8. MINIMUM STANDARDS FOR PROCEDURES FOR
GRANTING AND WITHDRAWING REFUGEE STATUS
Draft Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status.
Amended draft Directive on procedures in Member States for granting and withdrawing refugee status.
|Legal base:||Article 63 EC; consultation; unanimity
|Document originated:||(b) 18 June 2002
|Deposited in Parliament:||(b) 24 June 2002
|Basis of consideration:||EM of 24 September 2002
|Previous Committee Report:||(a) HC 28-v (2000-01), paragraph 8 (7 February 2001)
|To be discussed in Council:||No date set
|Committee's assessment:||Politically important
|Committee's decision:||(a) Cleared
(b) Not cleared; further information requested
8.1 The draft Directive aims to set minimum standards
for fair and efficient asylum procedures in Member States. As
the legal base falls within Title IV of the EC Treaty, the UK
had three months from the formal publication of the proposal in
which to decide whether to opt in to the measure (in accordance
with the provisions in the Protocol on the position of the United
Kingdom and Ireland now annexed to the EC Treaty and the Treaty
on European Union). It exercised its right to opt in on 23 January
8.2 When we considered an earlier version of the draft
Directive (document (a)), we noted that negotiations were just
beginning and many issues needed detailed discussion, and we therefore
kept the document under scrutiny. That was almost two years ago.
8.3 Our sister Committee in the House of Lords published
a report on the proposal in March 2001.
While it acknowledged that the measure, in many respects, set
out a strong statement of basic principles and guarantees for
the protection of asylum applicants, it noted a perceived danger
that the establishment of minimum standards might, in practice,
lead to a lowering of standards. It identified concerns about
the Directive's compatibility with the Geneva Convention and the
European Convention on Human Rights and about the adequacy of
protection against 'refoulement'.
It also raised questions about the accelerated procedure and use
of the concepts "manifestly unfounded applications",
"safe country of origin" and "safe third country".
The report noted criticisms of the provisions on the detention
of asylum applicants and those on the appeal procedures.
8.4 After very slow progress in working groups, the Commission
has now submitted an amended draft Directive in an attempt to
break the stalemate.
The document and the Government's view
8.5 The Parliamentary Under-Secretary of State for Race
Equality, Community Policy and European and International Policy
(Lord Filkin) tells us that the Government, which broadly supported
the original proposal, nevertheless welcomes the Commission's
attempts to meet the concerns expressed by Member States in working
groups. He outlines the four major additions to the proposal:
- an expansion of the categories of cases that can be considered
as manifestly unfounded and inadmissible and dealt with via an
- a faster preliminary examination of repeat asylum applications;
- an ability to retain existing national border procedures that
determine whether an asylum applicant may enter the country (although
certain guarantees must be laid down in national legislation by
the time the measure is adopted);
- the ability to detain asylum applicants for up to two weeks
in situations where detention is necessary in order for the determining
authorities to make a quick decision on the application.
8.6 The Minister tells us that the UK's problems with
the original proposal in the areas of detention and appeals have
largely been resolved. In relation to detention, he says:
"The Government expressed previous concerns that the Article
relating to detention failed to give full clarification of the
circumstances when asylum seekers may be detained. The amended
proposal goes much further in describing the circumstances where
asylum applicants can be detained. The Government continues to
be committed to faster and more efficient asylum procedures and
sometimes this requires detaining the applicant in order to deliver
a quick decision on their claim. We are pleased to see that the
amended proposal allows for this but still imposes a two-week
time limit for detention under these circumstances in order to
ensure that the individual is not detained for an unreasonable
length of time.
"On the whole, the Government is satisfied with the detention
provisions in the amended proposal. However, the Government believes
that they may need to be clarified in order to make it clear that
asylum applicants may also be detained if they pose a serious
threat to national security."
8.7 Turning to appeals, the Minister tells us that the
original proposal appeared to give suspensive effect
to appeals against removals to other Member States under the terms
of the Dublin Convention.
