9 Implementation of the Asylum Procedures
Directive
| (31932)
13404/10
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
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| Legal base | —
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| Document originated | 8 September 2010
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| Deposited in Parliament | 13 September 2010
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| Department | Home Office
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| Basis of consideration | EM of 24 September 2010
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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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
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.
Conclusion
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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