Select Committee on European Scrutiny Fourteenth Report


The European Scrutiny Committee has made further progress in the matter referred to it and has agreed to the following Report:—




COM(01) 510

Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection.

Legal base:Article 63(1)(c), 63(2)(a) and 63(3)(a) EC; consultation; unanimity
Document originated:12 September 2001
Forwarded to the Council:7 November 2001
Deposited in Parliament:19 November 2001
Department:Home Office
Basis of consideration:EM of 4 December 2001
Previous Committee Report:None
To be discussed in Council:No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested


  1.1  The Conclusions of the European Council held at Tampere in October 1999 included reference to a Common European Asylum System. Such a system would include the approximation of rules on the content of refugee status and its recognition and would be complemented by measures on subsidiary forms of protection. The present proposal sets out rules for determining which applicants for international protection qualify for refugee status under the 1951 Geneva Convention[1] and which qualify for subsidiary protection status. The proposal forms part of a process which is intended to lead to the adoption, in the longer term, of a common asylum procedure and a uniform status for those granted asylum which would be recognised throughout the European Union.

  1.2  A number of instruments have already been adopted by the Council as part of this process,[2] and a number of others are being considered[3] dealing with such matters as minimum standards for temporary protection in the event of a mass influx of displaced persons, minimum standards on procedures for granting and withdrawing refugee status, a common asylum procedure and minimum standards for the reception of applicants for asylum in Member States. The object of such measures is to ensure that a minimum level of protection is available in all Member States and to reduce those disparities between Member States' legislation and practice which cause secondary migration.

  1.3  Although all Member States are party to the 1951 Geneva Convention and the 1967 New York Protocol, there have been divergent interpretations of the Convention and Protocol, notably in relation to granting refugee status where the fear of persecution is in relation to the acts of persons other than the State where the State of origin is unable or unwilling to provide effective protection, rather than from the State of origin itself.[4]

The proposed Council Directive

— scope

  1.4  The scope of the draft Directive is limited to specifying rules for determining which applicants qualify for refugee status under the Geneva Convention and which qualify for subsidiary protection.[5] It does not apply to the situation of third country nationals or stateless persons who are allowed by a Member State to remain on its territory for compassionate or humanitarian reasons not related to any need for international protection. The draft Directive contains provisions on the minimum rights and benefits to be enjoyed by the beneficiaries of refugee and subsidiary protection status, but it does not deal with the procedure whereby refugee or subsidiary protection status is granted or withheld.[6]

  1.5  The proposal is based on the "full and inclusive application of the Geneva Convention, complemented by measures offering subsidiary protection to those persons not covered by the Convention but who are nonetheless in need of international protection."[7] It adopts the definition of the term 'refugee' set out in Article 1(A)(2) of the Geneva Convention.[8] The Commission's Explanatory Memorandum states that this definition, as well as the Geneva Convention itself, "remains relevant today and is sufficiently flexible, full and inclusive to offer a guarantee of international protection to a significant proportion of those persons in need of it".

  1.6  As for subsidiary protection measures, these are described as being complementary to the protection regime established by the Geneva Convention and the 1967 Protocol. The definition in Article 2(f) of the proposal is described in the Commission's Explanatory Memorandum as being based on international human rights instruments such as Article 3 of the European Convention on Human Rights, Article 3 of the UN Convention against Torture and other cruel, inhuman or degrading treatment, and Article 7 of the International Covenant on Civil and Political Rights.

  1.7  The Commission explains that its objective in making the proposal is to set out minimum standards on the qualification and status of applicants for international protection, to ensure a minimum level of protection in all Member States and to limit secondary movements of applicants for international protection arising from diversity between the Member States in their rules on recognising refugee status and granting subsidiary protection.

— legal basis

  1.8  The chosen legal basis for the Commission proposal is Article 63(1)(c), 63(2)(a) and 63(3)(a) EC. Article 63(1)(c) provides for the adoption by the Council of measures on asylum relating to the status of refugees within a number of specified areas, such as 'minimum standards with respect to the qualification of nationals of third countries as refugees'. Article 63(2)(a) provides for the adoption of measures on refugees and displaced persons in the areas of 'minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection'.

  1.9  The Commission explains that its reliance on Article 63(3)(a) (which provides for measures on immigration policy, including conditions of entry and residence and standards on procedures for the issue by Member States of long-term visas and residence permits) is based on the consideration that, as this Article applies equally to refugees as to other third country nationals, it may be used for measures on the conditions of residence of refugees, including their rights to employment and education.

