Documents considered by the Committee on 14th October 2015 - European Scrutiny Contents

2 Relocation of individuals in need of international protection (second Commission proposal)

Committee's assessment Politically important
Committee's decisionNot cleared from scrutiny; opt-in decision recommended for debate on the floor of the House at the same time as the opt-in debate on Council document 9355/15 recommended on 21 July 2015; drawn to the attention of the Home Affairs Committee
Document detailsProposal for a Council Decision establishing provisional measures in the area of international protection for the benefit of Italy, Greece and Hungary
Legal baseArticle 78(3) TFEU; QMV; EP consultation
DepartmentHome Office
Document Numbers(37089), 11844/15 + ADD 1, COM(15) 451

Summary and Committee's conclusions

2.1 This is the Commission's second proposal for a Council Decision establishing a temporary mechanism for the relocation of individuals who have arrived in the EU in recent months and are in clear need of international protection. The first proposal was adopted on 14 September and provides for the relocation of 40,000 individuals — 24,000 from Italy, 16,000 from Greece — to other Member States over a two-year period. This second proposal provides for the relocation of an additional 120,000 individuals from three frontline Member States — Greece, Italy and Hungary. Both proposals have the same legal base and are subject to the same voting rule, but the first was agreed by consensus, the second by a qualified majority vote at a special meeting of the Justice and Home Affairs Council on 22 September. Amidst well-publicised acrimony, four Member States — the Czech Republic, Hungary, Romania and Slovakia — voted against. Hungary made clear that it did not wish to be considered a frontline Member State and that it would not, as a consequence, take up the quota of 54,000 individuals which the Commission had proposed should be relocated from its territory. Instead, this quota will be shared at a later stage between Italy and Greece, or other Member States facing "massive inflows of third country nationals", and Hungary will be required to accept a quota of individuals relocated to its territory from Italy and Greece.

2.2 The Commission's relocation proposals are subject to the UK's Title V (justice and home affairs) opt-in. In both cases, the Government's decision not to opt in was communicated by means of a footnote to Council Conclusions, without any prior scrutiny by the House.[ 5]

2.3 The Minister for Countering Terrorism (Lord Ahmad) reiterates the Government's opposition to relocation and expresses regret that the urgency of the migration crisis in the EU meant that it was not possible to consult Parliament on the Government's opt-in decision.

2.4 We note the Minister's expression of regret that it was not possible to consult Parliament on the Government's opt-in decision, but question its validity. As he will be aware, we recommended an opt-in debate on the Commission's first relocation proposal at our first meeting on 21 July, making clear that the debate should be scheduled for the September sitting of Parliament. The Commission's second relocation proposal raises identical issues. The Government had ample opportunity to seek Parliament's views on the principle of relocation before either of the Commission's relocation proposals were formally adopted on 14 and 22 September but chose not to do so. We consider that on an issue of such importance, the views of Parliament must be heard. We therefore confirm the opt-in debate recommendation we made on 21 July and request that the debate should take place at the earliest opportunity and encompass the Government's opt-in decisions on both of the Commission's relocation proposals.

2.5 The Minister's Explanatory Memorandum sets out a number of reasons why the Government considers that opting into the relocation proposals would not be in the national interest. One reason he cites is the risk that relocation may operate as a "pull factor", encouraging more migrants ("both refugees and economic migrants") without addressing the causes of illegal migration. We ask the Minister to provide further information on the nature of the flows experienced in the Mediterranean and Western Balkans during 2015, including his estimate of the proportion likely to qualify for some form of international protection and the proportion likely to be considered as economic migrants. We also ask the Minister whether he accepts that those with clear protection needs should not be categorised as illegal migrants.

2.6 We would welcome further information on the nationalities eligible for relocation. The Minister suggests it would only be nationals of Syria and Eritrea, but we understand that the asylum recognition rate for Iraqi nationals also exceeds 75%.

2.7 Finally, we note the Minister's view that the Decisions on relocation that have now been agreed by the Council will have no financial impact on the UK as it has not opted in. We ask the Minister to explain how the temporary relocation mechanism will be funded and what arrangements are in place to ensure that there are no unforeseen financial implications for the UK.

2.8 The proposal remains under scrutiny pending the opt-in debate we have requested on this and the Commission's first relocation proposal which we Reported on in July. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the document: Proposal for a Council Decision establishing provisional measures in the area of international protection for the benefit of Italy, Greece and Hungary: (37089), 11844/15 + ADD 1, COM(15) 451.


