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

3 Establishing a crisis relocation mechanism for individuals in need of international protection

Committee's assessment Legally and 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; the debate should take place before 9 November; drawn to the attention of the Home Affairs Committee
Document detailsProposal for a Regulation establishing a crisis relocation mechanism and amendisng Regulation (EU) No. 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person
Legal baseArticle 78(2)(e) TFEU; ordinary legislative procedure; QMV
DepartmentHome Office
Document Numbers(37088), 11843/15 + ADD 1, COM(15) 450

Summary and Committee's conclusions

3.1 In its Communication setting out A European Agenda on Migration, published in May, the Commission observed that asylum systems across the EU were fragmented, resulting in a lack of mutual trust between Member States which had fuelled public perceptions that EU rules for allocating responsibility for the examination of asylum claims were "fundamentally unfair".[ 21] The rules are based on a "hierarchy of criteria" set out in the "Dublin III" Regulation.[ 22] A Member State may be responsible under the Dublin rules if members of an asylum seeker's immediate family are already resident there, or if that Member State has issued a residence permit or visa. A default rule ensures that, if (as in most cases) none of these circumstances applies, the Member State through which an asylum seeker first entered the EU will be responsible for examining an asylum application. As a consequence, responsibility for identifying, registering and processing claims for asylum, and integrating those who have a valid claim for protection, often rests with a small number of exposed frontline Member States.

3.2 During 2015, the EU has experienced unprecedented flows across the Mediterranean, with the number of arrivals exceeding 500,000 by the end of September, placing particular pressure on Italy and Greece. To relieve the burden placed on their asylum systems, the Council has adopted two Decisions providing for the asylum applications of 160,000 individuals (mainly expected to be Syrians) who have clear protection needs to be transferred to other Member States through a mixture of voluntary commitments and mandatory quotas. These Decisions are based on a provision in the EU Treaties authorising the Council to adopt measures to address "an emergency situation characterised by a sudden inflow of nationals of third countries" and entail a temporary derogation from the Dublin rules.[ 23] The Government has not opted into either Decision and has made clear that it opposes relocation as a matter of principle.

3.3 The latest proposal put forward by the Commission would amend the Dublin III Regulation to establish a permanent framework for a new crisis relocation mechanism, obviating the need for a succession of temporary measures derogating from the Dublin rules. It is intended to give effect to the "principle of solidarity and fair sharing of responsibility" which underpins EU action in the field of asylum and immigration.[ 24] The UK participates fully in the Dublin III Regulation. The proposal to amend it is subject to the UK's Title V (justice and home affairs) opt-in. Under the UK's Title V Protocol, the UK is at risk of being ejected from a measure in which it participates if it decides not to opt into a subsequent amending measure.

3.4 The Minister for Countering Extremism (Lord Ahmad) reiterates the Government's opposition to relocation but notes that, unlike the Commission's earlier temporary relocation proposals, its latest proposal would amend a Regulation which the Government supports and which is binding for the UK. He considers the implications for the UK of remaining bound by the existing Dublin III Regulation, without opting into the amendments put forward by the Commission.

3.5 The Government pre-empted scrutiny by this House of its decision not to participate in the temporary relocation proposals put forward by the Commission in May and September. The case for an opt-in debate is all the more compelling in relation to this proposal, since the Government's opt-in decision may have implications for the UK's future participation in the Dublin III Regulation. Whilst we agree with the Minister that the risk of ejection from the Dublin III Regulation would not appear to be significant, should the Government decide not to opt into the proposed amending Regulation, it nevertheless is an important factor to consider in weighing the case for and against UK participation. Accordingly, we recommend that the Government's opt-in decision should be debated and that the debate should also encompass the Government's opt-in decisions on the Commission's separate proposals for a temporary relocation mechanism to relieve the immediate pressure on the asylum systems of Greece and Italy. We expect the debate to take place within the eight-week period envisaged in the Government's Code of Practice on scrutiny of opt-in decisions so that the House is able to inform and influence the Government's final opt-in decision.

3.6 The Minister reiterates the Government's opposition to relocation, but we take issue with his assertion that relocation is being used by the Commission as a tool to "address the illegal migration situation in the EU". It would be wholly inappropriate to use relocation for this purpose, given that the EU lacks competence to determine the volumes of admission of third country nationals.[ 25] Given the degree of public and political concern generated by the Commission's relocation proposals, it is imperative that the scope of the relocation mechanism — which is intended only to encompass individuals who are in clear need of international protection — is properly explained, even if implementation of the mechanism presents a number of challenges.

3.7 Whilst it seems unlikely that the Government will wish to opt into the permanent mechanism proposed by the Commission, we would nevertheless welcome some indication of the Government's views on the distribution key and the efficacy of the formula in implementing the principle of solidarity and fair sharing of responsibility. We also ask the Minister whether he considers it appropriate for the Commission to determine, by delegated act, whether a crisis situation exists and how many individuals should be relocated.

