Select Committee on European Scrutiny Twentieth Report



Commission working document — the relationship between safeguarding
internal security and complying with international protection obligations and

Legal base:
Document originated:5 December 2001
Forwarded to the Council: 7 December 2001
Deposited in Parliament: 17 January 2002
Department:Home Office
Basis of consideration: EM of 30 January 2002
Previous Committee Report: None
To be discussed in Council: None planned
Committee's assessment:Politically important
Committee's decision:Not cleared; further information requested


  10.1  This working document is the Commission's direct response to the request[28] by the Extraordinary Justice and Home Affairs Council Meeting of 20 September 2001 that the Commission should examine urgently the relationship between safeguarding internal security and complying with international protection obligations and instruments.

The document

  10.2  The Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) helpfully summarises the document, as follows:

    "The working document analyses existing legal mechanisms for excluding persons from international protection, the legal remedies open to Member States, the possibilities of action at a European level and the adequacy of internal security related provisions in existing and proposed EC legislation. The overriding premise is that it is necessary to find an appropriate balance between national security and the principle of refugee protection.

Chapter 1

    "This chapter summarises existing mechanisms for excluding undeserving applicants from refugee status. It notes that terrorists can be excluded from the refugee status under article 1(F)[29] of the Geneva Convention and draws attention to ongoing European level efforts in this area, such as the Proposal for a Council Framework Decision on Combating Terrorism.[30] It also highlights the exception to the principle of non-refoulement provided by article 33(2)[31] of the Geneva Convention and recommends that Member States make full use of both it and article 1(F).

    "In terms of the asylum procedure, the document argues that in order to be excluded applications for asylum should first enter the asylum procedure, even if they are to be subsequently fast-tracked or 'frozen'. Any such 'freezing' would require amendments to the Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status.[32]

Chapter 2

    "This chapter examines the legal options for dealing with those persons who have been excluded from a form of international protection. It looks at the options for criminal prosecution and the barriers to their removal or deportation. It highlights in particular the problem caused by the interpretation by the European Court of Human Rights of article 3 of the European Convention on Human Rights (ECHR)[33].

    "It also raises the question of the legal status of persons excluded a protection status but who remain on the territory of a Member State and notes the existing discrepancies in Member State practice. The decision by the UK to temporarily suspend its obligations under article 5 ECHR[34] in order to detain persons who are judged to be a security risk but who are not currently removable is also noted.

Chapter 3

    "This chapter summarises the two-stage approach being adopted by Member States to create a Common European Asylum System. It draws attention to the relevant Commission Communications and the recent recommendation for the use of an open co-ordination method in the asylum field.

Chapter 4

    "This chapter summarises existing and proposed EC legislation in the immigration and asylum fields and their relation to security. It concludes that they are largely compatible with the aim of denying the rights and benefits included in them to persons who are deemed to be a risk to national security. However, the Commission also suggests that the various measures be re-examined in the light of recent events and also proposes minor additions to several of the proposed immigration and asylum Directives."

The Government's view

  10.3  The Minister begins with a general comment about the document, saying

    "The Commission working document sets out to review relevant current and proposed legislation and practice in order to highlight key areas of concern. It is a swift reaction to conclusion 29 that identifies many questions and offers some constructive suggestions but is limited in its attempts to reach any comprehensive conclusions. The Government considers it should be viewed as a valuable summary of the area in question and as a helpful impetus to debate in what will be an ongoing process, rather than a solution to the problem in itself."

  10.4  She continues:

    "The Government welcomes the Commission's response to conclusion 29 of the Extraordinary Justice and Home Affairs Council Meeting of 20th September 2001 and is largely supportive of the suggestions that it makes. As the issues raised appear in a Commission working document they have no direct implications for policy because they require no changes to existing or proposed UK legislation or practice. However, there are some potential indirect policy implications which merit comment.

    "The Government supports the proposal for European guidelines on the use of exclusion clauses and the idea of information exchange mechanisms to help ensure all Member States are making full and similar use of them. The suggestion for a common list of 'Refugee Convention excluded persons' is also considered to be worth exploring further.