2.9 Our earlier Reports, listed at the end of this chapter, describe the humanitarian crisis confronting the EU and the range of measures proposed by the Commission to help frontline Member States cope with the surge in numbers crossing the Mediterranean. The numbers continue to grow, with the latest data from the International Organisation for Migration indicating that there have been more than 500,000 arrivals in 2015 and nearly 3,000 deaths at sea.[ 6] More than two-thirds of those crossing the Mediterranean have arrived in Greece, but many have continued their journey northwards through Macedonia and Serbia to Hungary. The volume of arrivals has created unprecedented pressures on the asylum systems of frontline Member States and, the Commission suggests, "stretched to their limits" the capacity of these States to receive and process the new arrivals. The Commission's relocation proposals are intended to ensure "a fair and balanced participation of all Member States" in managing the flow of individuals who, because of their nationality, appear to be in clear need of international protection.[ 7]

The proposed Council Decision

2.10 The Commission published its proposal to relocate 120,000 individuals in clear need of international protection from Italy (15,600), Greece (50,400) and Hungary (50,400) on 9 September. It was rapidly superseded by a revised text[ 8] which was adopted at a special meeting of the Justice and Home Affairs Council on 22 September.[ 9]


2.11 The Commission proposal is based on Article 78(3) of the Treaty on the Functioning of the European Union (TFEU) which provides for the adoption of provisional measures to assist "one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries". Given the temporary and urgent nature of the measures envisaged, the ordinary legislative procedure involving both the Council and the European Parliament does not apply. The Council is, however, required to consult the European Parliament and is authorised to act by a qualified majority vote.

2.12 Many elements of the Commission's second relocation proposal replicate the Decision adopted by the Council on 14 September to relocate 40,000 individuals from Italy and Greece to other Member States.[ 10] Details of the general approach on which the Council Decision is based are contained in our Third Report, agreed on 9 September. The main areas of similarity are:

·  Eligibility for relocation is limited to nationals of third countries generating an asylum recognition rate of at least 75%, based on EU-wide average Eurostat data — the latest data indicate that nationals of Syria, Eritrea and Iraq will be eligible.[ 11]

·  Relocation is only available to those eligible nationalities who have lodged an application for international protection in one of the Member States designated as a beneficiary of the relocation mechanism and who have cooperated in providing fingerprints for transmission to the Eurodac database.

·  The beneficiary Member States must ensure that they have the necessary facilities in place to identify, register and fingerprint those eligible for relocation — in return, they are entitled to expect increased operational support from other Member States and EU Agencies to screen new arrivals, assist with relocation, and help prepare and organise the return of those individuals who have not sought, or do not qualify for, international protection.

·  Priority should be given to vulnerable applicants, to preserving family unity, and to ensuring the best interests of children.

·  Member States are only entitled to refuse to accept an individual proposed for relocation on duly justified grounds of national security or public order.

·  Individuals eligible for relocation must be given information to help them understand the relocation procedure, but have no choice in their Member State of destination.

·  Member States qualify for a lump sum payment of ?6,000 (£4,400) for each individual relocated to their territory.

·  The temporary relocation mechanism is intended to apply for two years.

2.13 Despite these similarities, there are important differences between the first relocation Decision and the Commission's second proposal. The later proposal includes within its scope Hungary, in addition to Italy and Greece, to reflect the exponential increase in irregular border crossings at Hungary's border with Serbia and in the number of individuals applying for international protection during the summer months.[ 12] According to the Commission, insufficient resources to develop adequate reception capacity and asylum processes to meet current demand mean that Hungary, Italy and Greece have become transit countries:

    "A further measure for relocation from these three Member States is justified on the basis of the continued migratory pressures faced by all three Member States and the fact that most persons arriving at the external borders of the EU are seeking protection elsewhere because of the challenging environments they find themselves in upon arrival in Italy, Greece and Hungary."[ 13]

2.14 The Commission's second proposal retains the distribution key which it included in its first relocation proposal and which was rejected by the Council. The distribution key is intended to ensure a fair sharing of responsibility by taking into account four criteria of variable weighting, the first two covering population size and GDP (both given a 40% weighting) and the second two the number of asylum applications per one million inhabitants (averaged over a four-year period) and the unemployment rate (both given a 10% weighting).

2.15 In addition, the Commission's second proposal includes provision for Member States that are unable to meet some or all of their allocation of relocated individuals to make a financial contribution instead, with the funding used to supplement the EU Asylum, Migration and Integration Fund.[ 14] It also provides for Italy, Greece and Hungary to receive a lump sum of ?500 (£367) covering the costs of transfer for each individual to be relocated from their territory.

The revised text

2.16 The European Parliament agreed an emergency Resolution on 17 September approving the Commission proposal to relocate 120,000 individuals in clear need of international protection from Greece, Italy and Hungary, but asked to be consulted again if the final text adopted by the Council substantially amended the Commission proposal.[ 15]

2.17 The Justice and Home Affairs Council adopted a revised text on 22 September which differs in a number of material respects from the Commission proposal. The principal changes are:

·  The removal of Hungary as one of the designated frontline Member States to benefit from relocation — as a consequence, Hungary is included amongst the Member States expected to receive an allocation of individuals relocated from Italy and Greece.

·  The inclusion of a new provision specifying that the 54,000 individuals who were to have been relocated from Hungary should, instead, either be relocated from Italy and Greece at a later stage or from any other frontline Member State facing "massive inflows of third country nationals" — in both cases, relocation would require a further Council decision.