3.8 We note that the permanent relocation mechanism does not include provision for a lump sum payment of ?6,000 for each relocated individual. We ask the Minister whether this is a deliberate omission and, if so, how relocation will be funded.

3.9 Finally, given that the Council, with some difficulty, has recently agreed two Decisions providing for the relocation of up to 160,000 individuals on the basis of a temporary mechanism, we ask the Minister whether there might be some merit in delaying immediate and contentious changes to the Dublin III Regulation pending the publication of an evaluation of its operation in July 2016.

3.10 Pending the opt-in debate and the Minister's response to the questions we have raised, the proposal remains under scrutiny. We draw it to the attention of the Home Affairs Committee.

Full details of the document: Proposal for a Regulation establishing a crisis relocation mechanism and amending Regulation (EU) No. 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person: (37088), 11843 + ADD 1, COM(15) 450.


3.11 The Dublin III Regulation forms part of a broader range of measures which are intended to establish a common European asylum system. The successful application of the Dublin rules is premised on the assumption that asylum standards and reception conditions are broadly comparable throughout the EU, and that procedures for examining claims and determining who qualifies for protection will produce the same outcome. The reality is somewhat different. Dublin transfers to Greece are currently suspended because of systemic deficiencies in its asylum system, following a ruling of the European Court of Human Rights in MSS vs Belgium and Greece[ 26] and the Court of Justice of the European Union in NS vs UK.[ 27] In September, the Commission announced that it was bringing enforcement action against 19 Member States for their failure to implement fully various EU asylum measures adopted between 2011 and 2013 harmonising standards on who qualifies for protection, the procedures applicable to asylum claims, and the reception conditions to be afforded to asylum seekers and refugees.[ 28] The UK does not take part in these measures, but participates fully in the Dublin III Regulation and in the related Eurodac Regulation which establishes a fingerprint database and is considered a key element of the Dublin system.

3.12 The legal base for the Dublin III Regulation, and for the amending Regulation proposed by the Commission, is Article 78(2)(e) of the Treaty on the Functioning of the European Union (TFEU). This provides for the adoption of "criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection". It is intended to implement Article 78(1) TFEU which authorises the EU to develop a common policy on asylum, subsidiary protection and temporary protection which seeks to offer "appropriate status to any third country national requiring international protection" and to ensure compliance with the principle of non-refoulement.[ 29]

3.13 Two forms of international protection are available under EU law. Refugee status is accorded to those with a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Subsidiary protection is available to those who do not qualify as refugees but for whom there are substantial grounds for believing that they would face a real risk of serious harm if returned to their country of origin. Serious harm includes "serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict".[ 30] The principle of non-refoulement prevents Member States from returning an individual to a third country in which he or she would be at risk of persecution or other serious harm.

3.14 The Dublin rules operate independently of the Schengen acquis — the body of rules underpinning the Schengen free movement area. Nevertheless, the inability or unwillingness of some Member States to apply the Dublin rules, when faced with a surge of new arrivals at their borders, has led to the reintroduction of checks and controls at some internal borders. These are intended to deter or prevent secondary movements within the European Union and are allowed under the Schengen Borders Code, provided they operate on a temporary basis and as a last resort in circumstances where there is a serious threat to public policy or internal security.[ 31] Any restrictions on free movement must be proportionate and "strictly necessary" to respond to the threat and Member States must comply with the procedures set out in the Borders Code.

3.15 Four Member States — the Czech Republic, Hungary, Romania and Slovakia — voted against (but were unable to block) the adoption of a recent Council Decision establishing mandatory quotas for the temporary relocation of 120,000 individuals in clear need of international protection. The Slovak Parliament has since issued a Reasoned Opinion on the Commission's latest proposal for a permanent relocation mechanism.[ 32] The Reasoned Opinion questions whether the EU has the competence to introduce a permanent mechanism, asserts that the existing criteria for determining responsibility contained in the Dublin III Regulation do not need to be amended, and suggests that the changes proposed would be ineffective in reducing migratory flows to the EU and in preventing secondary movements between Member States.

The proposed amending Regulation

3.16 Chapter VI of the Dublin III Regulation concerns the procedures for determining the Member State responsible for examining an application for international protection. The Commission proposal would add a new Section VII establishing a crisis relocation mechanism which, when triggered, would authorise Member States to derogate from the usual Dublin criteria for allocating responsibility.


