6. STATUS OF REFUGEES
(a)
(22885)
13620/01
COM(01) 510
(b)
(23919)
12620/02
—
(c)
(24022)
14643/02
—
|
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.
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.
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: | (b) 30 October 2002
(c) 27 November 2002
|
| Department: | Home Office
|
| Basis of consideration: | (b) and (c) EM of 27 November 2002
|
| Previous Committee Report: | (a) HC 152-xiv (2001-02), paragraph 1 (23 January 2002), HC 152-xxii (2001-02), paragraph 7 (20 March 2002), HC 152-xxviii (2001-02), paragraph 4 (8 May 2002)
|
| To be discussed in Council: | No date set
|
| Committee's assessment: | Legally and politically important
|
| Committee's decision: | (a) and (b) Cleared
(c) Not cleared
|
Background
6.1 We considered on 23 January, 20 March 2002 and 8
May a previous version of this proposal (document (a)) which sets
out rules for determining which applicants for international protection
qualify for refugee status under the 1951 Geneva Convention[21]
and which applicants qualify for subsidiary forms of protection.[22]
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.
6.2 We noted that all Member States are party to the
1951 Geneva Convention and the 1967 New York Protocol, but that
there have been divergent interpretations of the Convention and
Protocol, notably in relation to granting refugee status where
the fear of persecution arises in relation to the acts of persons
other than the State where the State of origin is unable or unwilling
to provide effective protection.[23]
6.3 In our consideration of the earlier version, we welcomed
the setting of minimum standards by which the qualification for
refugee and subsidiary protection status was to be determined
by the Member States, but we remained concerned about the provisions
permitting Member States to examine whether the well-founded fear
of persecution 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 third country.
6.4 We were concerned that there was only a 'strong presumption'
against making a finding that there was no well-founded fear where
the agent of persecution is, or is associated with, the national
government. It seemed to us that this provision gave inadequate
protection and that there should be a clear rule to prohibit return
in such circumstances, such a rule being not only right in principle
but also serving better the interests of preventing secondary
migration. We held document (a) under scrutiny, pending deposit
of a revised version.
The revised proposals
6.5 Document (b) is a revised version of the proposal
as it stood following consideration by the Asylum Working Party
of the Council on 3-4 and 16-17 October. Document (c) is the current
version, reflecting consideration by COREPER on 21 November. Attention
has been concentrated on those parts of the proposal dealing with
scope and definitions, the assessment of applications for international
protection and the qualification for being a refugee or for receiving
subsidiary protection. There has been no detailed discussion to
date of the provisions relating to rights of residence, and access
to employment, education, social welfare and health and psychological
care and which are now contained in Articles 20 to 39.
6.6 Article 1 of document (c) states that the purpose
of the Directive is to lay down minimum standards for the qualification
of third country nationals as refugees or as persons who otherwise
need international protection and for the content of the protection
granted. Article 2 contains definitions which mirror those in
the 1951 Geneva Convention and the Protocol of 1967. Article 4
permits Member States to introduce or retain more favourable standards
for determining refugee or subsidiary protection status.
6.7 Article 7 deals with the way in which Member States
are to assess the facts and circumstances on which claims to refugee
or subsidiary protection status are to be assessed. Article 8
deals with international protection need arising sur place,
i.e. the case where a refugee claims his status on the basis of
events which have taken place since he left his country of origin.
The Article provides that a well-founded fear of being persecuted
or a real risk of suffering serious harm may be based on activities
which have been engaged in by the applicant since he left his
country of origin, in particular where it is established that
those activities constitute the 'expression and continuation of
convictions or orientations held' in the country of origin.
6.8 Article 9 provides that the persons, in respect of
whom a fear of persecution or of suffering serious harm may be
well-founded, include the State, parties or organisations controlling
the State or a substantial part of its territory, or non-State
actors if it can be demonstrated that the State, or parties or
organisations controlling the State, are unable or unwilling to
provide protection (as defined in Article 9A) against persecution
or serious harm.
