16. Memorandum submitted by
Mr Martin Howe QC
In my evidence to the Committee on Tuesday 13
May 2003, I was asked by Mr Prosser about harmonisation of the
treatment of asylum applicants across different European countries.
I expressed the view that "opting in" to the draft EU
Directive harmonising the definition of refugee status would do
more harm than good for this country. I was only able to deal
with this point briefly in oral evidence, and it occurred to me
that the Committee might be interested in some more detailed information
on what is an important topic.
In my view the drawbacks of the UK submitting
to this Directive are (1) further delays in the asylum process
as a result of opening up EU routes of legal challenge, (2) loss
of flexibility in altering future policy, and (3) the prospect
that Acts of Parliament could be set aside by the courts for conflict
with EC law.
On the first point, whilst asylum appeals and
judicial reviews would continue to be dealt with by our domestic
courts and tribunals, they would be obliged to apply EC law as
laid down in the Directive. This would have direct effect against
the British state under the ECJ's doctrine of the direct effect
of Directives. An asylum applicant would be entitled to ask for
a reference to the ECJ on the interpretation of a provision of
the Directive which affected the outcome of his or her case. Whether
to make a reference is discretionary in lower courts but is compulsory
in the case of a national court against whose decision there is
no further appeal, unless the question of interpretation is acte
claire, ie there is no real doubt about its outcome.
The time taken for the ECJ to deal with references
varies but can typically be around 18 months to two years (I have
personal experience of a case which took two and a half years).
During this period the case in the national courts is stayed.
In practice, there would have to be a stay not only of the case
of the individual concerned, but also of other parallel cases
which raised the same point of interpretation. The length and
complexity of the Directive, coupled with the ingenuity of lawyers,
would mean that there would be bound to be significant numbers
of applications for references to the ECJ.
Point (2), future flexibility, is very important
given that the government's policy is to review the UK's international
obligations in the field of asylum if current measures to tackle
asylum are not effective (see last paragraph of the Home Office's
evidence to the Committee). Adoption of the Directive would effectively
close off this future option, since it would freeze the 1951 Geneva
Convention, and indeed a particular detailed and quite generous
interpretation of it, into binding EC law. It would also freeze
into EC law, and extend, the doctrine developed by the Strasbourg
Court preventing the removal of unsuccessful asylum applicants
under Article 3 ECHR. Once the Directive is adopted, it would
be very difficult indeed to secure the necessary consensus across
the EU in order to make any significant changes to the international
legal framework.
Point (3) is linked to both points (1) and (2).
At present, our courts must comply with Acts of Parliament in
this field even if, under the Human Rights Act 1998, they have
considerable powers to interpret them in conformity with the ECHR.
But the wishes of Parliament prevail in the end if expressed in
clear statutory language, for example in the 2002 Act. However,
once this area of law is Communitised, the courts will be able
not merely to interpret but actually to strike down provisions
of Acts of Parliament on the grounds of conflict with EC law (as
for example was done in the Factortame case). Since the
content of EC law is often uncertain and dependent upon interpretation
by the ECJ and our own courts, this would represent a major future
hazard to Home Office legislation in this field.
The United Kingdom has the right under Articles
2 and 3 of the Amsterdam Protocol ("Protocol on the Position
of the United Kingdom and Ireland") not to participate in
measures under the Asylum etc chapter of the Treaty of Rome, unless
it positively opts in to a measure. The benefits of opting in
are highly marginal in that greater harmonisation of treatment
might produce some reduction in the relative attractions of the
UK to asylum seekers but whether this would in fact happen is
highly speculative. Set against that, there are serious and concrete
adverse consequences which I have outlined above in being tied
into a Directive on this subject.
On 10 March 2003, the Prime Minister wrote to
the EU Presidency putting forward a radical new approach to the
asylum issue in the form of Transit Processing Centres outside
the EU to which applicants would be transferred while their claims
were assessed. The Commission issued a paper responding to these
proposals on 3 June 2003, and it is highly questionable whether
it is realistic to expect that agreement to them can be reached
on an EU basis. However, I am concerned that the possibility of
proceeding with these proposals on a unilateral or multilateral
basis (involving a subset of EU member states) will be closed
off by the adoption of further EU harmonising measures in this
field. Indeed, a Directive already adopted (Council Directive
2003/9/EC of 27 Jan 2003 laying down minimum standards for the
reception of asylum seekers) might already pose a problem for
these proposals.
12 June 2003
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