1 Procedures for granting
and withdrawing refugee status
| (25048)
14686/03
—
+ COR 1
| Amended draft Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status.
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| Legal base | Article 63(1)(d) EC; consultation; unanimity
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| Document originated | 14 November 2003
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| Deposited in Parliament | 18 November 2003
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| Department | Home Office |
| Basis of consideration | EM of 28 November 2003
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| Previous Committee Report | None; but see (24366) 7214/03 and (24860) 12281/03: HC 63-xxxiii (2002-03), paragraph 20 (15 October 2003)
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | For debate in European Standing Committee B
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Background
1.1 Article 63(1) of the EC Treaty requires the Council, within
five years of the entry into force of the Treaty of Amsterdam
(that is, by May 2004), to adopt measures on:
- criteria for determining which
Member State is responsible for considering an application for
asylum made by a third country national in one of the Member States;
- minimum standards on reception of asylum seekers;
- minimum standards on the qualifications of third
country nationals as refugees; and
- minimum standards on procedures for granting
and withdrawing refugee status.
1.2 A proposal for a draft Directive on procedures
("the Procedures Directive") has been under discussion
since 2000. In June 2002, the Seville European Council called
for the Directive to be adopted by the end of 2003. That objective
will not be achieved because agreement has still not been reached
on a text.
The document
1.3 The latest draft of the Procedures Directive
has six Chapters:
- Chapter I, Articles 1 to 4
— general provisions (purpose; definitions; scope; responsible
authorities; and power for Member States to introduce or maintain
procedures more favourable to applicants than those contained
in the Directive).
- Chapter II, Articles 5 to 22 — basic principles
and guarantees (access to the procedures; right to remain in the
Member State pending the examination of the asylum application;
requirements for the examination of applications; guarantees for
applicants; rights to, and requirements for, personal interviews
with applicants; right to legal assistance and representation;
guarantees for unaccompanied minors; detention; procedure for
withdrawal or abandonment of an application; the role of the United
Nations High Commissioner for Refugees (UNHCR); and prohibition
of disclosure of information to the alleged persecutor of an
applicant).
- Chapter III, Articles 23 to 35A — procedures
at first instance (procedure for examination of applications,
including provision for accelerated or prioritised examination;
inadmissible applications; application of the concept of first
country of asylum; national designation of safe third countries;
unfounded applications; safe countries of origin; subsequent applications;
and procedures for dealing with applications made at the border).
- Chapter IV, Articles 36 and 37 — procedures
for withdrawal of refugee status.
- Chapter V, Articles 38 to 40 — appeals
procedures (right to an effective remedy; right to remain during
review or appeal; time limits for, and scope of, reviews or appeals);
- Chapter VI, Articles 40A to 45 — general
and final provisions (including provisions on confidentiality;
and transposition of the Directive into national law).
- Annex I — definitions of certain terms
in Ireland.
- Annex II — criteria for the designation
of safe third countries.
- Annex III — criteria for the designation
of safe countries of origin.
MINIMUM STANDARDS
1.4 Article 1 provides that:
"The purpose of this Directive is to establish
minimum standards on procedures in Member States for granting
and withdrawing refugee status."
Most of the subsequent Articles do specify mandatory
minimum standards. But other Articles do not. For example:
- Article 5(4) gives Member States
discretion to provide in national legislation for the cases in
which a minor may make an application for asylum on his or her
own behalf; and the cases in which the lodging of an application
for asylum is deemed to constitute also the lodging of an application
for an unmarried minor.
- Article 7(4) gives Member States discretion to
make their own rules on the translation of documents relevant
to the examination of applications.
- Article 12(3) gives Member States discretion
whether to ask the applicant if he or she approves of the contents
of the report on his or her personal interview with the immigration
authority about the asylum application.
- Article 14(3) leaves it to Member States to make
their own rules on whether applicants are allowed to be accompanied
by their legal advisers at personal interviews about applications.
- Article 40(2) gives discretion to Member States
to provide in national legislation the conditions under which
it can be assumed that applicants have implicitly withdrawn or
abandoned reviews of asylum decisions or appeals against them;
and Article 40(3) gives Member States discretion whether to prescribe
the time limits for courts or tribunals to examine such decisions
and what any such limits should be.
FIRST COUNTRY OF ASYLUM AND SAFE THIRD COUNTRIES
1.5 Article 26 provides that a country may be considered
to be a first country of asylum for applicants (provided they
will be re-admitted to the country) if they have been recognised
by that country or the UNHCR in that country as refugees and they
can still avail themselves of that protection or they otherwise
have sufficient protection in that country and would not be sent
back to the place from which they are seeking asylum. In applying
this provision to a particular applicant, Member States "may"
take account of Annex II of the Directive (criteria for designation
of safe third countries).
1.6 Article 27 provides that Member States may consider
a country a safe third country for the purposes of examining asylum
applications only in accordance with Annex II. Member States may
retain or introduce national legislation that permits the designation
of countries as safe third countries.
1.7 Article 28 provides that a country which satisfies
the requirements of Annex II may be considered a safe third country
for a particular applicant only if the applicant has had an opportunity
to take advantage of the effective protection of the country and
the applicant would be admitted or readmitted to the country.
The applicant is to be assumed to have had the opportunity to
take advantage of the protection of the country if he or she travelled
through it and had an effective opportunity to apply for asylum
there.