6.9 Article 9A establishes that protection[24]
may be provided by the State, or parties or organisations, including
international organisations, controlling the State or a substantial
part of its territory. Article 9A(2) provides that such protection
is 'generally provided' when the State, party or organisation
takes 'reasonable steps to prevent the persecution or suffering
of serious harm inter alia by operating an effective legal
system for the detection, prosecution and punishment of acts constituting
persecution or serious harm, and the applicant has access to such
protection'.
6.10 Article 10 deals with what is described as 'internal
protection', i.e. the case where sufficient protection can be
provided to the applicant in another part of his country of origin.
Article 10(1) provides that Member States may determine that an
applicant is not in need of international protection if 'in a
part of the country of origin there is no well-founded fear of
being persecuted or no real risk of suffering serious harm; and
the applicant can reasonably be expected to stay in that part
of the country'[25].
Article 10(2) provides that in examining a case under Article
10(2) Member States are to have regard to the general circumstances
prevailing in that part of the country and to the personal circumstances
of the applicant at the time of taking their decision.
6.11 Article 11(1)(a) provides that acts which are considered
to amount to persecution under Article 1A of the Geneva Convention
must be sufficiently serious by their nature or repetition to
constitute 'a severe violation of basic human rights', in particular
those rights from which a derogation cannot be made under Article
15(2) of the European Convention on Human Rights[26],
or they must be an accumulation of various measures, including
violations of human rights, which is 'sufficiently severe as to
affect an individual in a similar manner' as is mentioned in Article
11 (1)(a). Article 11(2) provides that acts of persecution may
inter alia take the form of physical or mental violence,
discriminatory legal, police or administrative measures, disproportionate
or discriminatory punishment, prosecution or punishment for refusal
to perform military service in a conflict where 'performing military
service would include crimes', or 'acts of a gender-specific or
child-specific nature'.[27]
6.12 Article 12 sets out a number of elements which Member
States are to take into account when assessing, in relation to
the reasons for persecution, the concepts of race, religion, nationality,
membership of a social group and political opinion. Article 13
sets out a number of circumstances in which a third country national
or stateless person shall cease to be a refugee. These include
the voluntary acceptance by him of the protection of his country
of nationality, the acquisition of a new nationality, or the ending
of the circumstances which caused him to be recognised as a refugee.
6.13 Article 14 sets out the circumstances in which a
person may be excluded from refugee status. Article 14(1) accordingly
excludes from refugee status those persons who fall within Article
1D of the Geneva Convention (persons under the protection of the
UN), or who are recognised in the country of residence as having
rights equivalent to those of that country's nationals[28].
Article 14(2) excludes from refugee status any person who has
committed a war crime or crime against humanity, or a serious
non-political offence outside the country of refuge and prior
to his admission as a refugee, or an act contrary to the purposes
and principles of the United Nations[29].
6.14 Additionally, Articles 14(3) and (4) set out further
grounds for refusing refugee status. Article 14(3) relates to
persons who instigate or otherwise participate in the commission
of the crimes referred to in Article 14(2).
6.15 Articles 14A and 14B deal with the grant and revocation
of refugee status respectively. Article 14A requires Member States
to grant refugee status to any person who qualifies under Articles
7 to 14 of the Directive. Article 14B permits Member States to
exclude a person from refugee status if there are reasonable grounds
for regarding the person as a danger to the security of the country
in which he resides, or if the person, having been convicted of
a 'particular serious crime',[30]
constitutes a danger to the community of that country[31].
6.16 Articles 15 to 17 set out the qualifications for
subsidiary protection, together with rules for its cessation and
revocation and for excluding persons from this status. Article
15 defines serious harm in terms which reflect the provisions
of Article 3 of the European Convention on Human Rights[32].
