3 Procedures for granting and withdrawing
asylum
| (31046)
14959/09
COM(09) 554
+ ADD 1
+ADDs 2-4
| Draft Directive on minimum standards for Member States' procedures for granting and withdrawing international protection (recast)
Commission staff working paper: article by article explanation of the draft Directive
Commission staff working paper: impact assessment and summary of assessment
|
| Legal base | Article 63(1)(d) and (2)(a) EC; co-decision; QMV
|
| Department | Home Office |
| Basis of consideration | Minister's letter of 22 January 2010
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| Previous Committee Report | HC 5-i (2009-10), chapter 3 (19 November 2009)
|
| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
|
Previous scrutiny
3.1 When we considered this proposal in November 2009, we
noted that the Council had adopted a Directive in 2005 on Member
States' procedures for granting and withdrawing refugee status.[9]
The Commission's original draft of the 2005 Directive contained
common minimum standards. But, in negotiation, the Council amended
the draft to allow Member States wider discretion. The Commission
believes that this has led to disparate national arrangements
and deficiencies in, for example, the procedural guarantees for
asylum seekers. So, in October 2009, the Commission proposed the
repeal of the 2005 Directive and its replacement by a new ("recast")
Directive which would re-enact some of the provisions of the existing
Directive, omit others and amend the rest with the aim of remedying
the deficiencies and moving closer to a truly common asylum procedure
and a uniform status for people seeking protection.
3.2 For example:
(i) The draft Directive says that its purpose
is to establish minimum procedural standards for granting or withdrawing
"international protection". It defines "international
protection status" as recognition by a Member State of a
third country national or stateless person as a refugee or person
eligible for subsidiary protection.[10]
(ii) Article 4(2) of the draft Directive contains
a new mandatory requirement about the matters to be included in
the training of officials who examine applications for international
protection.
(iii) Article 9(2) of the draft Directive contains
a new mandatory requirement for every application for international
protection to be examined first to determine whether the applicant
qualifies as a refugee and then, if not, to determine whether
the applicant is eligible for subsidiary protection.
(iv) Article 17 of the draft Directive contains
a new mandatory duty on Member States to allow applicants who
ask for it an impartial medical examination in order to support
claims of past persecution or serious harm.
(v) Article 27(6) of the draft Directive reduces
the grounds on which a Member State may accelerate the examination
of an application for international protection.
3.3 In her Explanatory Memorandum of 5 November
2009, the Parliamentary Under-Secretary of State at the Home Office
(Meg Hillier) told us that the Government was concerned that the
draft Directive would impede Member States' ability to tackle
abuses of the asylum system. For example:
(i) The Government agreed that the officials
who deal with applications for asylum should be trained properly
but thought that this should be achieved through practical cooperation
between Member States rather than the requirement proposed in
Article 4(2);
(ii) The Government did not question the need
for medical reports in some cases, but was concerned about the
proposed requirement in Article 17 for Member States to allow
medical examinations on request because it would encourage applicants
who have not got medical needs to ask for a medical examination
so as to delay the processing of their applications;
(iii) The Government did not believe that the
use of the accelerated procedure for the examination of applications
should be restricted in the way proposed in Article 27 of the
draft Directive;
(iv) Moreover, Articles 27 and 41 of the draft
Directive would prevent the UK from certifying claims for asylum
as clearly unfounded on a case-by-case basis and, consequently,
prevent the UK from continuing to use non-suspensive appeals in
those cases.
3.4 The Minister told us that the Government
had opted into the 2005 Procedures Directive but had not yet decided
whether to opt into the proposed successor.
3.5 When we considered the draft Directive last
November, we noted the Government's reservations about some of
its provisions. We shared its concern about the training requirements
in Article 4(2); we questioned whether the provision is consistent
with the principle of subsidiarity. We asked the Minister to raise
the point with the Commission and in the Council working group
and to tell us the response. We also asked her for progress reports
on the negotiations.
The Minister's letter of 22 January 2010
3.6 In her reply of 22 January, the Minister
reiterates the Government's concern that the draft Directive would
prevent the UK from operating the Detained Fast Track procedure
on its current terms. She says that the accelerated procedure
provides fast and fair decisions and "delivered over 1200
removals between April 2008 and September 2009, with 97% being
upheld on appeal".
3.7 The Government has not yet raised with the
Commission its concern and ours about the compatibility of the
provisions of Article 4(2) with the principle of subsidiarity.
3.8 The Government's discussions with other Member
States indicate that many of them share the UK's opposition to
parts of the draft Directive. The negotiations are likely to be
long and difficult, not only in the Council but also in the European
Parliament. There is a real risk that the draft Directive, when
the negotiations have been completed, will contain provisions
which the Government cannot accept. So the Government has not
opted into the draft. But it will continue to take part in the
consideration of the proposal because, if the grounds for the
UK's objections were removed, the way would be open for the Government
to opt in after the Directive is adopted.
Conclusion
3.9 We are grateful to the Minister for her
letter. We understand why the Government has not opted into the
draft Directive but will continue to take part in the negotiations
on it. We should be grateful for further progress reports and,
meanwhile, we shall keep the document under scrutiny.
9 See HC 5-i (2009-10), chapter 3 (19 November 2009). Back
10
A refugee is a person who, because of a well-founded fear
of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion,
is outside his or her country of nationality and is unable or
unwilling to avail himself or herself of the protection of that
country; or a person who is stateless and unable or unwilling
to return to the country of his or her habitual residence because
of such fears of persecution.
Subsidiary protection
is the status given to people who do not qualify as refugees but
who are at risk of serious harm if returned to their country of
origin. Back
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