3.17 The proposal would introduce a new Article 33a setting out the circumstances in which the crisis relocation mechanism would apply, based on the following elements:

·  the beneficiary Member State "is confronted with a crisis situation […] due to extreme pressure characterised by a large and disproportionate inflow of third country nationals or stateless persons";

·  these inflows place "significant demands on its asylum system" and jeopardise the application of the usual Dublin rules for determining responsibility; and

·  the crisis is "of such a magnitude as to place extreme pressure even on a well-prepared asylum system which is functioning in line with all relevant aspects of the EU asylum acquis, also taking account of the size of the Member State concerned".

3.18 The proposal entrusts the Commission with the task of establishing whether the crisis relocation mechanism should apply, acting on the basis of "substantiated information" gathered by the European Asylum Support Office (EASO) and the EU's External Borders Agency, Frontex. The Commission is authorised to adopt delegated acts confirming that there is a crisis situation, determining the number of individuals to be relocated on the basis of a distribution key, and indicating the period during which the crisis relocation mechanism will apply.

3.19 The proposal sets out the factors which the Commission is required to take into account in determining that a crisis situation exists and the number of individuals eligible for relocation from the beneficiary Member State. They include:

·  the number of irregular entries and applications for international protection in the preceding six months;

·  the scale of the increase in numbers;

·  the number of applications for international protection relative to the population size of the beneficiary Member State and to the EU average; and

·  the capacity of the asylum system in the beneficiary Member State and the extent to which it has participated in, or benefited from, previous EU solidarity measures.

3.20 The proposal caps the number to be relocated from the beneficiary Member State at 40% of the number of applications for international protection lodged in the previous six months.


3.21 Eligibility for relocation is limited to nationals of third countries generating an asylum recognition rate at first instance of at least 75%, based on the latest EU-wide average Eurostat data, and who have lodged an application for international protection in the Member State designated as a beneficiary of the relocation mechanism.

3.22 The rules governing relocation procedures are set in in a proposed new Annex IV to the Dublin III Regulation. They specify that:

·  the beneficiary Member State must have the necessary facilities in place to identify, register and fingerprint those eligible for relocation;

·  only applicants who have cooperated in providing fingerprints for transmission to the Eurodac database are eligible to be relocated;

·  priority must be given to vulnerable applicants and to maintaining family unity;

·  individuals eligible for relocation must be notified of their Member State of destination, but have no right to express a preference — by contrast, recital (14) of the proposal states that Member States of relocation may indicate their preferences based on "the specific qualifications and characteristics of the applicants concerned, such as their language skills and other individual indications based on demonstrated family, cultural or social ties which could facilitate their integration"; and

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

3.23 The procedures also provide for the appointment of national contact points to liaise with the beneficiary Member State, the EASO and other relevant EU Agencies and establish time limits for the completion of the relocation process.

3.24 A number of recitals to the proposal seek to address the risk of so-called secondary movements from the Member State of relocation to other Member States. In addition to informing individuals that the rights attached to their protection status are only valid in the Member State of relocation, and that they do not enjoy a right of free movement, the recitals suggest that Member States may wish to consider imposing reporting obligations and providing food, clothing and other material reception conditions "in kind" rather than in cash to reduce the incentives to move.


3.25 The Commission proposes a mandatory distribution key based on the following weighted formula:

·  Population size (40% weighting);

·  Total GDP (40% weighting);

·  Average number of applications for international protection per million inhabitants during the preceding five years, capped at 30% of the population and GDP effect (10% weighting); and

·  Unemployment rate, also capped at 30% of the population and GDP effect (10% weighting).[ 33]

3.26 The proposal includes provision for a Member State, "in exceptional circumstances", to opt out of the crisis relocation mechanism, or limit its participation, for one year provided it justifies its request on grounds that remain compatible with the fundamental values of the EU.[ 34] In such circumstances, it will be required to make a financial contribution to the EU Asylum, Migration and Integration Fund of up to 0.002% of its GDP. The quota of individuals allocated to that Member State will be re-distributed amongst the remaining Member States participating in the crisis relocation mechanism.


3.27 Once the decision has been taken to trigger the crisis relocation mechanism, the beneficiary Member State is required to present a roadmap demonstrating that the necessary measures are in place to implement the mechanism. The mechanism can be suspended if the beneficiary Member State fails to ensure appropriate implementation.


3.28 The UK's Title V opt-in Protocol (Protocol No. 21 to the EU Treaties) applies to proposals amending existing measures by which the UK is already bound. In such cases, the UK is at risk of being ejected from the existing measure if it decides not to opt into a subsequent amending proposal. The risk only materialises if the remaining Member States, acting on a Commission proposal, determine that the UK's non-participation in an amending proposal would make the existing measure — in this case, the Dublin III Regulation — inoperable for them or for the EU.[ 35]

3.29 In its explanatory memorandum accompanying the proposed amending Regulation, the Commission indicates (in a footnote) that "the fact of not participating in the amending Regulation would not appear to make the application of the Dublin Regulation as amended inoperable in the sense of Article 4a of Protocol 21".[ 36]


3.30 The recitals to the amending Regulation proposed by the Commission note that a comprehensive evaluation of the Dublin rules is underway and "could lead to a wider revision of the Dublin system".[ 37] The Dublin III Regulation took effect in January 2014. It includes a provision on monitoring and evaluation which requires the Commission to report on the application of the Regulation and, where appropriate, propose amendments, by 21 July 2016.