— the key provisions

  1.10  The key provisions of the draft Directive are those concerning refugee status or subsidiary protection (Article 5), the assessment of the applicant's fear of being persecuted (Articles 7 and 8), sources of harm and protection (Articles 9 and 10), the nature of persecution (Article 11) and the reasons for it (Article 12), the grounds for granting subsidiary protection (Article 15) and the provisions relating to refugee and subsidiary protection status (Articles 18 to 31).

  1.11  Article 5(1) of the draft Directive transposes the substance of the Geneva Convention definition of refugee. Article 5(2) provides that subsidiary protection shall be granted to any third country national or stateless person who does not qualify as a refugee but who "owing to a well-founded fear of suffering serious and unjustified harm as described in Article 15, has been forced to flee or to remain outside his or her country of origin and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".

  1.12  Article 7 sets out a minimum range of factors which must be taken into account when assessing an applicant's fear of being persecuted or exposed to other serious and unjustified harm. These include all relevant facts relating to the country of origin at the time of taking the decision, whether the applicant's fear is objectively established in terms of there being a reasonable possibility that the applicant will be persecuted or subjected to serious harm, whether the applicant has already been subject to persecution or serious harm or threats, the individual position and personal circumstances of the applicant and whether there is credible evidence that laws or regulations are in force and applied in the country of origin which authorise or condone the persecution of the applicant or the infliction of other serious and unjustified harm.

  1.13  Article 8 provides that the well-founded fear may be based on events which have taken place since the applicant left his country of origin. The well-founded fear may also be based on activities carried on by the applicant since he has left the country of origin, except where it is established that the activities were entered into for the sole purpose of creating the conditions for an application for international protection.

  1.14  Article 9 deals with the central question of whether the threat of persecution or harm must emanate from the State (i.e. of origin).[9] It provides that Member States shall consider that the fear is well-founded whether the threat emanates from the State, parties or organisations controlling the State, or "non-State actors where the State is unable or unwilling to provide effective protection". Article 9(2) provides that in evaluating the effectiveness of State protection in this latter case, Member States shall consider whether that State takes reasonable steps to prevent the persecution or infliction of harm, and whether the applicant has reasonable access to such protection. Article 9(2) further provides that "there must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actions which constitute persecution or other serious and unjustified harm".

  1.15  Article 10 provides that Member States may examine whether the well-founded fear of persecution or suffering serious harm is clearly confined to a specific part of the country of origin, but that there shall be a 'strong presumption'[10] against finding internal protection to be an alternative to international protection if the agent of persecution is, or is associated with, the national government.

  1.16  Article 11 sets out a minimum range of circumstances which the term 'persecution' is to cover. These include the infliction of serious and unjustified harm or discrimination which is sufficiently serious by its nature or its repetition as to constitute a significant risk to the applicant's life, freedom or security or to preclude the applicant from living in his or her country of origin. They also include legal, administrative, police and/or judicial measures which are designed or implemented in a discriminatory manner and if they constitute a significant risk to the applicant's life, freedom or security or preclude the applicant from living in his or her country of origin. These include prosecution or punishment where the applicant, on grounds of race, religion, nationality, political opinion or membership of a particular social group is denied means of redress or suffers a disproportionate or discriminatory punishment, or where the offence purports to criminalise the exercise of a fundamental right.

  1.17  Article 11(2) provides that it is to be immaterial whether the persecution stems from the State, parties or organisations controlling the State, or non-State actors where the State is unable or unwilling to provide effective protection.

  1.18  Article 12 sets out a number of elements which, as a minimum, must be taken into account in determining whether a well founded fear of persecution is based on reasons of race, religion, nationality, political opinion or membership of a particular social group. The provisions are based on the Geneva Convention itself and on the Council Joint Position of 3 March 1996 on the harmonized application of the term 'refugee' in Article 1 of the Geneva Convention[11] and do not appear to create any new rules in this area.

  1.19  The grounds for granting subsidiary protection are set out in Article 15. The Commission explains that these provisions are a clarification and codification of the best practice of Member States under the European Convention of Human Rights, rather than seeking to create completely new classes of person which the Member States are obliged to protect. Accordingly, Member States are to grant subsidiary protection status to an applicant if he has a well-founded fear of being subjected to torture or inhuman or degrading punishment or treatment, or violation of a human right sufficiently severe to engage the Member State's international obligations,[12] or of being subjected to "a threat to his or her life, safety or freedom as a result of indiscriminate violence arising in situations of armed conflict, or as a result of systematic or generalised violations of their human rights".

