II. THE LAW AND PRACTICE OF THE ASSOCIATED STATES