Select Committee on European Scrutiny Twenty-Second Report




COM(01) 510

Draft 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:Articles 63(1)(c), 63(2)(a) and 63(3)(a) EC; consultation; unanimity
Deposited in Parliament:19 November 2001
Department:Home Office
Basis of consideration:Minister's letter of 11 February 2002
Previous Committee Report:HC 152-xiv (2001-02), paragraph 1(23 January 2002)
To be discussed in Council:No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested


  7.1  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.[15] The present proposal, which we first considered on 23 January 2002, sets out rules for determining which applicants for international protection qualify for refugee status under the 1951 Geneva Convention[16] and which applicants 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.

  7.2  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.[17] As we noted on 23 January, 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. 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.

  7.3  When we considered the proposal on 23 January, we agreed with the Minister in welcoming the setting of minimum standards by which the qualification for refugee and subsidiary protection status was to be determined by the Member States. We nevertheless put a number of questions to the Minister, to which she has replied in her letter of 11 February.

The Minister's letter

  7.4  In her letter of 11 February the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) confirms that the UK opted in to negotiation of this measure on 28 January. In response to our question on the extent of any consultation with the United Nations High Commissioner for Refugees and with relevant non-governmental bodies, the Minister comments as follows:

"I agree [that] it is important that the United Nations High Commissioner for Refugees (UNHCR) and relevant non-governmental bodies have the opportunity to share their views on the implications of the whole package of asylum measures under consideration by the Council of the European Union. My officials have regular meetings to discuss European developments in the immigration and asylum field with a selection of non-governmental bodies. The last such meeting was on 24 January 2002. The prevailing view amongst non-governmental bodies seems to be that the package of proposals offers an adequate starting point for a common European asylum system. However, there is concern at the slow rate of progress in negotiations and a fear that the proposals will be diluted in order to reach agreement. The Government is doing all it can to facilitate the swift adoption of the proposed asylum measures and remains committed to securing a package of minimum standards that are also meaningful ones.

"I understand that the Commission consulted the UNHCR and various non-governmental bodies during the drafting of its asylum proposals and that the UNHCR's views were held to be particularly important with regard to the refugee qualification Directive. In November last year the UNHCR submitted to the Council of the European Union its observations on the Commission's proposal for a Directive on qualification as a refugee (CN 14109/01, Asile 54). In it, the UNHCR gave a general welcome to the proposal, judging it to be an adequate basis for discussion of the relevant issues and an important step in the process of building a common European asylum system. I consider the criticisms raised by the UNHCR in their observations to be relatively minor ones but nonetheless expect them to help inform debate during negotiations at the asylum work group."

  7.5  We noted that the chosen legal basis for the Commission proposal is Articles 63(1)(c), 63(2)(a) and 63(3)(a) EC[18]. In her Explanatory Memorandum of 4 December 2001, the Minister had herself drawn attention to the 'arguable lack of an explicit legal basis' for the inclusion in the proposal of rules setting out the content of the rights attaching to refugee and subsidiary protection status (as opposed to rules on the qualification of persons as refugees). We therefore invited the Minister to explain this point more fully.

  7.6  The Minister comments as follows:

"The Explanatory Memorandum simply intended to draw attention to the potential ambiguity of Article 63(1)(c) TEC. This states that Member States should adopt 'minimum standards with respect to the qualification of third country nationals as refugees'. The text of this paragraph, particularly in other language versions such as French[19], can be read as limiting the scope of the obligation to laying down the preconditions for qualifying as a refugee rather than extending to the rights and benefits attached to any status granted.

"However, it is arguable that Article 63(1)(c) is referring to the conditions that need to be established before a status is granted and it is inherent in any status that it must imply rights and obligations to avoid being simply an empty shell. It is also clear from Tampere conclusion 14, which refers to the 'recognition and content' of refugee status and from other asylum related Commission proposals such as the Reception Conditions Directive, that there is a political acceptance of the need to define the rights and benefits associated with refugee status. There are also grounds for using Article 63(3) as justification for including the content of refugee status because this paragraph provides for laying down rules on conditions of entry and residence, which logically includes those persons recognised as refugees.

"I am satisfied that the Commission was entirely justified in taking the view that it has and fully support the inclusion of the content of refugee status in this instrument. I believe the line being taken is the correct one and do not expect there to be an affect on competence. There are no grounds for believing that the Commission's interpretation will be challenged but it is important that we are all aware of the potential weaknesses in the wording of Article 63 TEC."

