3 Status of refugees
| (a)
(24022)
14643/02
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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.
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| (b)
(24278)
6725/03
ADD 1
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Draft Council Directive on minimum standards for the qualification and status of third country national and stateless persons as refugees or as persons who otherwise need international protection.
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| Legal base | Articles 63(1)(c), 63(2)(a) and 63(3)(a) EC; consultation; unanimity
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| Document originated | (b) 13 February 2003
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| Deposited in Parliament | (b) 18 February 2003
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| Department | Home Office |
| Basis of consideration | (a)Minister's letter of 17 January 2003
(b)EM of 14 March 2003
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| Previous Committee Report | (a)HC 63-iv (2002-03), paragraph 6 (11 December 2002)
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| To be discussed in Council | 8 May 2003
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
3.1 We considered on 23 January, 20 March, 8 May and 11 December
2002 a previous version of this proposal, which sets out rules
for determining which applicants for international protection
qualify for refugee status under the 1951 Geneva Convention[1]
and which applicants qualify for subsidiary forms of protection.[2]
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.
3.2 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.[3]
3.3 The Council working group has 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. Until recently, there appears to have been no detailed
discussion of the provisions relating to rights of residence,
and access to employment, education, social welfare and health
and psychological care. Provisions on these matters are now contained
in document (b), which sets out a revised version of Articles
18 to 39.
3.4 We welcomed the setting of minimum standards
for determining refugee and subsidiary protection status, but
we remained concerned about the provisions permitting Member States
to examine whether the well-founded fear of persecution was confined
to only a part of a third country, with the consequence that a
Member State could find it reasonable to return the person to
another part of that third country, even where the government
of that country was the agent of persecution or was associated
with such an agent. In this context, we were concerned that the
provision gave inadequate protection and that there should be
a clear rule to prohibit return in such circumstances.
3.5 In this context we noted that Article 9A
of document (a) provides that protection[4]
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'. We noted the Minister's explanation of these provisions,
given in his Explanatory Memorandum of 27 November 2002, namely
that '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'. We also noted that Article 10(1) provided 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'.[5]
3.6 We were concerned to note a report from the
Danish Presidency which appeared to suggest that political agreement
had been reached at the November JHA Council on a great number
of Articles, and we asked the Minister for his comment on that
report. We also asked the Minister for an account of how our concerns
had been met in relation to the return of a refugee to countries
where the government was, or was associated with, the agent of
persecution.
The Minister's reply
3.7 In his letter of 17 January 2003, the Parliamentary
Under-Secretary of State at the Home Office (Lord Filkin) addresses
both of these points. As to the first, the Minister confirms
that scrutiny reservations were maintained at the November Council
and that the Council had only a brief discussion of the first
19 Articles of the proposal, which was then remitted to the Council
Working Group for further discussion.
3.8 As to the second point, the Minister states
his belief that the proposal does not allow for the return of
a refugee to a country where the government of that country either
is the agent of persecution or is associated with such an agent.
The Minister refers to Articles 9, and 9A, and 10 of document
(a) and states that 'it is clear from these Articles that the
Directive does not permit a person to be returned where there
is no safe place in their country where they could stay'.
The revised provisions on the content of protection
3.9 Document (b) sets out the results of consideration
by the Council Working Group of the provisions of Articles 20
to 39 on the content of refugee and subsidiary protection status.
These provisions are to apply equally to refugees and persons
eligible for subsidiary protection, unless otherwise stated. Article
20 requires information to be supplied to the protected persons
on their rights and obligations. Article 21 is concerned with
residence permits and requires three year renewable permits to
be granted to refugees and their family members, once their status
as refugees has been determined. In the case of persons subject
to subsidiary protection, a one-year renewable permit must be
granted 'unless compelling reasons of national security or public
order[6] otherwise require'.
3.10 Article 22 is entitled 'Maintaining family
unity' and is concerned with the treatment of members of the protected
person's family. Family members[7]
are to be entitled to claim the benefits referred to in Articles
18 to 32, 'in accordance with national procedures and as far as
it is compatible with the personal legal status of the family
member'. This does not apply where the family member is or would
be excluded from refugee or subsidiary protection status. Additionally,
Member States may refuse, reduce or withdraw these benefits 'for
reasons of national security or public order'.
3.11 Article 23 requires Member States to issue
travel documents to refugees for travel outside their territory
'unless compelling reasons of national security or public order
otherwise require'. Similarly, travel documents are to be issued
to persons eligible for subsidiary protection to enable them to
travel 'at least when serious humanitarian reasons arise that
require their presence in another State'. This is again subject
to an exception where there are compelling reasons of national
security or public order.
3.12 Article 24 is concerned with access to employment.
It requires Member States to authorise refugees, and those entitled
to subsidiary protection, to engage in employment or self-employed
activities as soon as their status is determined. Article 24(2)
requires access to employment-related education, vocational training
and workplace experience to be offered on the same conditions
as apply to nationals. In the case of persons eligible for subsidiary
protection, such opportunities are to be made available under
conditions to be decided by the Member States. Article 24(3) provides
that Member States 'may give priority' to EU and EEA citizens
and to legally resident third-country nationals who receive unemployment
benefit. Such priority may be granted for a limited period, which
is presently fixed at one year.
3.13 Article 25 is concerned with access to education.
Member States are required to extend national treatment to all
minors granted refugee or subsidiary protection status. In the
case of adults, Member States are required to extend the same
access to education and training they extend to legally resident
third-country nationals. The same recognition is to be given to
foreign qualifications as currently applies to the recognition
of foreign qualifications held by nationals.
3.14 By virtue of Articles 26 and 27 Member States
are required to extend access to national treatment in relation
to social welfare, subsistence and health care. Article 28 makes
special provision in the case of unaccompanied minors, requiring
Member States to ensure their accommodation and representation.
