21. DETERMINING THE MEMBER STATE RESPONSIBLE
FOR EXAMINING AN ASYLUM APPLICATION
(23970)
13915/02
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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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| Department: | Home Office
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| Basis of consideration: | Minister's letters of 29 November and 9 December 2002
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| Previous Committee Report: | HC 63-ii (2002-03), paragraph 3 (27 November 2002)
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| To be discussed in Council: | 19-20 December 2002
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| Committee's assessment: | Politically important
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| Committee's decision: | Cleared
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Background
21.1 When we considered this version of the draft Regulation
(colloquially known as "Dublin II") at our last meeting,
we broadly agreed with the Government that the amendments satisfactorily
addressed the many contentious issues in the proposal. However,
we shared the wish of our sister Committee in the Lords for clarification
about whether the Government would implement Article 20 in such
a way as to allow the possibility of an appeal having suspensive
effect (i.e. allowing the appellant to remain in the UK until
the appeal is heard). We therefore kept the document under scrutiny
and asked to know the Government's response to our sister Committee's
query.
The Minister's letters
21.2 The Parliamentary Under-Secretary of State at the
Home Office (Lord Filkin) has now written to us twice.
Letter of 29 November
21.3 In his letter of 29 November, the Minister tells
us the outcome of discussions about the draft Regulation at the
Justice and Home Affairs Council the day before. He says:
"The Presidency proposed a compromise package including a
12 month cutoff point for responsibility on the basis of illegal
entry ...coupled with a 5 month qualifying period for illegal
presence...This was discussed during a lengthy debate in plenary
session and over the course of several hours of bilateral meetings
leading, I believe, to the strong possibility of an agreement."
21.4 The Minister then tells us that the Presidency had
requested Member States to indicate in writing by 5 December whether
they were content with the proposal. Recognising that we would
not be able to consider the document again by that deadline, the
Minister hoped he might be able to get an extension to 13 December.
If the Presidency receives confirmation, it will convene a meeting
of Member States' officials to resolve the remaining details before
the measure is prepared for adoption, either at the Justice and
Home Affairs Council on 19-20 December, or at the first available
Council under the Greek Presidency.
21.5 In an Annex to the letter, the Minister sets out
his response to our query regarding the appeals procedure in Article
20 of the draft text. He says:
"The original Commission text for both Articles 20 and 21
provided that the appeal against the transfer decision should
not suspend the performance of the agreed transfer. In the course
of negotiations, however, it became clear that it would not be
possible to secure agreement by unanimity on the question of whether
appeals against Dublin transfer should have suspensive effect.
The Regulation therefore leaves it open to individual Member States
to decide whether the appeal should have suspensive effect. Ministers
did however, agree to add a recital making it clear that all Member
States should be regarded as safe for Dublin transfer purposes.
"In the UK, since the introduction of the Asylum and Immigration
Act 1996, our own statutory appeals against transfer decisions
to Member States identified as responsible under the Dublin Convention
have been non-suspensive. This approach was continued in the Immigration
and Asylum Act 1999 and remains the case in the Nationality, Immigration
and Asylum Act 2002. Since the introduction of the 1999 Act, it
has also been possible to raise human rights issues in connection
with transfers to safe third countries. Appeals provisions in
the Immigration and Asylum Act 1999 provided that in the case
of transfers to Member States under the Dublin Convention the
human rights appeal could be suspensive if the Secretary of State
had not certified that the human rights matter was 'manifestly
unfounded'. This provision has been retained in the Nationality,
Immigration and Asylum Act 2002, changed only in terms of drafting
with 'manifestly unfounded' being replaced by 'clearly unfounded'.
This is how we shall implement the regulation, if adopted, in
the UK.
"Challenges brought against decisions made under the 1999
or 2002 legislation in the domestic courts on judicial review
have in general upheld our approach on Dublin Convention transfers.
Judicial review itself has a suspensive effect on the transfer,
regardless of any human rights certification made under the powers
in the Act. The Strasbourg Court has approved the ability to seek
judicial review to be an effective remedy for the purposes of
Article 13, most recently in the Dublin Convention case of T.I.
versus the UK in March 2000."
Letter of 9 December
21.6 In his second letter, the Minister tells us:
"I spoke to Bertel Haarder, President of the JHA Council
on 4 December. I said that the UK Government welcomed the efforts
of the Presidency to achieve a consensus on the Regulation and
shared the Presidency's assessment that the compromise they had
tabled represented the only realistic prospect of securing that
objective. I made clear, however, that the Government could not
yet enter into political agreement because the proposal was still
under scrutiny in our Parliament. I explained that our Parliament
would not be able to consider the compromise proposal until 11
December and I undertook to give him a definitive answer no later
than 13 December. Bertel Haarder assured me that he respected
the role of national parliaments and that he appreciated the UK's
support for the Presidency's efforts. He therefore agreed to wait
for our definitive response on the timescale I proposed.
"As far as the position of other Member States is concerned,
none of them has raised objections to the Presidency's proposal
by today's deadline. My own assessment is that there is no prospect
of securing a better outcome than the compromise offer, which
improves the existing Dublin Convention rules in a number of respects,
in particular through the introduction of more rigorous time limits.
I very much hope that you will be able to look favourably at the
compromise when you meet on 11 December."
Conclusion
21.7 We thank the Minister for setting out the Government's
intentions with regard to the appeals procedure so clearly, and
for informing us so promptly about the Presidency compromise,
which appears to meet the Government's key concerns.
21.8 We are pleased that the Minister made it clear
that he could not enter into political agreement until the document
was cleared from scrutiny, and that the President of the Justice
and Home Affairs Council respects the role of national parliaments
and therefore agreed to extend the deadline for a definitive response.
21.9 Given that our question has been answered, we
are now content to clear the document.
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