  7.7  We were concerned about the provisions of Article 10, which permits Member States to examine whether the well-founded fear of persecution or of suffering serious and unjustified harm is confined to only a part of a third country, so that a Member State could find it reasonable to return the person to another part of that country. In particular, we were concerned that Article 10(1) only provided that there should be a 'strong presumption' against making such a finding where the agent of persecution is, or is associated with, the national government. It seemed to us that this provision gave inadequate protection to the refugee and that there was no proper case for returning a person to a territory where the national government was responsible for his persecution. We were also concerned that the vagueness of these provisions would introduce new areas of divergence between the practices of Member States.

  7.8  The Minister seeks to deal with our concerns about the 'strong presumption' in Article 10(1) as follows:

"In Article 10(1) the 'strong presumption' is based on the grounds that a national government is able [to] and willing to act throughout its territory. However, there may be cases where a significant part of a country, for example Northern Iraq, is not under the control of the national government. In such cases an individual with a well founded fear of the government could potentially be returned in relative safety to live under the protection of a stable state-like authority or international organisation of a type described in Article 9(3). I am satisfied that Article 10(2) and 9(3) lay down adequate minimum safeguards for the protection of individuals who would otherwise stand to be returned under Article 10(1)."

  7.9  On the question of the vagueness of Article 10, the Minister comments as follows:

"Significant divergence in Member States' practice already exists. I believe that setting out common rules, even broadly defined as they are in Article 10, can only reduce this divergence. It is also important, I think, to note that as a Directive, this proposed piece of Community legislation is intended only to approximate rules and practice among Member States by laying down minimum standards, not create a single uniform system. A degree of flexibility is both necessary and desirable. It is the only way of securing agreement among Member States in this first stage of creating a common European asylum system and it allows Member States to exercise their own discretion when examining certain types of difficult cases that may be peculiar to them."


  7.10  We are grateful to the Minister for her full reply to the questions we raised. We note the consultation which has taken place with the United Nations High Commissioner for Refugees (UNHCR) and we infer from the Minister's reply that this will continue.

  7.11  We note the Minister's further explanation of the arguments relating to the legal base under Article 63(1)(c) EC for measures concerning the rights attaching to refugee status, as opposed to those concerning the conditions for qualifying as a refugee. We think the case for relying on Article 63(1)(c) EC is arguable at best, but we acknowledge the force of the Minister's argument for relying on Article 63(3).

  7.12  We remain concerned about the provisions of Article 10(1). The Minister is, of course, right to point out that the present proposal is intended only to approximate rules and practice between the Member States, and not to create a single uniform system. Nevertheless, we recall that it was the Minister herself who stated that "a close degree of harmonisation" was generally desirable in the asylum field in order to "reduce disparities between Member States and so reduce secondary migration".[20]

  7.13  In this regard, we think that there should be more than the "strong presumption" in Article 10(1) against the return of a person to another part of a country where the Government of that country is, or is associated with, the agent of persecution. We ask the Minister to explain how the provisions of Articles 9(3) and 10(2) lay down adequate minimum safeguards in such cases.

  7.14  We repeat our concern that the "strong presumption" in Article 10(1) provides insufficient protection to the refugee, and we ask the Minister if she agrees that there should be a rule prohibiting return in such cases unless the relevant part of the third country is under the control of a stable entity other than the Government which is, or is associated with, the agent of persecution.

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

15  '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

16   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

17  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) 19.12.2000). Back

18  Article 63(1) provides for the adoption by the Council of measures on asylum relating to the status of refugees within a number of specified areas, one of which is 63(1)(c)- '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'. Article 63(3)(a) provides for the adoption of measures on conditions of entry and residence, and standards on procedures for the issue of long term visas and residence permits. Back

19  This refers to 'normes minimales concernant les conditions que doivent remplir les ressortissants des pay tiers pour pouvoir prétendre au statut de réfugié'. It does indeed suggest that Article 63(1)(c) is concerned with the conditions for achieving refugee status, and not with the rights attaching to that status once it is achieved. Back

20  (22885) 13620/01; HC 152-xiv (2001-02), paragraph 1.22 (23 January 2002). Back

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