13 Qualification and status of refugees
and procedures for granting and withdrawing asylum
| (a)
(31043)
14863/09
COM(09) 551
+ ADDs 1-2
+ ADD 3
+ ADD 4
(b)
(31046)
14959/09
COM(09) 554
+ ADD 1
+ADDs 2-4
| 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 (recast)
Commission staff working documents: impact assessment and summary of assessment
Detailed explanation of the proposal
Commission staff working document: annexes to ADD 1
Draft Directive on minimum standards for Member States' procedures for granting and withdrawing international protection (recast)
Commission staff working document: article by article explanation of the draft Directive
Commission staff working document: impact assessment and summary of assessment
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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
(b) Article 63(1)d) and (2)(a) EC; co-decision; QMV
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| Department | Home Office
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| Basis of consideration | Minister's letter of 24 August 2010
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| Previous Committee Report | (a) HC 5-i (2009-10), chapter 4 (19 November 2009); HC 5-viii (2009-10), chapter 2 (27 January 2010) and HC 5-xviii (2009-10), chapter 2 (7 April 2010)
(b) HC 5-i (2009-10), chapter 3 (19 November 2009); HC 5-viii (2009-10), chapter 3 (27 January 2010) and HC 5-xviii (2009-10), chapter 3 (7 April 2010)
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| To be discussed in Council | Possible discussion in September
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
13.1 In their initial consideration of these proposals in
November 2009, our predecessors noted that the Council had 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 in 2004 ("the 2004 Directive")[52]
and a Directive on Member States' procedures for granting and
withdrawing refugee status in 2005 ("the 2005 Directive").[53]
The UK participates in both Directives. The Commission, however,
considers the operation of these Directives to be unsatisfactory
and has proposed amendments with the aim of remedying deficiencies
and making further progress towards establishing a common European
asylum system.[54]
13.2 Document (a) — the recast Qualifications
Directive — proposes a number of changes to the 2004 Directive
which are intended to secure, through further harmonisation, higher
standards of protection for individuals in need of international
protection. The main changes include:
- an extension of the scope of
the 2004 Directive to cover all "beneficiaries of international
protection" — refugees and others given a subsidiary
form of protection;
- extension of the definition of family members
to include, for example, the parent/s of a person aged less than
18 who has been granted protection;
- a narrowing of the circumstances in which Member
States may determine that protection against persecution may be
provided in the applicant's home country (or part of it);
- a narrowing of the grounds on which a Member
State may determine that the circumstances which led to an individual
being recognised as in need of protection no longer exist;
- removal of Member States' discretion to limit
access to certain social benefits or healthcare;
- a new duty for Member States to ensure equal
treatment for beneficiaries of international protection as regards
the recognition of their qualifications and to facilitate ways
in which qualifications may be assessed and accredited where documentary
evidence is lacking; and
- a duty (rather than merely a discretion) for
Member States to ensure access to integration programmes.
13.3 Document (b) — the recast Procedures
Directive — proposes changes to the 2005 Directive which
are intended to remove some of the discretion currently enjoyed
by Member States and to establish a more uniform procedure and
common guarantees for asylum applicants. The main changes include:
- the use of a single procedure
for all applications for international protection covering refugees
and those seeking a subsidiary form of protection;
- extension of the scope of the Directive to include
applications made in Member States' territorial waters;
- introduction of new mandatory requirements on
the content of training to be provided to officials responsible
for examining applications for international protection;
- a new mandatory requirement to provide information
on asylum procedures and access to advice and counselling at border
crossings and in detention facilities;
- a new mandatory duty on Member States to allow
applicants for international protection to request a medical examination
to support claims of past persecution or serious harm;
- more extensive guarantees for unaccompanied
minors, including exemption from the application of accelerated
procedures and the safe third country concept;
- a narrowing of the circumstances in which Member
States may apply accelerated procedures or consider applications
to be unfounded; and
- establishing, for most cases, a right to remain
within the host Member State pending the outcome of an appeal
against a refusal to grant international protection.
The previous Government's position
13.4 In her Explanatory Memoranda of 5 November
2009, the then Minister (Meg Hillier) told the previous Committee
that the Government had reservations about both proposals and,
while supporting simplification and improved efficiency, feared
that the Procedures Directive in particular might hamper Member
States' ability to tackle abuses of the asylum system. Our predecessors
decided to keep both draft Directives under scrutiny and requested
progress reports.[55]
13.5 The Minister wrote on 22 January 2010 to
inform the Committee of the Government's decision not to opt into
either draft Directive. She considered that the changes proposed
to the 2004 Directive would "pose quite a significant risk
to our asylum system", highlighting, in particular, the extension
of the definition of family members (which might lead to a significant
increase in the number of applications made by minors) and the
narrowing of the circumstances in which Member States may determine
that adequate protection is available within the applicant's home
country.
13.6 The Minister reiterated the Government's
concern that the changes proposed to the 2005 Directive would
risk making it more difficult for the UK to manage its asylum
system effectively. In particular, the proposed restrictions on
the use of accelerated procedures and on Member States' ability
to certify certain claims as "manifestly unfounded"
might prevent the UK from operating its Detained Fast Track scheme
on its current terms.
13.7 The Minister nevertheless indicated that,
notwithstanding the Government's decision not to opt into either
Directive, the Government intended to remain engaged in the negotiations
with a view to opting in to one or both Directives if the grounds
for the UK's objections were removed.[56]
13.8 In a further letter of 30 March, the Minister
told the Committee that progress in examining the proposed changes
to the 2004 and 2005 Directives was slow, with many Member States
registering strong objections and supporting the reservations
expressed by the UK. The European Parliament had not, so far,
proposed amendments to either draft Directive. Our predecessors
requested further progress reports and kept both draft Directives
under scrutiny.[57]
The Government's view
13.9 The Parliamentary Under-Secretary of State
for Crime Prevention at the Home Office (James Brokenshire) wrote
to us in June to provide an overview of the Belgian Presidency's
priorities in justice and home affairs from July to December 2010.
