European Scrutiny Committee Contents

9 Implementation of the Asylum Procedures Directive



COM(10) 465

Commission Report on the application of Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status

Legal base
Document originated8 September 2010
Deposited in Parliament13 September 2010
DepartmentHome Office
Basis of considerationEM of 24 September 2010
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


9.1 In 2005, the Council adopted a Directive establishing minimum standards to be applied by Member States in their procedures for granting or withdrawing refugee status ("the 2005 Directive"). The UK opted into the 2005 Directive and so is bound by its provisions. Member States were required to bring into force, by 1 December 2007, the law and other provisions necessary to comply with the 2005 Directive.[26] Article 42 required the Commission to report to the Council and European Parliament by 1 December 2009 on the implementation of the Directive in Member States, together with any proposals for amendments the Commission considered necessary.[27]

9.2 In October 2009, the Commission proposed the repeal of the 2005 Directive and its replacement by a "recast" Directive[28] which would remove some of the discretion currently enjoyed by Member States and establish a more uniform procedure and common guarantees for asylum applicants.[29]

9.3 In January 2010, the Government told the previous Committee that it had decided not to opt into the recast Directive because of its concerns that the changes proposed to the 2005 Directive would make it more difficult for the UK to manage its asylum system effectively. More recently, the Minister of State for Immigration at the Home Office (Damian Green) reported in August that negotiations on the recast Directive were difficult and contentious and demonstrated "a general reluctance on the part of Member States to abandon features of their asylum systems that they consider necessary in their national circumstances".[30]

The Commission's report on implementation

9.4 The report discharges the obligation imposed on the Commission by Article 42 of the 2005 Directive to assess the extent to which Member States have correctly transposed and are implementing the Directive, and to identify any problems. The Commission's assessment draws on Member States' responses to a Commission questionnaire, academic studies on national implementation of the 2005 Directive, and consultations with UNHCR, NGOs and asylum law experts.

9.5 The report states that most Member States have notified the measures taken domestically to implement the 2005 Directive (a requirement under Article 43), but that Belgium and Ireland have failed to do so. Greece has failed to implement several provisions correctly, with the consequence that the Commission intends to bring infraction proceedings against all three Member States.

9.6 The Commission then comments in some detail on the way each of the main provisions of the 2005 Directive has been implemented by Member States. Several examples of good practice are highlighted. For example, the Commission praises the UK and others for implementing the procedural guarantees set out in Articles 8-10 of the 2005 Directive "with sufficient clarity and detail". However, the most frequent observation concerns the degree of divergence in national asylum procedures which, the Commission suggests, results in a significant number of first instance asylum decisions being overturned on appeal. Examples cited in the report include:

  • the "highly divergent" circumstances in which Member States apply accelerated procedures to examine asylum claims;
  • "wide divergences" in the national designation of safe countries of origin, the UK designating 26 (non-EU) countries, France 18 and Denmark only two;
  • differences in Member States' approaches to the concept of a safe third country which "generally lack necessary details with respect to an individual examination of safety for a particular person"; and
  • differing time limits for lodging appeals and "widely divergent" rules for determining whether an individual may remain in a Member State pending the outcome of an appeal, which, the Commission says, affect asylum seekers' access to an effective remedy.

9.7 The Commission concludes that its evaluation:

"confirms that some of the Directive's optional provisions and derogation clauses have contributed to the proliferation of divergent arrangements across the EU, and that procedural guarantees vary considerably between Member States. This is notably the case with respect to the provisions on accelerated procedures, 'safe country of origin', 'safe third country', personal interviews, legal assistance, and access to an effective remedy. Thus important disparities subsist. A number of cases of incomplete and/or incorrect transposition and flaws in the implementation of the Directive have also been identified. The cumulative effect of these deficiencies may make procedures susceptible to administrative error".[31]

9.8 The divergences in national asylum procedures identified in the report are, in the Commission's view, a consequence of the "often vague and ambiguous standards" set out in the 2005 Directive and can thus only be addressed by means of legislative amendment.

The Government's view

9.9 In his Explanatory Memorandum of 24 September, the Minister of State for Immigration at the Home Office (Damian Green) tells us that the 2005 Directive was transposed into UK law by The Asylum (Procedures) Regulations 2007 and Part 11 of the Immigration Rules (HC 395), the first taking effect on 1 December 2007 and the second on 9 October 2006. He notes that the Commission's report has no direct policy implications for the UK and contains no new legislative proposals.

9.10 The Minister comments on the lateness of the report (nine months overdue) and the fact that its appearance postdates by several months the publication of a new draft Directive which would substantially amend, repeal and replace the 2005 Directive.

