3 Establishing a crisis relocation mechanism
for individuals in need of international protection
Committee's assessment |
Legally and politically important |
Committee's decision | Not 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
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Document details | Proposal 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
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Legal base | Article 78(2)(e) TFEU; ordinary legislative procedure; QMV
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Department | Home Office |
Document Numbers | (37088), 11843/15 + ADD 1, COM(15) 450
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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.
Background
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.
WHEN WOULD THE CRISIS RELOCATION MECHANISM APPLY?
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.
WHO WOULD BE ELIGIBLE FOR RELOCATION?
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.
HOW WOULD THE QUOTAS FOR RELOCATION BE CALCULATED?
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.
OBLIGATIONS ON THE BENEFICIARY STATE
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.
THE UK'S POSITION
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]
A WIDER EVALUATION OF THE DUBLIN RULES
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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