He said that the Presidency would push for progress on a number
of proposals forming part of "the second phase of the Common
European Asylum System", including the proposed changes to
the Qualifications and Procedures Directives. He added that the
Government made clear at the Justice and Home Affairs Council
in June (the last under the Spanish Presidency) that "it
does not support a common European asylum policy based on harmonised
legislation but is keen to support practical co-operation to strengthen
our borders, reduce intake, increase returns and help countries
to build up effective asylum systems".[58]
13.10 On 27 July, the Secretary of State for
the Home Department (Mrs Theresa May) made a statement to the
House on the European Investigation Order which included the following:[59]
"In justice and home affairs, there are many
ideas coming out of Brussels, such as the common asylum policy,
that would involve an unacceptable loss of sovereignty. I want
to make it absolutely clear to the House that I will not sign
up to those proposals, and I have made that clear to my European
counterparts."
The Minister's letter of 24 August 2010
13.11 The Minister of State for Immigration at
the Home Office (Damian Green) provides the latest progress report
on the proposed changes to the 2004 and 2005 Directives. He says
that:
"The informal Justice and Home Affairs Council
on 15-16 July agreed that the revised Qualifications Directive
would be one of the instruments (along with the Dublin and Eurodac
Regulations and the proposal to amend the Directive concerning
the status of third country nationals who are long term residents
to include refugees and beneficiaries of subsidiary protection)
to be given priority in the negotiations under the Belgian Presidency.
Negotiations between Member States will be restarted at the end
of September, and we understand that the Belgians will be seeking
to obtain political agreement on the instrument by the end of
their Presidency."
13.12 The main issues of contention in negotiations
on the revised Qualifications Directive concern:
- the extension of the definition
of family members, which might require Member States to expand
their obligations to permit family reunion and lead to abuse of
the asylum system;
- the impact on some Member States' asylum systems
of treating those granted refugee status and those given a subsidiary
form of protection in the same way in most respects; and
- the circumstances in which Member States may
refuse a claim for international protection because they believe
that adequate protection can be provided in the applicant's home
country, or in a safer part of it.
13.13 The Minister tells us that negotiations
on the revised Procedures Directive have been even more contentious,
with little sign of any substantive consensus. He says that most
Member States consider proposed restrictions on the use of accelerated
procedures to be confusing, overly restrictive and ambiguous.
He also highlights difficult negotiations on the Commission's
proposals for handling "subsequent applications" —
those made by an applicant for international protection after
having already submitted an initial application in the same Member
State. A number of Member States have argued for the right to
remove individuals making subsequent applications without a substantive
consideration of their claim.
13.14 The Minister considers that the negotiations
demonstrate "a general reluctance on the part of Member States
to abandon features of their asylum systems that they consider
necessary in their national circumstances" and that "the
reluctance to compromise here supports our view that the Directive
is over-ambitious in seeking to harmonise the very different asylum
procedures that exist in the EU". He adds that the Presidency
intends to discuss the revised Procedures Directive at the Ministerial
Council on Asylum in September and that the Commission may yet
decide to withdraw its proposal and replace it with a less ambitious
one.
Conclusion
13.15 We thank the Minister for continuing
to provide progress reports on the negotiations on both draft
Directives. We note that the UK is not alone in expressing reservations
about the nature and pace of progress towards establishing a common
European asylum system. We welcome the Government's continuing
active engagement in the negotiations, notwithstanding its decision
not to opt into either draft Directive, because any eventual agreement
on the establishment of a common European asylum system will be
likely to have some impact on the UK's own asylum system.
13.16 We note that the recast Directives,
if adopted, would repeal and replace the 2004 and 2005 Directives.
As the UK has notified the Presidency, pursuant to Article 3 of
the Protocol on the Position of the UK and Ireland in respect
of the Area of Freedom, Security and Justice, that it does not
intend to take part in the adoption or application of either of
the recast Directives, we would be grateful if the Minister could
explain whether the repeal of the 2004 and 2005 Directives would:
- only take effect in those
Member States participating in the adoption of the recast Directives,
or;
- would also take effect in the UK.
If the former, we also ask the Minister to clarify
whether the UK would remain bound by the provisions of the original
2004 and 2005 Directives. If the latter, we ask the Minister to
explain what consequences the repeal of the 2004 and 2005 Directives
would have for the UK's asylum system. Meanwhile, we shall keep
both draft Directives under scrutiny.
52 Council Directive 2004/83/EC: OJ No. L 304, 30.09.04,
p.12. Back
53
Council Directive 2005/85/EC: OJ No. L 326, 13.12.05, p.13. Back
54
Article 78(2) of the Treaty on the Functioning of the European
Union provides for the adoption of measures for a common European
asylum system. Back
55
See HC 5-i (2009-10), chapters 3 and 4 (19 November 2009). Back
56
See HC 5-viii (2009-10), chapters 2 and 3 (27 January 2010). Back
57
See HC 5-xviii (2009-10), chapters 2 and 3 (7 April 2010). Back
58
See James Brokenshire's letter of 30 June 2010, http://www.parliament.uk/business/committees/committees-a-z/commons-select/european-scrutiny-committee/ministerial-correspondence/
Back
59
HC Deb, 27 July 2010, col.
881. Back
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