9.11 The Minister draws our attention to the "many positive comments directed at the UK and the way in which we have transposed and implemented the Procedures Directive into our own domestic framework."[32] For example, he says that the Commission has credited the UK as one of the few Member States to have implemented with sufficient clarity and detail the requirement for asylum applications to be examined individually, objectively and impartially. The Commission has also commented favourably on UK arrangements for providing an interpreter or interviewer of the same gender as the asylum applicant.

9.12 The Minister mounts a robust defence against a number of criticisms concerning UK implementation of the 2005 Directive, adding that the Government considers these to be "inaccurate and unjustified".[33] For example, he says that the Commission has misinterpreted UK policy on the extradition of asylum seekers and on the UK's approach to subsequent applications asylum (those made after the initial application has been finally rejected). He describes as "entirely inaccurate" the Commission's assertion that UK legislation on safe third countries does not provide that a third country must respect the principle of non-refoulement, and he rejects the suggestion that the criteria used by the UK to designate safe countries of origin are less rigorous than those provided for in the 2005 Directive.

9.13 The Minister contests the report's conclusion that the 2005 Directive has resulted in wide divergences in asylum procedures in Member States and poor decision making at first instance. He says that these views "are unsubstantiated by any evidence, as is the Commission's belief that further legislative amendments will rectify the existing inequalities between Member States' asylum procedures." He adds that the measures proposed in the recast Directive would introduce "even more complex and ambiguous procedures" than the 2005 Directive.


9.14 We share the Minister's concern at the delay in producing this report, nine months after the date prescribed in Article 42 of the 2005 Directive and nearly 11 months after publication of the Commission's proposal to repeal that Directive and replace it by a recast Directive which would incorporate some significant changes. Article 42 makes clear that the purpose of the report, and hence its principal value, is to evaluate Member States' implementation of the 2005 Directive with a view to proposing any necessary amendments. This seems to be a logical way of proceeding and we regret that a different course has been taken in this case.

9.15 That said, as the Minister takes issue with most of the shortcomings identified in the report which concern the UK's transposition of the 2005 Directive, we remain uncertain of the practical utility of this type of evaluation, especially if other Member States are equally vigorous in contesting the Commission's analysis. We therefore ask the Minister for his views on whether and how the evaluation of existing EU legislation could be made more robust so as to provide a solid foundation for identifying weaknesses in implementation and any need for further legislative amendments.

9.16 We note that the Minister particularly contests the report's conclusion — which suggests that the 2005 Directive has resulted in widely divergent asylum procedures, poor first instance decision making and a need for further legislative amendment — and says that it is "unsubstantiated by any evidence". The report's conclusion appears to be based on the Commission's main finding that, notwithstanding the introduction of minimum standards on asylum procedures by the 2005 Directive, there remains considerable diversity in the procedures applied in Member States and in the procedural guarantees available to asylum seekers as a result. We ask the Minister to explain whether (a) he accepts this finding, but contests the remedy proposed by the Commission (further legislative amendment of the 2005 Directive) or (b) considers the operation of the 2005 Directive to be satisfactory.

9.17 The Minister says that the report has no direct policy implications for the UK. He also reminds us that the UK has not opted into the recast Directive. That leads us to ask the Minister two further questions:

  • if the recast Directive is adopted without UK participation, does the Government consider that the UK will remain bound by the 2005 Directive; and
  • if the UK would remain bound, what is the likelihood that the Commission would bring infraction proceedings against the Government for some or all of the shortcomings in the UK's implementation of the 2005 Directive alleged in the report?

9.18 We shall keep the Commission's report under scrutiny pending the Minister's replies to our questions.

26   Except for the provisions in Article 15 on legal assistance and representation which had to be implemented by 1 December 2008. Back

27   The Commission produced a similar report on Member States' transposition of the 2004 Directive on the Asylum Qualifications Directive, see HC 428-i (2010-11), chapter 20 (8 September 2010). Back

28   The technique of "recasting" means the adoption of a new legal act which incorporates in a single text both the substantive amendments which it makes to an earlier act and the unchanged provisions of that act. The new legal act replaces and repeals the earlier act. Back

29   (31046) 14959/09: see HC 5-i (2009-10), chapter 3 (19 November 2009); HC 5-viii (2009-10), chapter 3 (27 January 2010); HC 5-xviii (2009-10), chapter 3 (7 April 2010) and HC 428-ii (2010-11), chapter 13 (15 September 2010). Back

30   Letter of 24 August 2010, see HC 428-ii (2010-11), chapter 13 (15 September 2010). Back

31   See paragraph 6 of the Commission's report.  Back

32   Minister's Explanatory Memorandum, paragraph 14.  Back

33   Minister's Explanatory Memorandum, paragraph 15. Back

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