Select Committee on European Scrutiny Nineteenth Report


3 Status of refugees

(a)

(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.
(b)

(24278)

6725/03

ADD 1


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.

Legal baseArticles 63(1)(c), 63(2)(a) and 63(3)(a) EC; consultation; unanimity
Document originated(b) 13 February 2003
Deposited in Parliament(b) 18 February 2003
DepartmentHome Office
Basis of consideration(a)Minister's letter of 17 January 2003

(b)EM of 14 March 2003

Previous Committee Report(a)HC 63-iv (2002-03), paragraph 6 (11 December 2002)
To be discussed in Council8 May 2003
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

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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