Select Committee on European Scrutiny Ninth Report


COM(00) 303

Draft Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.

Legal base: Article 63 EC; consultation; unanimity
Department: Home Office
Basis of consideration: Minister's letter to Lord Tordoff of 2 March 2001
Previous Committee Report: HC 28-iv (2000-01), paragraph 3 (24 January 2001)
To be discussed in Council: May 2001
Committee's assessment: Politically important
Committee's decision: Cleared; but information on progress requested


  6.1  This draft Directive is concerned with the establishment of an EU temporary protection regime in the event of a 'mass influx of displaced persons' and a mechanism for sharing the physical and financial burden of such a regime among the Member States. When we last considered the present proposal (in January), we did not clear it, stating that we would wait to see the Minister's response to our sister Committee in the House of Lords on a number of outstanding points and to our own request for information on progress.

The Minister's letter

  6.2  The Minister of State at the Home Office (Mrs Barbara Roche) has now replied to Lord Tordoff, Chairman of the Lords Committee, addressing, among others, the points on which we had concerns. Several of these related to issues raised in submissions from non-governmental organisations (NGOs).

  6.3  The first issues concerned the proposal from UNHCR[26] that an explicit statement about non-refoulement[27] should be included in the text. In response, the Minister cites several references in the draft document to the Geneva Convention (which establishes the principle of non-refoulement). She considers that the principle is fully reflected through these cross-references.

  6.4  The second issue related to NGO concern that the suspension of access to the asylum procedure until the end of the temporary protection regime might become the norm. The Minister does not agree that an explicit reference in Article 16 (which deals with access to the asylum procedure) to the effect that Member States may consider applications during the period of temporary protection is necessary. However, she accepts that the Article could be more clearly drafted and tells us that the UK is proposing that it be amended. She continues:

    "The issue of Member States' ability to suspend consideration, and the question of a reasonable time limit within which decisions should be made, might more appropriately be discussed within the context of the draft directive on minimum standards for asylum procedures."[28]

  6.5  In its submission, UNCHR had asked for provision for the temporary lifting of measures which might restrict entry and explicit recognition in the Directive of the principle of admission to EU territory. The Minister says:

    "I do not consider it either acceptable or necessary to suspend normal immigration controls in such circumstances. This could have a number of potentially serious consequences, including encouraging the migration to EU territories of persons from outside the target group attempting to benefit improperly from the crisis situation. My strong view is that the facilitation of travel for those within the target group, rather than the general suspension of normal immigration control mechanisms, is the more appropriate and effective option."

  6.6  Some NGOs had expressed concern about the lack of minimum standards or procedures for those unwilling to return voluntarily at the end of temporary protection. The Minister does not consider any such standards or procedures to be necessary. She emphasises that the Directive is intended to facilitate temporary protection in exceptional circumstances; it does not create a new status or form of protection. Inclusion of minimum standards might blur this distinction.

  6.7  Like our sister Committee, we had asked for a more detailed analysis of the issue of external competence. The Minister responds as follows:

    "Firstly, I consider that it is entirely right for Member States to seek to develop common positions in negotiations in wider international fora. Such an approach will often be to the advantage of the United Kingdom in that it can give extra weight to concerns which we share with our European partners. At the same time, I do not foresee that legal difficulties are likely to arise in circumstances where we judge that it would be in the interests of the United Kingdom to take a particular unilateral position in such fora. This is because the measures to establish minimum standards for the asylum process, provided for by Article 63 TEC, take as their starting point the Member States' existing international obligations, such as those provided for by the 1951 Geneva Convention. The proposed Directives which are now emerging from the Commission do not seek to replace or incorporate other relevant international agreements, such as the Geneva Convention, into Community law. Rather, they seek to establish minimum standards across the Union and co-operation between Member States in meeting those existing obligations.

    "The proposed directive on temporary protection, for example, covers procedures for co-operation between Member States in dealing with a specific crisis, and the minimum standards of protection to be offered in such circumstances. It does not exclude independent national action in response to such a crisis, nor does it prevent Member States from providing protection to higher standards than the minimum required.

    "Therefore I do not consider that our participation in measures based on article 63 TEC will create any legal constraints on the United Kingdom when discussing international instruments within other international fora. The United Kingdom will, of course, continue to be bound by Community law obligations and will seek to co-operate with its EU partners. But the question of external competence should not arise if, unlikely though it is, the United Kingdom wished to negotiate an agreement covering temporary protection with other international partners."

  6.8  We also asked to be kept informed of progress on areas where the Government considered further work to be necessary. The only one of these to which the Minister refers specifically is the issue of family reunification. She still considers the drafting of the relevant Article (13) to be defective, and tells us that the Government is proposing that it be "comprehensively rewritten with a clear and simple definition of those who might benefit from it, and clear rules about the circumstances in which reunification would take place". She expects the Article, once clarified, to be compatible with Article 8 ECHR (which establishes the right to respect for private and family life).


  6.9  We would have preferred the Minister to write to us as well as to our sister Committee, especially as she might then have been prompted to provide fuller information about progress on areas of the text where she considered further work was necessary. Nevertheless, her response is full and helpful.

  6.10  We note that the Minister is generally reluctant to agree that the text of the Directive might be changed to reflect the concerns raised by non-governmental organisations and others. We take her point that the Directive is not intended to create a new status or form of protection, and recognise that this may explain her stance. Even so, we agree with our sister Committee that the principle of non-refoulement should be explicitly stated as a core obligation.

  6.11  Since the Minister has now provided a full explanation of her position, we are content to clear the document. However, we expect to be kept informed of progress, and to receive new text of any Articles which are significantly amended.

26   UN High Commissioner for Refugees. Back

27  The prohibition of expulsion or return to a country where the life or freedom of the individual would be threatened. Back

28  (21792) 11622/00; see HC 28-v (2000-01), paragraph 8 (7 February 2001). Back

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