Select Committee on European Scrutiny Twenty-Eighth 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


Home Office

Basis of consideration:

Minister's letter of 16 April 2002

Previous Committee Report:

HC 152-xiv (2001-02), paragraph 1(23 January 2002), HC 152-xxii (2001-02), paragraph 7 (20 March 2002)

To be discussed in Council:

No date set

Committee's assessment:

Legally and politically important

Committee's decision:

Not cleared




  4.1  The present proposal, which we considered on 23 January and 20 March 2002, sets out rules for determining which applicants for international protection qualify for refugee status under the 1951 Geneva Convention[7] and which applicants qualify for subsidiary forms of protection.[8] 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.

  4.2  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.[9]

  4.3  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. However, one of our concerns was Article 10, which contains provisions permitting 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. 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.

  4.4  In her reply of 11 February, the Minister explained that the 'strong presumption' provision was based on the grounds that a national government was able and willing to act throughout its territory, but that there might be cases where a significant part of a country was not under the control of the national government. In these latter cases, the Minister considered that 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. The Minister added that she was satisfied that Article 10(2) and 9(3) provided adequate minimum safeguards for the protection of individuals who otherwise stood to be returned under Article 10(1).

  4.5  We remained concerned about the provisions of Article 10(1), and asked the Minister to explain more fully how Articles 10(2) and 9(3) provided minimum safeguards. We also invited the Minister to agree that there should be a prohibition on return in these cases unless the relevant part of the third country was under the control of a stable entity other than the Government which was, or was associated with, the agent of persecution.

The Minister's reply

  4.6  In her letter of 16 April the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) addresses our concerns by explaining first that Article 10(1) provides that an asylum applicant may only be returned to a part of the country of origin in which there would be no well founded fear of being persecuted or of otherwise suffering serious unjustified harm. The Minister goes on to explain that any return to a part of a country of origin is subject to the same minimum standards as apply to all asylum applicants under Chapters II, III and IV of the Directive.

  4.7  The Minister further explains that, in addition to there being no well founded fear of persecution in the part of the country concerned, Article 10(2) requires a 'minimum social infrastructure and protection system' making it reasonable to send an applicant to that part of a country and that the applicant's 'particular circumstances and vulnerabilities' must be considered before removal. The Minister concludes that an applicant in this situation 'is more than adequately protected'.

  4.8  In relation to our concern about the relative weakness of the 'strong presumption' provision in Article 10(1), the Minister comments as follows:

"I understand your concern with the second paragraph of Article 10(1) but I am not persuaded that there is a need for an explicit rule prohibiting return in such cases or indeed that such a rule would in fact be helpful. In my opinion, this paragraph should be viewed not in isolation but in conjunction with the rest of the article and in the context of the standards and guarantees delivered by the text as a whole. Where a national government is in control of the whole of its territory I agree that it is difficult to imagine many situations where internal protection could be a viable alternative. However, my understanding of the inclusion and wording of Article 10(1) paragraph 2 is that it is primarily intended to highlight the fact that internal protection is most likely to be adequately accessible where the threat of persecution is posed by a non-state agent. Situations where persecution is feared at the hands of a national government but where internal protection may nonetheless be obtained are considered to be the exception rather than the norm.

"Such situations are not ruled out entirely because there are, or may be in the future, situations where the national government is in control of a large part of the territory but where another group controls a significant territory of their own and is able to provide effective protection there. In this respect, I think that Article 10(1) could be improved by making a specific reference to Article 9(3) to make it clearer that where protection can only be provided by a non-governmental actor this protection should be provided by a body of weight comparable to that of a national government.

"Where the risk posed by agents associated with the government varies significantly depending on the part of the country, return to one part of the country may still be possible. Although such cases are likely to be rare I see no merit in explicitly ruling them out when the guarantees for asylum seekers in this Directive are already sufficiently high to prevent genuine refugees from being returned to a place where their safety would be at risk."

  4.9  The Minister adds that the Government has its own, relatively minor, concern with Article 10(1) in that it requires a well founded fear of persecution to be established before considering whether protection is suitable or available in another part of the country. The Minister explains that this differs from United Kingdom practice, which is to consider the viability of internal protection as part of the consideration of the whole asylum claim. The Minister adds that her officials will seek to ensure that the UK practice is reflected in the final text and that they will also propose that a more explicit link be made between Article 10(1) and Article 9(3).


  4.10  We thank the Minister for her helpful letter. We welcome the Minister's support for the proposal to make it clear that, in cases where the protection provided by a non-government actor is to be relied on, the protection must be provided by a body of weight comparable to that of a national government.

  4.11  Nevertheless, we remain concerned that the Directive leaves open the possibility of a refugee being returned to a country where the national government is, or is associated with, the agent of persecution and remains in control of the national territory. However unlikely such return may prove to be in practice, we believe that there should be a clear rule to prohibit return in such circumstances and that such a rule is not only right in principle but would better serve the interests of preventing secondary migration.

  4.12  We shall hold the document under scrutiny pending deposit of a revised text and Explanatory Memorandum.


7   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

8  '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

9  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

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