Member States are required to take into account the views of the
child, and to keep siblings together as far as possible. Article
29 requires Member States to ensure that refugees and those eligible
for subsidiary protection have access to accommodation under conditions
equivalent to those enjoyed by third country nationals lawfully
resident in the national territory. Similarly, Article 30 requires
Member States to afford the same freedom of movement within the
national territory as is afforded to third-country nationals,
subject to any restrictions imposed by law such as those necessary
to protect national security or public order.
3.15 Article 31 permits Member States to provide
programmes for refugees and integration programmes for those eligible
for subsidiary protection. In both cases, the programmes are to
be those which each Member State considers appropriate. Article
32 permits Member States to provide assistance for repatriation
for persons who 'wish to repatriate'.[8]
3.16 Articles 33 and 34 are concerned with administrative
cooperation. Articles 36 to 39 are concerned with reports, transposition
and entry into force.[9]
The Government's view
3.17 In his Explanatory Memorandum of 14 March
the Parliamentary Under-Secretary of State at the Home Office
(Lord Filkin) welcomes the Commission's attempt to set meaningful
minimum standards for qualification for refugee status and for
subsidiary protection. 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 and that this Directive is only one element,
albeit an important one, in meeting this objective.
3.18 The Minister explains that the proposed
Directive seeks to balance the need for minimum standards against
the need to allow Member States an element of discretion to deal
with specific national circumstances. Accordingly, the Directive
does not require Member States to apply a detailed set of qualification
criteria, but sets out instead core framework principles which
are consistent with the Geneva Convention and international human
rights instruments. The Minister adds that the Government considers
that the proposal 'adequately sets out the minimum standards required
to determine who should qualify as a refugee and who should otherwise
qualify as a beneficiary of subsidiary protection and what rights
and benefits should be attached to their status'. The Minister
also considers that the proposed Directive would have a limited
impact on the numbers of applicants granted refugee status or
other forms of protection status, because the interpretation of
the Geneva Convention and compliance with international human
rights obligations by the UK is already of a high standard and
fully in accordance with the guidelines issued by the United Nations
High Commissioner for Refugees.
3.19 The Minister notes that there remain significant
reservations by some Member States on the first part of the text
(Articles 1 to 19). As for the second part (Articles 20-39), the
Minister makes the following more detailed comments:
"Member States support the idea that the Directive
should be 'terrorist proofed' and that where compelling reasons
of national security or public order require it they should not
be required to give effect to the provisions of the Directive.
For that reason an 'exclusion' paragraph has been inserted into
Article 22 so that any family member of a refugee or beneficiary
of subsidiary protection status would not receive the benefits
attached to that status if they would be excluded from the scope
of the Directive were they to apply.
"Member States agreed that the Article on long-term
residence status for refugees and beneficiaries of subsidiary
protection status should be deleted as that would be dealt with
under the proposed Council Directive covering that subject area.
"On Article 23 the UK argued for more flexibility
on travel documents for beneficiaries of subsidiary protection.
That was because as announced on 27 February, we will be making
changes as from 17 March to the circumstances in which we will
issue Certificates of Identity to those with the equivalent of
subsidiary protection in the UK. The Article now obliges Member
States to issue travel documents to beneficiaries of subsidiary
protection only when serious humanitarian reasons arise.
"Some Member States have called for restrictions
on access to employment for beneficiaries of subsidiary protection.
In the UK access to the labour market is given on the granting
of either refugee or subsidiary protection status. It has been
proposed that access may be delayed for beneficiaries of subsidiary
protection for up to one year and subject to certain conditions.
This is now reflected in the text. Member States have also deliberated
over whether there should be access to social welfare and health
care. In the UK access is granted on the same basis as UK nationals
to each status."
3.20 The Minister explains that Article 31 is
sufficiently flexible to allow Member States to adapt programmes
for the integration of persons eligible for subsidiary protection
so as to take account of the fact that such persons may spend
a comparatively short period of time in that Member State. The
Minister states that the terms of the Article will enable the
Government to provide appropriate programmes tailored to the needs
of beneficiaries of subsidiary protection and their families.
Conclusions
3.21 We are grateful to the
Minister for his letter and for his Explanatory Memorandum on the
latest version of this proposal. We note that a scrutiny reserve
has been maintained on the proposal, and we are grateful to the
Minister for making this clear. We also welcome the statement by
the Minister that, in his view, the proposal would not allow the
return of a refugee to a country where the government of that country
was either the agent of persecution or was associated with such
an agent.
3.22 Whilst we broadly agree
with the Minister's assessment of the proposal, we note that in
the significant aspect of access to employment, it will not produce
any close degree of harmonisation. We ask the Minister to explain,
in relation to Article 24, what is meant by giving 'priority' to
citizens of the EU and of the European Economic Area (EEA), and
if he will press for the Directive to provide for the same access
to employment as in the UK.
3.23 We also note that the proposal
makes frequent reference to 'public order' as a reason for differences
in treatment. We ask the Minister to explain, in each case, whether
the reference should be taken to mean public policy ( i.e. ordre
public) or public order in the more strict sense.
3.24 We shall hold the documents
under scrutiny pending the Minister's reply.
1 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
2
'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
3
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
4
i.e. protection sufficient to cause a fear
of persecution or of serious harm to be other than well-founded. Back
5
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
6
It is not clear if this means public policy
(ordre public) or 'public order' in the strict sense. Back
7
By virtue of Article 22(4) Member States may
extend this treatment to other close relatives who lived together
as part of the family and who were wholly or mainly dependent on
the protected person. Back
8
Presumably, what is meant is assistance for
those who wish to return. Back
9 Article 35 has been deleted. Back
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