Select Committee on European Scrutiny Fourth Report


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


 
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