·  The removal of the Commission's proposed distribution key to determine each Member State's allocation of relocated individuals.

·  The removal of a provision enabling Member States, in exceptional circumstances, to opt out of the relocation mechanism for a period of one year in exchange for a financial contribution — the revised text only allows a Member State to request a reduction of up to 30% of the number of individuals allocated to it and an extension of the time limit for relocating the remaining individuals.

2.18 The agreed text stipulates that the temporary relocation mechanism will apply for a period of two years from the date on which the Council Decision enters into force, but includes within its scope individuals arriving in Italy or Greece since March 2015.

The Minister's Explanatory Memorandum of 30 September 2015

2.19 The Minister (Lord Ahmad) explains that the proposal is subject to the UK's Title V (justice and home affairs) opt-in and that, in normal circumstances, the deadline for notifying the EU institutions of the Government's opt-in decision would be 8 December. Under the Government's Code of Practice governing scrutiny of opt-in decisions, Parliament would have until 9 November to express a view on the opt-in before the Government reaches a final decision.[ 16] He continues:

    "However, both deadlines have unfortunately been made academic by the early adoption of the proposal. The Council adopted the proposal urgently because of the current migration crisis in the EU. Regrettably, this means that it has not been possible to consult Parliament on the opt-in decision in the usual way."[ 17]

2.20 Opt-in decisions are taken on a case-by-case basis, placing "the national interest at the heart of the decision-making process". The Minister reiterates the Government's opposition to relocation, describing it as "the wrong response to the unprecedented migratory pressures" and adding:

    "The Government will not opt into relocation proposals, whether mandatory or voluntary, because it is not in the national interest and due to concerns about its unintended consequences."[ 18]

2.21 The Minister also makes clear that the Government "is not minded" to seek to opt into the temporary relocation mechanism now that it has been formally adopted. He considers that relocation:

    "undermines the important principle that asylum should be claimed in the first safe country, does not address the causes of illegal migration and simply moves the problem around Europe. It may act as a pull factor, encouraging more migrants, both refugees and economic migrants, to make dangerous journeys to the EU. It could also allow some Member States to avoid their responsibilities in developing and operating effective border and asylum systems. Protracted negotiations on relocation have also absorbed time and effort that in the Government's view could have been better spent on more pressing issues such as addressing the causes of migration, combating the criminality that puts lives at risk and tackling abuse of the EU asylum system."[ 19]

2.22 The Minister indicates that the relocation mechanism is only expected to apply to nationals of Syria and Eritrea as these nationalities are the only ones which exceed an asylum recognition rate at first instance of 75% across the EU.[ 20]

2.23 The Minister notes that several Member States expressed concern at the Commission's relocation proposals and that Finland abstained in the vote taken at the special Justice and Home Affairs Council on 22 September while the Czech Republic, Hungary, Romania and Slovakia voted against. As the UK has not opted into the relocation proposals, the Minister says that there will be no financial impact for the UK.

Previous Committee Reports

None, but the following Reports concerning the Commission's first relocation proposal are relevant: Second Report HC 342-ii (2015-16), chapter 3 (21 July 2015) and Third Report HC 342-iii (2015-16), chapter 8 (9 September 2015).

5   See the Conclusions agreed by the European Council on 25/26 June and the Presidency Conclusions published on 14 September.  Back

6   See the IOM's Mediterranean Update. Back

7   See p.1 of the Commission's explanatory memorandum accompanying the proposed Council Decision. Back

8   The revised text agreed by the Justice and Home Affairs Council on 22 September 2015. Back

9   See the Presidency summary of the outcome of the Council. Back

10   See Council Decision (EU) 2015/1523. Back

11   See the latest Eurostat statistics. Back

12   The Commission's explanatory memorandum accompanying the proposed Council Decision notes that there has been an increase of 1,290% in applications for international protection received by Hungary between January and end July 2015 compared with the same period in 2014. Back

13   See p.3 of the Commission's explanatory memorandum accompanying the proposed Council Decision. Back

14   The contribution envisaged is 0.002% of a Member State's GDP, although the sum would be reduced in proportion to the number of individuals actually relocated. Back

15   See the EP's legislative Resolution of 17 September 2015.  Back

16   The Code of Practice on scrutiny of Title V opt-in and Schengen opt-out decisions is reproduced as Annex S to the Cabinet Office's Guidance on Parliamentary scrutiny of EU documents. The Code of Practice reflects undertakings given by Baroness Ashton in a Written Ministerial Statement of 9 June 2008 which are intended to ensure that Parliament has an eight-week period following the publication of a Title V or Schengen measure in which to express a view on the opt-in or opt-out decision to be taken by the Government. Back

17   See para 12 of the Minister's Explanatory Memorandum. Back

18   See para 13 of the Minister's Explanatory Memorandum. Back

19   See para 13 of the Minister's Explanatory Memorandum. Back

20   See para 9.v.of the Minister's Explanatory Memorandum. Back

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Prepared 14 October 2015