The Government's concerns on this issue have been resolved by
Article 40(1) of the amended proposal which states that:
"Member States shall lay down in national law those cases
in which applicants for asylum lodging an appeal against or requesting
a review of a decision taken under the accelerated procedure are
not to be allowed to remain on the territory of the Member State
concerned pending its outcome."
8.8 He continues:
"Article 40(2) does however stipulate that an applicant has
the right to apply to a court of law to request they rule that
the applicant may remain on the territory until a final decision
on their application is made. Appeals against third country cases
refused under the terms of the Dublin Convention do not attract
a suspensive right of appeal in the UK. The applicant may challenge
the decision by way of judicial review. We are satisfied that
this meets the requirements of the amended Procedures Directive.
"The Nationality Immigration and Asylum Bill proposes to
introduce non-suspensive appeals for clearly unfounded cases.
As with Dublin cases, an applicant will retain the right
to challenge this decision by way of judicial review and removal
would not be effected until any judicial review action was completed.
The Government is satisfied that this future change in UK domestic
legislation will be compatible with Article 39 of the amended
"The only concerns that the Government does have about the
new Articles 39 and 40 is the competence that appears to have
been given to a court of law to intervene of its own accord on
failed asylum seekers who do not have a suspensive right of appeal.
We do not entirely understand how a court can intervene if it
has not been asked to do so and feel this will need clarification
and/or amendment once negotiations are underway."
8.9 The Minister tells us that the Government still has
some minor concerns about the requirement to provide applicants
with information on procedure in a language that they understand.
"However, the Government has started introducing Induction
Centres and applicants who pass through one of the Induction Centres
are given detailed briefing on the asylum process in their own
8.10 The Minister tells us about some other Articles
in which the Government will wish to see changes. He says:
"The Government will wish to see changes in Articles 14(1)
and 18(1). Article 14(1) sets out the rights of legal advisers
and states that legal representatives should be allowed access
to any information held on the applicant's file that may be considered
by the determining authorities. Unfortunately it is not always
possible to allow access to all information held on file in some
cases because it may not be disclosable in the public domain,
e.g. asylum applications from individuals who may be a threat
to national security.
"Article 18(1) states that applicants whose claims are being
considered under the terms of the Dublin Convention may be detained
until their transfer to the responsible Member State can be effected.
This period of detention may not, however, exceed one month. This
time limit does not seem reasonable given that the proposed Dublin
II Regulation allows one month for a Member State to take charge
of a request and a further 6 months in which the transfer is to
be effected. The Government expects that other Member States will
share our concerns and that this article may change during the
course of the negotiations."
8.11 The Minister comments on the amended proposal in
general as follows:
"It could be implied that this is a somewhat watered down
version of the original draft Directive that fails to set adequate
minimum standards in asylum procedures. The Government does not
share this view and is pleased that the Commission has put such
an effort into breaking the previous stalemate by producing an
amended draft proposal. It must be remembered that asylum procedures
vary between Member States, which does not make it an easy task
to produce a text acceptable to all delegations and therefore
obstruct negotiations on the measures proposed under Article 63
TEC. The Government is satisfied that, although there have been
changes to the original Procedures Directive, it does not constitute
the lowest common denominator of asylum procedures currently operating
in Member States."
8.12 Finally, the Minister tells us that the Government
does not expect the measure to be adopted during the current Danish
8.13 Following our preliminary consideration, we are
less confident than the Minister about the changes to this draft
Directive, many of which seem to dilute the original provisions.
We are, therefore, glad to learn that the proposal will be subject
to consultation with NGOs, and ask to be informed of their views,
and of the progress of negotiations.
8.14 With regard to the Government's concerns about
the requirement to provide applicants with information on procedure
in a language that they understand, we are not clear what the
Minister's comment means. Is he saying that the UK will be able
to meet the provisions in part, and therefore will not seek to
8.15 We clear document (a), since it has now been
superseded. We shall keep document (b) under scrutiny until we
have the Minister's response.
standards in asylum procedures: 11th
Report from the Select Committee on the European Union, HLPaper
59 (2000-01). Back
or return to a country where the life or freedom of the individual
would be threatened. Back
permission for the applicant to remain in the Member State concerned
during the appeals procedure. Back
L 254/1. Back