2 Qualification and status of refugees
| (31043)
14863/09
COM(09) 551
+ ADDs 1-2
+ ADD 3
+ ADD 4
| Draft Directive on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted
Commission staff working documents: impact assessment and summary of assessment
Detailed explanation of the proposal
Commission staff working document: annexes to ADD 1
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| Legal base | Article 63(1)(c) and (2)(a) EC; co-decision; QMV; and Article 63(3)(a) EC; consultation; unanimity
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| Department | Home Office
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| Basis of consideration | Minister's letter of 30 March 2010
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| Previous Committee Report | HC 5-i (2009-10), chapter 4 (19 November 2009) and HC 5-viii (2009-10), chapter 2 (27 January 2010)
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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 | Not cleared; further information requested
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Introduction
2.1 In 2004, the Council adopted a Directive on minimum standards
for the qualification and status of third country nationals or
stateless people as refugees or people who otherwise need protection
("the original Qualifications Directive").[4]
The Commission believes that the standards set by the Directive
are unsatisfactory and has, therefore, proposed this draft Directive
to remedy what it sees as the defects and to ensure higher standards
of protection for people who need it. To that end, the draft Directive
re-enacts some of the provisions of the original Directive, omits
others and amends the rest.
Previous scrutiny of the document
2.2 When we considered the draft Directive in November 2009,
we drew attention to the significant differences between the original
Directive and the Commission's proposals for its replacement.[5]
2.3 In her Explanatory Memorandum of 5 November
2009 and her letter of 22 January 2010, the Parliamentary Under-Secretary
of State at the Home Office (Meg Hillier) told us that the Government
was not persuaded of the case for some of the proposals and believed
that they would pose a significant risk to the UK's asylum system.
She said, for example, that:
"The amended definition of a family member —
in particular its extension to include the parents of unaccompanied
minors whose claims are granted — is the most worrying [of
the Commission's proposals]. Although Article 2(j) states that
the definition only extends to persons who are in the same Member
State as the minor, we believe that this, especially when combined
with the obligation to maintain family unity (Article 23(1)) and
to trace the relatives of unaccompanied minors (Article 31(5))
carries an unacceptable risk of requiring us to admit the parents
of unaccompanied minors who are granted status.
"We fear that that would lead to a significant
increase in the number of applications we receive from minors
(currently about 3500 a year, or 12% of our intake) — possibly
as a result of parents sending their children ahead of them in
the hope of being able to join them if they are granted status.
That would be deeply prejudicial to the welfare of the children
concerned and is in our view, the wrong direction to go in when
numbers of UASCs [unaccompanied asylum seeking children] arriving
in Europe have already significantly increased. The Government
already spends over £140m a year in caring for unaccompanied
asylum seeking children, and an increase in the number of applications
we receive from this category would risk raising these costs further."
2.4 The Minister also told us that, because of
its concerns about the likely effects of the proposals on the
UK's asylum system, the Government had decided not to opt into
the draft Directive. It would, however, take part in the negotiations
with a view to applying to be bound by the Directive (if adopted)
if the Government's concerns have been dealt with satisfactorily.
2.5 When we considered the draft Directive on
27 January 2010,[6] we
noted that Title IV of the EC Treaty would no longer provide the
legal base for the draft Directive. Because the Treaty of Lisbon
came into effect on 1 December 2009, the Treaty on the Functioning
of the European Union will provide the legal base and all the
provisions of the draft Directive will be subject to co-decision
between the Council and the European Parliament and the Council
and to Qualified Majority Voting in the Council. This removes
the legal difficulty to which we referred in paragraph 4.10 of
our Report of 19 November 2009.
2.6 We were not surprised by the Government's
decision not to opt into the draft Directive. We asked the Minister
to send us progress reports on the negotiations and kept the draft
Directive under scrutiny.
The Minister's letter of 30 March 2010
2.7 In her letter of 30 March, the Minister reminds
us of the Government's reservations about the proposed extension
of the definition of a family member. She says that the Government
is:
"particularly worried that this would be interpreted
as requiring Member States to allow unaccompanied minors whose
claims for protection are granted to be joined by their parents.
"The Commission has said that the change is
not intended to have this effect, but only to cover family members
who are present in the same Member State as the unaccompanied
minor. While this is reassuring we think there is still an unacceptable
risk that the Courts will interpret the provision differently,
because of the continuing obligations to maintain family unity
and to trace family members that appear in the Directive. We are
therefore pressing for wording to be included that will put the
issue beyond doubt.
"Many Member States raised similar objections
to the broader definition and felt that this would lead to abuse
by parents and family members and there have been suggestions
that this article be looked at again in light of all Member States'
concern."
2.8 During the negotiations, the Government has
also expressed its reservations about Article 7 ("actors
of protection") and 8 ("internal protection").
[7] Other Member States
share the view that the proposals go too far and that they risk
requiring Member States to grant protection when it is not actually
needed and that the wording of the original Qualifications Directive
is better.
Conclusion
2.9 We thank the Minister for her helpful
letter. We should be grateful if she would provide us with a further
progress report in three months or sooner if there are significant
developments before then. Meanwhile, we shall keep the draft Directive
under scrutiny.
4 Council Directive 2004/83/EC: OJ No. L 304, 30.09.04,
p.12. Back
5
See HC 5-i (2009-10), chapter 4 (19 November 2009). Back
6
See HC 5-viii (2009-10), chapter 3 (27 January 2010). Back
7
Article 7 provides that protection against persecution must be
effective and durable and can only be provided by "actors
of protection" , defined as States and parties or organisations
controlling a substantial part of the territory and which are
willing to enforce the rule of law and take reasonable steps to
prevent persecution. Article 8 gives Member States discretion
to decide that an asylum seeker is not in need of international
protection because he or she has access to protection in a part
of his or her country of origin. Back
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