    "The Government agrees that the lack of European harmonisation in terms of the status of those persons who are excluded from a protection status but who cannot be removed is a cause for concern. It recognises that differences in Member State practice in this area is a potential cause for unwarranted secondary movement between Member States and would support greater European co-operation in this area in the interests of promoting a more level playing field.

    "The Commission working document suggests that amendments could be made to the proposed Directives on asylum procedures, qualification as a refugee and reception conditions in order to strengthen further their capacity to exclude from their scope persons who present a security risk or who do not deserve protection. The Government will wish to examine very carefully the exact text put to the Asylum Working Groups but in principle is supportive of such an initiative."

  10.5  The Minister then identifies some key areas of concern. She tells us:

    "The Government is supportive of the recommendation that criminal proceedings, internally or in terms of an extradition process, should take precedence over the conducting of an asylum procedure. However, the document argues for the initial inclusion in the asylum procedure of potentially excludable cases in the interests both of complying with the Geneva Convention and from a practical security perspective. Our recent emergency Anti-terrorism, Crime and Security Act allows for asylum applications to be refused solely on the grounds that they stand to be excluded from the Geneva Convention under its articles 1(F) or 33(2). We will need to make every effort to ensure that amendments to proposed European asylum legislation are able to accommodate this position.

    "The Government welcomes the inclusion of a discussion on the difficulties posed to national security by the interpretation of Article 3 ECHR. It recognises that returning anyone to face death or torture is unacceptable but notes the Commission's apparent hope that future judgements by the European Court of Human Rights may allow for a greater balance between individual protection needs and the security needs of a state. The government will continue to play an active role in the EU to explore how this issue of balance can be taken forward."


  10.6  We recognise that this is simply a working document. However, the Minister suggests that it will be used as "a helpful impetus to debate". For this reason, and because it raises some fundamental issues, we consider that it merits a substantive report to the House.

  10.7  The Minister describes the document as "a valuable summary of the area in question". We agree that it sets out the situation clearly, revealing the inevitable tension between safeguarding internal security and honouring international protection commitments. We are less happy with what appears to be an underlying assumption that the balance between the two positions needs redressing in favour of internal security. While we would not go as far as Statewatch in stating that the paper "displays flagrant disregard for basic human rights obligations"[35], we detect a wish to "find a way round" some of the Articles of the European Convention on Human Rights (ECHR).

  10.8  In particular, we have concerns about the Commission's suggestion that there might be a "balancing act" between individual protection needs and the security interests of a state in relation to the prohibition in Article 3 ECHR against torture or inhuman or degrading treatment or punishment. We recall that Article 15 ECHR expressly provides that no derogation may be made from Article 3 ECHR, even in time of war or other public emergency threatening the life of the nation. Moreover, Article 3 is expressed in absolute terms and does not allow for any exceptions or qualifications. We therefore see no proper basis under the ECHR for such a "balancing act" as suggested by the Commission. We ask the Minister if she shares the view expressed by the Commission, and if so, to explain her reasons for doing so.

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

28  Conclusion 29. Back

29  Article 1(F) states that refugee status can not be granted to any person with respect to whom "there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations." Back

30  (22925) 12647/01; see HC 152-x (2001-02), paragraph 4 ( 12 December 2001).  Back

31  This Article excludes from non-refoulement ( the prohibition of expulsion or return to a country where the life or freedom of the individual would be threatened) "a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country". Back

32  (22885) 13620/01; see HC 152-xiv (2001-02), paragraph 1 (23 January 2002). Back

33  Article 3 ECHR provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. It does not admit of exceptions, and may not be derogated from. Article 3 ECHR also applies to the extradition or expulsion of a person who would face a real risk of exposure to inhuman or degrading treatment in the receiving state cf Soering v UK, Chahal v UKBack

34  The UK is relying on Article 15 ECHR which permits a derogation from Article 5 (and from all other Articles of the ECHR except Articles 2, 3, 4(1) and 7) 'in time of war or other public emergency threatening the life of the nation'. See the Schedule to the Human Rights Act 1988 (Designated Derogation) Order 2001, SI 2001/3644. Back

35  Statewatch analysis: no 10: Critique of the European Commission's paper on asylum, protection and internal security. Back

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