The Minister's Explanatory Memorandum of 30 September 2015

3.31 The Minister (Lord Ahmad) notes that the proposed amending Regulation is subject to the UK's Title V opt-in and that the deadline for notifying the EU institutions of the UK's opt-in decision expires on 8 December. He adds that, under the terms of the Government's Code of Practice on scrutiny of Title V opt-in decisions, Parliament has until 9 November to express a view on the opt-in before the Government reaches a final decision.[ 38]

3.32 The Minister explains that the Government has not opted into the two temporary relocation measures already proposed by the Commission and "remains opposed to the use of relocation to address the illegal migration situation in the EU".[ 39] He continues:

    "However, as this proposal concerns the introduction of an amendment to the Dublin Regulation in which we participate and which we support, we will need to consider the implications of being partially, but not fully involved with the Dublin Regulation."[ 40]

3.33 The Minister welcomes and agrees with the Commission's assessment that a decision by the UK (or Ireland) not to opt into the proposed amending Regulation would not make the amended Dublin III Regulation inoperable for other Member States or the EU. He notes that the normal Dublin III rules would continue to apply "in the vast majority of circumstances". Even in times of crisis, the usual rules for determining responsibility would still apply to cases which exceed the quotas established under the relocation mechanism or which are not within the scope of the mechanism.

3.34 Furthermore, the Minister explains that the amendments proposed to the Dublin III Regulation are consistent with the broader Dublin principle of identifying a single Member State responsible for examining each individual's claim for international protection. He continues:

    "Where the relocation mechanism has been used and a Member State has accepted responsibility […], if the individual arrived in the UK and the Dublin Regulation applied we would simply transfer the applicant to that responsible Member State. No matter how it is derived, by the normal mandatory responsibility rules, by a Member State exercising its national discretion to take responsibility under the so-called 'sovereignty clause' (in Article 17(1) of the Regulation) or as a result of a crisis relocation, the single responsible Member State has been determined."[ 41]

3.35 The Minister concludes that the operability of the Dublin III Regulation would not be affected, were the Government to decide not to opt into the proposed amending Regulation, and that the UK "is not at any significant risk of being ejected".[ 42]

3.36 The Minister notes that the European Parliament has not yet established its position on the Commission proposal but that there is "clearly a desire to move quickly on all measures relating to the migratory pressures in Europe".[ 43]

Previous Committee Reports

None, but the following Reports on the Commission's temporary relocation proposals 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).

21   See (36877), 8961/15: Second Report HC 342-ii (2015-16), chapter 1 (21 July 2015). Back

22   So-called because it is the third iteration of the Dublin rules. The rules were first set out in the intergovernmental Dublin Convention 1990 (which entered into force on 1 September 1997) and then brought within the framework of the EC Treaty by the Dublin II Regulation in 2003. Back

23   See Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). Back

24   See Article 80 TFEU.  Back

25   See Article 79(5) TFEU which makes clear that it is for Member States to determine the volumes of admission of third country nationals coming to their territory from third countries. Back

26   See the judgment in MSS vs Belgium and Greece. Back

27   See the judgment in NS vs UK. Back

28   See the Commission's press release dated 23 September 2015. Back

29   See Article 78(1) TFEU. Back

30   Article 15 of the 2011 Qualifications Directive. Back

31   See Regulation (EU) No. 1051/2013 on the temporary re-introduction of internal border controls. Back

32   See the Resolution of 30 September approving the Reasoned Opinion. Back

33   See the proposed new Annex III to the Dublin III Regulation. Back

34   Article 2 of the Treaty on European Union (TEU) sets out the EU's common values. They include "respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities". Article 2 also includes reference to pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women. Back

35   See Protocol No. 21 to the EU Treaties on the Position of the UK and Ireland in respect of the Area of Freedom, Security and Justice. Back

36   See p.4 of the Commission's explanatory memorandum. Back

37   See recital (6). Back

38   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

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

40   Ibid. Back

41   See para 21 of the Minister's Explanatory Memorandum. Article 17(1) of the Dublin III Regulation allows a Member State to derogate from the usual Dublin rules and assume responsibility itself for examining an application for international protection. Back

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

43   See para 25 of the Minister's Explanatory Memorandum. Back

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Prepared 14 October 2015