1.8 Article 30 provides that a third country may
be designated a safe country of origin for the purposes of examining
applications only in accordance with Annex III (criteria for designation
as a safe country of origin). A country designated as a safe country
of origin may be considered safe for a particular applicant only
if the applicant has the nationality of that country or was formerly
habitually resident there and the applicant has not provided grounds
for considering the country to be unsafe for him or her.
1.9 Article 30A empowers the Council to adopt a minimum
common list of third countries which Member States are to regard
as safe countries of origin.
1.10 Article 30B gives Member States discretion to
retain or introduce national legislation designating as safe countries
of origin countries which are not on the minimum common list for
which Article 30A provides. National designation of a country
must satisfy the requirements of Annex III.
BORDER PROCEDURES
1.11 Article 35 gives Member States discretion to
retain or introduce procedures for deciding, at their borders,
applications made at the border. The decisions must be made "in
a reasonable time". If a decision is not made within four
weeks, the applicant must be granted entry to the Member State
to enable the application to be processed in accordance with the
other provisions of the Directive.
The UNHCR's views
1.12 On 18 November 2003, the UNHCR issued an aide
memoire on the draft of the Procedures Directive. In a general
comment, it said:
"UNHCR is very concerned that, at this critical
stage of the EU harmonisation process, some crucial international
protection standards are in danger of being seriously eroded.
Negotiations appear to be veering towards the 'lowest common denominator',
with Member States more interested in ensuring their own national
asylum systems will not have to change, than in providing a harmonised,
fair and efficient asylum procedure throughout the EU as intended
(and indeed envisaged by the Commission's original draft).
"Likely result: the Directive is reduced to
a compilation of optional provisions that accommodate the existing
and planned practices of EU Member States, including those most
seriously at variance with international protection standards,
and provides for minimal harmonisation".
1.13 The proposed provisions on first country of
asylum and safe third countries and border procedures are among
the UNHCR's principal concerns. Referring to Articles 26 to 28
and Annex II, the aide memoire says:
"The current draft allows asylum-seekers to
be returned to any third country where they stayed before reaching
the EU without risk of forcible return to a dangerous situation.
The text also allows EU States to return asylum-seekers to specific
third countries, determined to be generally 'safe' if the asylum-seeker
has merely transitted these countries. It even allows asylum-seekers
to be sent to 'safe' countries with which they have no connection
whatsoever, the only condition being that the country would agree
to admit them.
"UNHCR believes that the development of these
concepts in the draft Directive has the effect of unilaterally
shifting responsibilities to countries outside the EU. UNHCR is
strongly opposed to the extension of the 'safe third country'
concept to countries where an applicant has no links and where
she or he may never even have set foot, but where she or he merely
'has' … an opportunity to seek protection and would be 'admitted'.
There is no basis in international law for forcing asylum- seekers
to seek protection in a country where they have never been. Nor
does the mere fact that someone transitted through a country in
principle constitute such a meaningful link."
1.14 The UNHCR also comments on Article 35 (border
procedures). The aide memoire says:
"The draft Directive foresees a special procedure,
involving detention and reduced safeguards, for asylum-seekers
who apply for asylum at the border … In UNHCR's view, it
is only logical and fair that all asylum-seekers, irrespective
of whether they apply at the border (including air and sea ports),
or further inside a country, benefit from the same basic principles
and guarantees. UNHCR is concerned that, according to the current
draft, all asylum-seekers can be confined for a period of up to
four weeks in the border procedure, without any possibility of
having their detention reviewed — and with no exceptions
provided for people with special needs such as separated children,
women, victims of torture and other traumatized people".
The Government's view
1.15 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) tells us that the Government
supports the overall intention of the proposed Directive but wants
to ensure that it takes proper account of the needs of Member
States to adopt policies in response to changing situations.
1.16 Commenting on Article 30 (safe countries of
origin) and Annex III, the Minister says that the Annex should
focus on the key principles of non-refoulement[1]
and the absence of persecution or treatment contrary to Article
3 of the European Convention on Human Rights.
1.17 The Minister also draws our attention to some
additions and amendments to the text since we saw the previous
draft of the Directive.
1.18 As currently drafted, the Directive would require
implementing legislation in the UK. The Government hopes to secure
amendments which will remove the need for this.
Conclusion
1.19 Whatever the outcome of the further negotiations
on this document, there appears no reason to doubt that there
will remain provisions which do not establish common minimum standards
but rather allow Member States discretion to set their own procedures.
As we said when we last considered this matter in October,[2]
we recognise that departures from common minimum standards have
been made with the aim of achieving unanimous agreement on an
overall package of measures and that Member States wish to preserve
specific features of their own national procedures. But the resultant
compromise of the principle of common minimum standards may be
unacceptable.
1.20 There also appears no reason to doubt that
provisions on first countries of asylum, safe third countries,
safe countries of origin and border procedures will continue to
be included in the proposed Directive. It appears to us that
Articles 26 to 28 and 30, 30A, 30B and 35 of this document go
beyond existing UK legislation. In our view, particularly in the
light of the concerns expressed by the UNHCR, these proposals
raise questions of wide political importance.
1.21 Accordingly, we recommend that the document
should now be debated by Standing Committee B and that the debate
should focus, in particular, on the acceptability of departing
from the principle of common minimum procedures for granting and
withdrawing refugee status; the proposals for first countries
of asylum, safe third countries, and safe third countries of origin;
and the proposals for border procedures. We consider that this
would be timely so that the Government could take the debate into
account in the further negotiations on the draft Directive.
1 The prohibition of expulsion or return to a country
where the life or freedom of the individual would be threatened. Back
2
See headnote. Back
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