Article 16 provides for the case where, due to a change of circumstances,
subsidiary protection is no longer required. Article 17 provides
for a person to be excluded from subsidiary protection where there
are 'serious reasons' for considering that the person has committed
a war crime, or a crime against humanity, a serious crime, an
act contrary to the purposes and principles of the UN, or that
he constitutes a danger to the community or the security of the
country where he resides. Article 17(3) permits Member States
to exclude a person from protection if, before his admission,
he has committed a crime which would be punishable by imprisonment
in the Member State concerned, and if the person left his country
of origin solely in order to avoid criminal sanctions.
6.17 Articles 17A and 17B provide for the grant and revocation
of subsidiary protection status. These grounds are similar to
those of Article 14B (1) to (3).
6.18 Article 18 introduces a chapter (Chapter VII) dealing
with the content of international protection. The Article provides
that the rules laid down in Chapter VII are without prejudice
to the rights laid down in the Geneva Convention[33]
and that, within the limits set out by that Convention, Member
States may reduce the benefits of Chapter VII in the case of a
refugee whose status has been obtained on the basis of activities
engaged in for the sole or main purpose of creating the conditions
for being recognised as a refugee or as a person eligible for
subsidiary protection.
6.19 Article 19 requires Member States to respect the
principle of 'non-refoulement'[34]
in accordance with their international obligations. Article 19(2)
provides for cases where a person may be expelled or returned,
but these exceptions only apply where not prohibited by the international
obligations of Member States[35].
The Government's view
6.20 In his Explanatory Memorandum of 27 November the
Parliamentary Under-Secretary of State at the Home Office (Lord
Filkin) explains that the Government welcomes the Commission's
attempt 'to set meaningful minimum standards for qualification
for refugee status and subsidiary protection status'. The Minister
comments that a close degree of harmonisation is generally desirable
in the asylum field in order to reduce disparities between Member
States and so reduce secondary migration. The Minister adds that
the interpretations of the Geneva Convention relating to refugees
and compliance with international human rights obligations 'are
already of a high standard and fully in accordance with the guidelines
laid down by the United Nations High Commissioner for Refugees'
and that for this reason, the Directive in its current form would
have little impact on the numbers granted protection.
6.21 The Minister explains further that the Government
welcomes the amended texts of the Directive, that work has been
continuing on the first part of the text (Articles 1-19) and that
these Articles would be put to the JHA Council for consideration
by Ministers.
6.22 The Minister makes the following detailed comments
on the current text:
"The Government's concerns have been addressed in relation
to international protection needs arising sur place. The
text now reflects the Government's view that activities engaged
in for the sole or main purpose of creating the necessary conditions
for being recognised as a refugee or a person eligible for subsidiary
protection, though clearly damaging to credibility, have to be
judged on the effect they have and whether or not they place the
applicant at risk.
"Article 9 and '9A' now deal with sources of harm and protection.
They retain the principle that the main rationale behind the Geneva
Convention and regimes of subsidiary protection is that everyone
is entitled to be free from persecution or other forms of serious
harm, and in the face of such harm should be able to access effective
State protection. If persecution or other serious unjustified
harm stems from the State then an applicant's fear of it is well
founded because, de facto, there is no viable avenue of protection
available in the country of origin. If it stems from non-state
agents then any such fear is only well founded if the State is
unwilling or effectively unable to provide protection
against such a risk of harm.
"The Government strongly supports this interpretation, which
reflects the case law and current practice of the UK, as well
as the vast majority of other Member States and the international
community. The Government believes that the UK's interest would
be best served by this interpretation because it is a key factor
in establishing a level playing field for asylum applications
and will help ensure the effectiveness of the Dublin Convention
and its successor. Most Member States are now in step with this
interpretation.
"On the exclusion and cessation Articles, the Government's
view is that the Directive should follow very closely the cessation
and exclusion clauses of the Geneva Convention designed to ensure
that only those deserving and in need of protection are granted
it. The Government does not support the view, held by some Member
States that exclusion from refugee status can include language
from Article 33(2) of the Geneva Convention which relates to exceptions
to the non-refoulement principle. The Government supports a tough
line on excluding those who have committed serious crimes and
on ensuring that those who have done so but cannot be removed
do not benefit from their situation. However, we believe that
using non refoulement criteria to reinforce this would not be
legally sustainable and has no practical benefit. Article 19 of
the draft Directive allows Member States to take away the rights
and benefits normally attached to refugee status.
