3. DETERMINING THE MEMBER STATE RESPONSIBLE
FOR EXAMINING AN ASYLUM APPLICATION
(a)
(22616)
11355/01
COM(01) 447
(b)
(23945)
13596/02
—
(c)
(23970)
13915/02
—
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Draft Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.
Draft Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the Member States by a third-country national.
Draft Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the Member States by a third-country national.
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| Legal base: | Article 63(1)(a) EC; consultation; unanimity
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| Document originated: | (b) 31 October 2002
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| (c) 8 November 2002 |
| Deposited in Parliament: |
(b) 6 November 2002
(c) 18 November 2002 |
| Department: | Home Office
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| Basis of consideration: |
Minister's letter of 30 October and EM of 15 November 2002
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| Previous Committee Report:
| (a) HC 152-xii (2001-02), paragraph 8 (16 January 2002)
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| To be discussed in Council:
| 28-29 November 2002 |
| Committee's assessment: | Politically important
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| Committee's decision: | (a) (b) Cleared
(c) Not cleared; further information requested
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Background
3.1 This draft Regulation (colloquially known as "Dublin
II") is intended to replace the Dublin Convention, which
provides a mechanism for determining the Member State responsible
for examining an asylum application lodged in one of the Member
States. The Dublin Convention entered into force on 1 September
1997, but following the entry into force of the Treaty of Amsterdam
and the establishment of a new Title IV of the EC Treaty concerned
with visas, asylum and immigration, it needs to be replaced with
a Title IV Community instrument; it is also generally accepted
that the Convention has had serious shortcomings.
3.2 When we first considered this proposal (in January),
we decided to hold it under scrutiny, given that negotiations
on some aspects were likely to be difficult and protracted. We
asked the then Minister to ensure that revised texts and Explanatory
Memoranda were deposited as promptly as possible so that we could
scrutinise them carefully before any substantial discussion in
Council.
3.3 Our sister Committee in the House of Lords undertook
an inquiry into the proposal. Its report Asylum Applications
— Who decides?[6]
was debated in the House of Lords on 1 November.
3.4 On 30 October, when it appeared that no new text
would be available before the draft Regulation was discussed at
the Justice and Home Affairs Council on 28-29 November, the Parliamentary
Under-Secretary of State for Race Equality, Community and European
and International Policy (Lord Filkin) sent a letter updating
us on the progress of negotiations. In the event, two later versions
of the proposals (documents (b) and (c)) were deposited which
necessitated a further Explanatory Memorandum. Since document
(c) is the most recent, we concentrate on that in our report.
The document and the Government's view
3.5 The basic structure and form of the draft Regulation
remains the same and the general principle is still that responsibility
for examining an asylum application lies with the Member State
which played the greatest part in the applicant's entry into or
residence on the territories of the Member States, subject to
exceptions designed to protect family unity. However, in his very
full Explanatory Memorandum, the Minister tells us:
"It has been clear throughout the negotiations to date that
some Member States would wish to see a very different draft proposal
to that originally made by the Commission, which was welcomed
in general terms by this Government last year. Strong opposition
has been voiced to tight time limits, lower standards of proof
and an order of criteria reflecting importance of policing external
borders or tackling illegal presence."
3.6 In an attempt to resolve the differences, the Presidency
has proposed a draft Statement to the Council Minutes in the form
of a Declaration which links the adoption of the Regulation with
overall EU initiatives to fight illegal immigration and enhance
external border control.
3.7 One of the significant concepts in the first version
of the proposal was that a Member State should take responsibility
for illegal residents it had allowed to remain on its territory.
The Minister reminds us that the Government attaches importance
to this concept of "illegal presence", continuing:
"We support this because it is important that Member States
take responsibility for those on its territory. It should be easy
for one Member State to transfer applicants to another when they
have been living illegally elsewhere. As we anticipated, this
provision was the subject of difficult negotiations."
Although two of the Articles which addressed "illegal presence"
have now been deleted, the concept has been retained, and consolidated
as a self-standing criterion.
