20 Implementation of the Asylum Qualifications
Directive
| (31722)
11212/10
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 originated | 16 June 2010
|
| Deposited in Parliament | 21 June 2010
|
| Department | Home Office
|
| Basis of consideration | EM of 5 July 2010
|
| Previous Committee Report | None
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally important
|
| Committee's decision | Not cleared; further information requested
|
Background
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]
Conclusion
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
| 