  1.20  Articles 18 to 31 set out a number of rights to be accorded to refugees and persons who are eligible for subsidiary protection. The provisions are largely declaratory of Member States' practice under the Geneva Convention and deal with such matters as protection from expulsion, residence permits (Articles 21 and 22), travel documents (Article 23) access to employment, education, social welfare and health care (Articles 24, 25, 26 and 27 respectively). Article 29 provides for the representation of unaccompanied minors enjoying international protection and Article 29 and 30 deal with access to accommodation and freedom of movement within the national territory, respectively.

The Government's view

  1.21  In her Explanatory Memorandum of 4 December 2001 the Parliamentary Under-Secretary of State at the Home Office sets out in outline the Government's views on the main provisions of the draft Directive. The Minister points out that the measure is proposed under Article 63 EC and would not apply to the United Kingdom unless the UK were to opt in.[13]

  1.22  The Minister comments as follows on the policy implications of the proposal:

"The Government welcomes the Commission's attempt to set meaningful minimum standards for qualification for refugee status and subsidiary protection status. A close degree of harmonisation is generally desirable in the asylum field in order to reduce disparities between Member States and so reduce secondary migration. This directive is only one element, albeit an important one, in meeting this objective.

"In common with earlier measures in this field, the proposed directive seeks to balance the need for meaningful minimum standards against the need to allow Member States an element of discretion to deal with specific national circumstances. As such, the directive does not demand that Member States apply a detailed set of qualification criteria but instead sets out core framework principles consistent with the Geneva Convention and international human rights instruments. The Government considers that the proposal adequately sets out the minimum standards required to determine who should qualify as a refugee and who should otherwise qualify as a beneficiary of subsidiary protection and what rights and benefits should be attached to their status.

"The Government considers that the interpretation of the Geneva Convention relating to refugees and compliance with international human rights obligations in the UK are already of a high standard and fully in accordance with the guidelines laid down by the United Nations High Commissioner for Refugees. For this reason, we judge that the proposed Directive as currently drafted would have a limited impact on the numbers of applicants granted refugee status or other forms of protection status.

"The Government is confident that the UK will be able to meet the principles set down in the draft Directive. However, the Government is concerned to ensure that the draft Directive does not inadvertently create delays, which would obstruct our domestic drive towards faster and more efficient consideration of asylum applications. We expect to press for minimum standards which, inter alia, enable rapid resolution of protection claims, which we consider to be to the benefit of all parties concerned."

  1.23  The Minister draws attention to Article 9 as one of the key areas of concern to the Government, and explains the purpose of the provision as follows:

"It rests on the argument that the main rationale behind the Geneva Convention and regimes of subsidiary protection is that everyone is entitled to be free from persecution or other forms of serious harm, and in the face of such harm should be able to access effective State protection. If persecution or other serious unjustified harm stems from the State then an applicant's fear of it is well founded because, de facto, there is no viable avenue of protection available in the country of origin. If it stems from non-state agents then any such fear is only well founded if the State is unwilling or effectively unable to provide against such risk of harm."

  1.24  The Minister explains that the Government supports this provision, which she describes as reflecting the case law and current practice of the UK, as well as that of "the vast majority of other Member States and the international community". However, the Minister further explains that this is not the case for Germany and France:

"Germany and France have historically supported a different interpretation of persecution, centred on whether victims of persecution by non-state agents should qualify for refugee status. France and Germany have maintained that they do not but the overwhelming majority view and practice is the opposite. The Government believes that the UK's interest would be best served by the broader majority interpretation because it is a key factor in establishing a level playing field for asylum applications and will help to ensure the effectiveness of the Dublin Convention[14] and its successor."

  1.25  On the question of including rules on the content of the rights attaching to refugee and subsidiary protection status, the Minister comments that the inclusion of such rules is essential "despite the arguable lack of an explicit legal basis for the content of refugee status". The Minister further comments that the rights and benefits attached to a protection status:

"are an important part of levelling the playing field across Europe and represent a crucial step towards harmonisation. Moreover, in order for the inclusion of content to be meaningful it is considered necessary that the level of rights and benefits given to those granted a protection status is sufficiently high."

  1.26  Finally, in relation to the rights attaching to refugee status compared with those arising from subsidiary protection, the Minister comments as follows:

"The Government also believes that the primacy of refugee status should be reflected in the level of rights and benefits attached to this status relative to those granted subsidiary protection. However, there are a number of reasons for limiting the difference between the two protection statuses: an individual's needs are the same regardless of the status granted; it would help limit the number of appeals by those refused refugee status but granted subsidiary protection; and meaningful rights, including full access to employment, are significant factors in encouraging genuine integration. The Government is broadly content with the level of rights detailed in the Directive and will resist any undue dilution called for by other Member States."