3.8 There are, however, outstanding issues about time
limits. The latest text contains a proposal that responsibility
on the basis of illegal entry into the EU should cease after a
specified period of time. The UK would like this period to be
as long as possible, considering that a short time-limit would
be open to abuse. On the other hand, the UK would like as short
a qualifying time period as possible in relation to illegal presence.
It can accept the current suggestion of five months, although
it would prefer a shorter time-limit. Negotiations are likely
to involve a trade-off between these timescales.
3.9 The Minister tells us that there have been lengthy
discussions about the definitions of unaccompanied minors and
family members. With regard to the former, the latest version
of the text makes it clear that the term includes those left unaccompanied
after entry to the territory of the Member States, as well as
those arriving unaccompanied by a responsible adult. Further amendments
clarify the issue of the responsible State for considering asylum
applications for unaccompanied minors. The Government supports
these amendments.
3.10 With regard to"family members", the Minister
tells us that the definition is now limited to the nuclear family
in so far as this existed in the country of origin (although there
is a minority view against this definition). He continues:
"It refers now to the spouse or unmarried partner in a stable
relationship, the minor children of the couple on condition that
they are unmarried and dependent (without distinction to whether
they were born in or out of wedlock or adopted) or the parents
or guardian of an unmarried minor. The broad reference to the
other persons to whom an applicant is related has been deleted.
The Government has previously expressed concern about the broad
nature of the original definition and so we support moves to restrict
the scope. Experience is that many family cases can be difficult
to decide due to the absence or poor quality of documentation
or lack of consistency in verbal statements. Claimed distant relationships
can be more difficult to establish and in the case of placing
minors with claimed distant relatives this could bring additional
concerns."
In this respect, the Minister expresses some reservations about
a recent amendment concerning unification with a family member
already residing in a Member State as a refugee, since it appears
to move away from the agreed definition.
3.11 Turing to procedural time limits, the Minister
tells us:
"During negotiations it has become clear that having the
shortest conceivable time limit would not be practicable. The
current approach is that limits are set at realistic levels reflecting
administrative demands and also the need to avoid uncertainty
for applicants. There have been many divergent views expressed
on the different individual time limits. The Government feels
that the current position reflects an improvement and is a reasonable
compromise in order to reach agreement on the package of time
limits as a whole."
3.12 With regard to appeals, the latest version of the
draft Regulation states that an appeal "shall not suspend
the implementation of the transfer unless the courts or competent
bodies so decide on a case by case basis if national legislation
allows for this".
3.13 The Minister informs us about a number of other
amendments to the original text. Among these is the deletion of
specific reference to the draft Directive on minimum standards
for the asylum procedure in Member States,[7]
in order to remove any difficulties that could arise from making
such references before the draft Directive has been adopted or
implemented. The Government supports this approach.
3.14 The Minister reports that the Danish Presidency
has given this draft Regulation priority in order to meet the
timetable for its adoption (by December 2002) set by the Seville
European Council. He says that negotiations have substantially
progressed, given the need to find "creative solutions to
address fundamental sticking points", and considers that
the Seville deadline may not be unrealistic.
Conclusion
3.15 Once again, we are in the position of being asked
to consider a complex and controversial measure just before its
discussion in the Council. We accept that the Minister attempted
to remedy the situation by providing an updating letter, but the
production of two late texts necessitating a further Explanatory
Memorandum made earlier scrutiny impossible.
3.16 Nevertheless, we thank the Minister for a full
Explanatory Memorandum which highlights the main changes, and
the Government's approach. We broadly accept its view that the
amendments have addressed the many contentious issues in the measure
satisfactorily. However, we share our sister Committee's wish
for clarification about whether the Government will implement
Article 20 in such a way as to allow the possibility of an appeal
having suspensive effect.
3.17 We clear documents (a) and (b), since they have
now been superseded. We will, however, keep document (c) under
scrutiny until we know the Government's response to our sister
Committee's query.
6 19th
report of the Select Committee on the European Union, HL Paper
100 (2001-02). Back
7 (23593)
10279/02; see HC 152-xli (2001-02), paragraph 8 (6 November 2002). Back
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