European Scrutiny Committee Contents

20 Implementation of the Asylum Qualifications Directive



COM(10) 314

Commission Report on the application of Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection

Legal base
Document originated16 June 2010
Deposited in Parliament21 June 2010
DepartmentHome Office
Basis of considerationEM of 5 July 2010
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested


20.1 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 Qualifications Directive").[74] It contains chapters on:

  • the assessment of applications for international protection;
  • qualification for being a refugee;
  • refugee status;
  • qualification for subsidiary protection;
  • subsidiary protection status;
  • content of international protection (including rights to family unity, residence permits and access to employment, education, health care and social assistance); and
  • administrative cooperation between Member States and between them and the Commission.[75]

The Government opted into the Directive and so the UK is bound by its provisions.

20.2 The Qualifications Directive came into effect in October 2004. Article 37 required the Commission to make a report to the Council and the European Parliament by 10 April 2007 on the implementation of the Directive, together with any proposals for amendments the Commission considered necessary. Article 38 required Member States to bring into force, by 10 October 2006, the law and other provisions necessary to comply with the Directive.

20.3 In October 2009, the Commission proposed the repeal of the Qualifications Directive 2004 and its replacement by a new one.[76] It considered this necessary because, in the Commission's opinion, the minimum standards set by the 2004 Directive are vague and ambiguous.

20.4 In January 2010, the Government told the previous Committee that it had decided not to opt into the draft Directive because of its concerns about the likely effects of the proposals on the UK's asylum system. The Government is, however, taking part in the negotiation of the draft with a view to applying to be bound by the new Directive after its adoption if its concerns have been dealt with satisfactorily.[77]

The Commission's report on implementation

20.5 The Commission has produced the report in discharge of the obligation placed on it by Article 37 of the Qualifications Directive. The report gives the Commission's assessment of the extent to which Member States have correctly transposed the 2004 Directive into their domestic law and implemented its provisions. It also identifies some possible problems. The report is based on a study conducted at the Commission's request by the Academic Network for Legal Studies in Immigration and Asylum in Europe and on other studies by, for example, the UNHCR and the Dutch Refugee Council.

20.6 The report comments on the way each of the main provisions of the Directive has been transposed. The analysis is detailed. The Commission says, for example, that:

  • seven Member States did not transpose Article 4(4) and four Member States transposed it incorrectly (Article 4(4) requires Member States to regard previous persecution or serious harm as an indication of likely future persecution or serious harm unless there are good reasons to believe that the persecution or harm will not be repeated);
  • twelve Member States did not implement, or implemented only in part, the requirements of Articles 14(2) and 14(4) which place the burden of proof on Member States to demonstrate that a person has ceased to be or never was a refugee or eligible for subsidiary protection;
  • only three Member States implemented Articles 20(6) and 20(7) which give Member States discretion to reduce benefits where the protection was given on the basis of activities engaged in for the purpose of obtaining protection; and
  • the Commission began cases in the ECJ against nine Member States for failure to communicate or fully to communicate their transposition legislation; five of the cases were withdrawn; but the Court gave judgement in four cases, one of which was against the UK.

20.7 The Commission draws the following main conclusions:

  • the levels of protection granted by Member States differ;
  • the objective of creating "a level playing field" for the qualification and status of beneficiaries of international protection has not been achieved;
  • deficiencies in the drafting of the Qualifications Directive (such as imprecision and ambiguity) caused disparities in Member States' transposition and implementation of the Directive; and
  • the aim of the draft Directive the Commission proposed last autumn is to remedy the deficiencies in the 2004 Directive.

The Government's view

20.8 In his Explanatory Memorandum of 5 July, the Minister of State for Immigration at the Home Office tells us that the Qualifications Directive was transposed into UK law by The Refugee or Person in need of International Protection (Qualification) Regulations 2006 and Part 11 of the Immigration Rules (HC 395), both of which came into effect on 9 October 2006. He notes that the Commission's report contains no new proposals for EU legislation and says that it has "no direct policy implications".

20.9 The Minister adds that:

"In general the [Commission's] report suggests that the UK has fared well amongst its EU counterparts in transposing the Qualifications Directive".[78]

He draws our attention to the Commission's favourable comments about the way the UK has implemented some of the provisions. For example, the report notes that the UK goes above the minimum requirement for the length of residence permits issued to both refugees and beneficiaries of subsidiary protection; and that the UK provides refugees and beneficiaries of subsidiary protection equal access to integration facilities.

20.10 The Minister goes on to rebut the Commission's criticisms of the way in which the UK has implemented some of the Directive's provisions. For example, he says that:

"In their evaluation the Commission alleges in section 5.1.1 of the report that the UK's approach to assessing an applicant's 'general credibility' is more restrictive than allowed by the Directive 'because it raises the standard of the level of credibility required by Article 4(5)". We do not agree with this statement. Our assessment of credibility can be found in Part 11 of the Immigration Rules, under paragraphs 339I-339L, which transpose Article 4 of the Qualifications Directive accurately. In particular, the principle of 'the benefit of the doubt' required by Article 4(5) of the Directive is transposed by paragraph 339L of the Immigration Rules".[79]


20.11 It seems to us that the value of the Commission's report is much diminished by the delay in producing it. Article 37 of the Qualifications Directive required the Commission to report on the implementation of the Directive by10 April 2008. In the event, the report was not issued until June 2010, over two years after the due date and over eight months after the Commission published its proposal for the repeal and replacement of the 2004 Directive. The report offers no explanation for the delay.

20.12 Member States should, of course, transpose EU Directives promptly and accurately. There is, however, scope for difference of opinion about whether the transposition of a provision is or is not correct, as the Commission's report and the Minister's Explanatory Memorandum illustrate. Ultimately such differences can be resolved definitively only by the Court of Justice. It is not our function to express views on the disagreements between the Commission and the Government about the transposition of the Directive in the UK.

20.13 The Minister says that the Commission's report has "no direct policy implications". We should be grateful if he would enlarge on that statement. This is because the Government has not opted into the draft of the new Qualifications Directive and may not do so after it has been adopted. That leads us to ask the Minister two questions:

  • If the Government does not opt into the new Directive, will the UK remain bound by the 2004 Directive?
  • If it would remain bound, what is the likelihood that the Commission would initiate infraction proceedings against the Government for all or some of the matters criticised in the report?

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

74   Council Directive 2004/83/EC: OJ No. L 304, 30.09.04, p.12. Back

75   "Asylum" is granted to people who are unable to seek protection in their country of citizenship or residence for fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

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

76   (31043) 14863/09: see HC 5-i (2009-10), chapter4 (19 November 2009); HC 5-viii (2009-10), chapter 2 (27 January 2010); and HC 5-xviii (2009-10), chapter 2 (7 April 2010). Back

77   The previous Committee's summary of what the Government said about its concerns last January are summarised in paragraph 2.7 of our predecessors' Report of 27 January (see HC 5-viii (2009-10), chapter 2 (27 January 2010). Back

78   Minister's Explanatory Memorandum, paragraph 16.  Back

79   Ibid, paragraph 18. Back

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