  1.27  We agree with the Minister in welcoming the proposal to set minimum standards by which qualification for refugee and subsidiary protection status is to be determined.

  1.28  We infer from the Minister's remarks that the UK will exercise its right to opt in to this measure, but we ask the Minister to confirm that this is so.

  1.29  As this measure is only one of a number of inter-related initiatives in the field of asylum and immigration, the overall effect of which may be difficult to predict, it seems to us that consultation with the United Nations High Commissioner for Refugees and with relevant non-governmental bodies will be particularly important. We therefore ask the Minister whether such consultation has been, or will be, undertaken, and for an account of such views as have already been expressed.

  1.30  We note the Minister's comment as to the arguable lack of any legal basis for rules setting out the content of refugee status, and ask her to explain this point more fully, including a description of any effect this may have on competence.

  1.31  We note that Article 10(1) provides only that there should be a 'strong presumption' against the return of a person to another part of the country from which he has fled, where the agent of persecution in that country is, or is associated with, the national government. We ask the Minister if she agrees that this rule provides inadequate protection to the refugee, and if she agrees that the vagueness of this provision serves only to introduce a new area for divergence between the practices of Member States.

  1.32  We shall hold the document under scrutiny pending the Minister's reply.

1  i.e. the Geneva Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 1967. Back

2  See (i) Council Decision 2000/596/EC of 28 September 2000 establishing a European Refugee Fund, (ii) Council Regulation 2725/2000/EC of 11 December 2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention, (iii) Council Directive 2000/55/EC of 20 July 2000 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. Back

3  See (i) Draft Council Directive on minimum standards on procedures in Member States for granting and withholding refugee status (21792): HC 28-v (2000-01), paragraph 8 (7 February 2001), (ii) draft Council Directive on minimum standards on the reception of applicants for asylum in the Member States (22428) 9074/01: HC152-i (2001-02), paragraph 22 (18 July 2001).  Back

4  France and Germany, for example, maintain that victims of persecution from non-State agents should not qualify for refugee status. The UK maintains that such victims do so qualify. Cf. R v. Secretary of State for the Home Department ex parte Adan and Aitseguer (House of Lords) 19.12.200). Back

5  'Subsidiary protection' is not a term used in the 1951 Geneva Convention. It is defined in Article 2(f) of the draft Directive as 'a form of international protection status, separate but complementary to refugee status, granted by a Member State to a third country national or stateless person who is not a refugee but is otherwise in need of international protection and is admitted as such to the territory of this Member State'. Back

6  As to procedure, see footnote 3 above. Back

7  Commission Explanatory Memorandum p.5. Back

8  The 1951 Geneva Convention, as amended by the 1967 Protocol, provides that the term 'refugee' shall apply to any person who 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it'.  Back

9  As is apparent from the speech of Lord Slynn in R.v. Secretary of State for the Home Department ex parte Adan and Aitseguer, (which concerned applicants who had arrived in the UK via France and Germany) that Germany would send back an applicant to Somalia on the basis that there was in that region no State or government which could carry out the persecution, while France would send an applicant back to Algeria on the basis that the persecution was not tolerated, encouraged or threatened by the State itself. However, in neither case would the United Kingdom send the applicant back, because it regards a threat of persecution by a body other than the State, and which is not tolerated or encouraged by the State, as a sufficient threat for the purposes of the Convention. Back

10  The force of this 'strong presumption' is far from clear. If the national government is responsible for the persecution, there would seem to be no case at all for returning the applicant. To do would seem to be inconsistent with the obligation under Article 33 of the Geneva Convention. Back

11  OJ No L063, 13.3.96, p.2. Back

12  This would cover such cases as Soering v. United Kingdom and Chahal v. United Kingdom where the expulsion of a person to a country where he would face a real risk of torture or inhuman or degrading treatment would involve the expelling country in a breach of Article 3 ECHR.  Back

13  The Minister does not, however, indicate if this is to be the case. Back

14  The Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities OJ No C 254, 19.08.97, p.1. The Dublin Convention seeks to allocate responsibility for determining an asylum application according to such factors as lawful residence of a family member in the Member State concerned, possession of a valid residence permit or visa for that Member State, the State where the EU external borders were first crossed and -in the absence of such factors- the State where the application is first lodged. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 5 February 2002