14 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 nationals 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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| Department | Home Office |
| Basis of consideration | Minister's letter of 16 May 2003
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| Previous Committee Report | HC 63-xix (2002-03), paragraph 3 (30 April 2003); and see (22885) 13620/01; (23919) 12620/02; (24022) 14643/02: HC 63-iv (2002-03), paragraph 6 (11 December 2002)
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| To be discussed in Council | 5/6 June 2003
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| Committee's assessment | Legally and politically important
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| Committee's decision | (Both) Cleared
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Background
14.1 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[51]
and which applicants qualify for subsidiary forms of protection.[52]
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. We considered the current version
of Articles 1 to 17 (document (a)) and of Articles 18 to 39 (document
(b)) on 30 April.
14.2 Articles 1 to 17 deal with scope and definitions, the assessment
of applications for international protection and the qualification
for being a refugee or for receiving subsidiary protection. Articles
18 to 39 concern rights of residence, and access to employment,
education, social welfare and health and psychological care.
14.3 In relation to Articles 1 to 17 of the proposals we were
concerned about the possibility of the return of a refugee to
countries where the government was, or was associated with, the
agent of persecution. We welcomed the statement by the Minister
of his belief that the proposal did not allow for the return of
a refugee to a country where the government of that country either
was the agent of persecution or was associated with such an agent.
The Minister referred us to Articles 9, 9A and 10 of document
(a) and stated that it was clear from these Articles that the
Directive did not permit a person to be returned where there was
no safe place in that country where they could stay. In relation
to Articles 18 to 39, we broadly agreed with the Minister's assessment
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, together with
the rights and benefits to be attached to such status.
14.4 Nevertheless, we raised two points with the Minister on Articles
18 to 30. The first concerned Article 24 on access to employment
and the provision which allowed Member States to 'give priority'
to EU and EEA citizens over those with subsidiary protection status,
for up to one year. We asked the Minister what was meant by giving
'priority' in this context, and if he would press for the Directive
to provide the same access for employment for a person in receipt
of subsidiary protection as is afforded by the UK.
14.5 We also noted that the proposal referred to 'public order'
in a number of instances as a reason to justify differences in
treatment. We asked the Minister to explain, in each case, whether
the reference should be taken to mean public policy (i.e. ordre
public or public policy) or public order in the more strict
sense.
The Minister's reply
14.6 In his letter of 16 May the Parliamentary Under-Secretary
of State at the Home Office (Lord Filkin) addresses both of these
questions.
14.7 On the question of access to employment, the Minister comments
as follows;
"The Government view is that the Directive does oblige Member
States to provide access to employment on the day status is granted,
as happens in the UK, but allows Member States to give priority
in the labour market, for a limited period, to EU and EEA nationals.
The UK has taken the approach that these are minimum standards
and that Member States need flexibility to address particular
difficulties in their systems. Given the difficulties some Member
States have with this particular issue I consider it is reasonable
for there to be differences between the benefits available to
those with refugee status and those with subsidiary protection.
The existence of the 1951 Convention is evidence of the special
status of refugees within the framework of international protection
and that alone provides an argument for special treatment."
14.8 On the use of the term 'public order' the Minister comments
that it is understood by Member States to refer to situations,
similar to those of national security, where the public good might
be threatened. The Minister adds that 'public order' in the stricter
sense which we mentioned, where there is a threat to the structure
of society, would be included in this wider definition.
Conclusion
14.9 We thank the Minister for his answers to the two issues
we raised on this proposal. On the question of access to employment,
we consider that it would be preferable for all Member States
to allow immediate access to the labour market for all those in
receipt of subsidiary protection, as is the practice in the United
Kingdom. However, we accept the Minister's argument that the proposal
seeks only to establish minimum standards and that some flexibility
is needed as the price of agreement.
14.10 We are grateful for the Minister's explanation of the
term 'public order' in the context of this proposal. We infer
from his explanation that the term is to be construed widely,
as equivalent to public policy, and is not limited to situations
which might give rise to public disorder. We believe this wider
interpretation is appropriate in the context of conferring or
withholding refugee or subsidiary protection status.
14.11 In the light of these explanations, we are content to
clear the documents.
51 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
52
'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
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