"The concept of 'serious harm' was discussed at the JHA Council
in October. Member States have proposed that the term "unjustified"
is now deleted. Although the Government considers that there are
circumstances where harm could be 'justified' — a legitimate
prison sentence for example — we are happy to agree to a
resolution to this contentious issue. The Presidency earlier proposed
that the definition of serious harm include a threat to physical
integrity or of arbitrary arrest or detention. UK concerns here
were that this definition should go no further than currently
required by our international obligations. The latest text is
satisfactory in this respect."
Conclusion
6.23 We note that the Government generally welcomes
the revised text of the proposal, but that it has raised a number
of questions. We also note that discussion is continuing and that
much of the text has not yet been considered in the Council. We
note the Minister's remarks about the Justice and Home Affairs
Council and ask him if he has any comment on the report from the
Danish Presidency of 28 November that the Council 'reached political
agreement on a great number of Articles' regarding this proposal,
and in particular if the UK was party to this agreement.
6.24 We share the Minister's view that the provisions
on exclusion from refugee status should not include the language
of Article 33(2) dealing with the different question of 'non-refoulement'.
We share the views of those Member States which consider that
to include additional grounds for refusing refugee status (in
Article 14) would be incompatible with the Geneva Convention.
We ask the Minister if he will press for these provisions to be
deleted from the text.
6.25 We note the Minister's comment that there are
circumstances where 'harm' can be 'justified', as in the case
of a legitimate prison sentence. We do not accept this view. In
our opinion, the word 'harm' should only be used in legislation
to denote consequences which are wrongful, and therefore incapable
of justification. The Minister's usage seems to us to be likely
to lead to dangerous ambiguity.
6.26 In our earlier consideration of this matter,
we were concerned about the possibility of the return of refugees
to countries where the government of that country was either the
agent of persecution or was associated with such an agent. We
ask the Minister for an account of how this question is dealt
with in the revised version.
6.27 We shall hold the current version (document (c))
under scrutiny pending the Minister's reply. We clear documents
(a) and (b) on the grounds that they are superseded.
21 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
22 '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
23 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
24 i.e.
protection sufficient to cause a fear of persecution or of serious
harm to be other than well-founded. Back
25 The
provision no longer refers to a 'strong presumption' against return
where the agent of persecution is the national government, or
a person associated with the national government. Back
26 i.e.
Article 2 (right to life), Article 3 (torture or inhuman or degrading
treatment or punishment), Article 4(1)(slavery or servitude) and
Article 7 (retrospective criminal offences). Back
27 It
is not clear what this achieves which is not already achieved
by the references to discrimination. Back
28 Cf
Article 1E of the 1951 Geneva Convention. Back
29 This
appears to re-state the substance of Article 1F of the Geneva
Convention. Back
30 This
is not further defined. The expression seems ambiguous, since
all crimes are 'particular', and it is not clear if a particularly
serious crime is required, or what this would mean. Article 33(2)
of the Geneva Convention speaks of a 'particularly serious crime'. Back
31 These
exclusions do not appear to have any basis in Article 1 of the
Geneva Convention. They correspond to the provisions of Article
33 which prohibits expulsion or return ('refoulement'), but this
Article is not concerned with the grant of refugee status. Back
32 This
provides that 'no one shall be subjected to torture or to inhuman
or degrading treatment or punishment'. Back
33 It
is not clear why the whole of the Directive is not expressed to
be without prejudice to the Geneva Convention. Back
34 i.e.
the principle in Article 33 of the Geneva Convention that a refugee
may not be expelled or returned to his country of origin where
his life or his freedom would be threatened on account of his
race, religion, nationality, membership of a particular social
group or political opinion. Back
35 The
exceptions appear to mirror those of Article 33(2) of the Geneva
Convention in any event. Back
| 
