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EU Asylum Reform Contents

1Revision of EU rules on who qualifies for international protection

Committee’s assessment

Politically important

Committee’s decision

Not cleared from scrutiny; further information requested; opt-in decision recommended for debate on the floor of the House before the expiry of the UK’s three month opt-in deadline on 1 December 2016; drawn to the attention of the Home Affairs Committee

Document details

Proposal for a Regulation on standards for determining who qualifies for international protection, a uniform status for refugees or individuals eligible for subsidiary protection, and the content of the protection granted

Legal base

Articles 78(2)(a) and (b) and 79(2)(a) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Numbers

(37967), 11316/16 + ADD 1, COM(16) 466

Summary and Committee’s conclusions

1.1The migration and refugee crisis continues to dominate the EU’s political agenda and has exposed weaknesses in the design and implementation of the common European asylum system—a body of EU laws which is intended to ensure that asylum standards and reception conditions are broadly comparable across the EU and that procedures for examining claims and deciding who qualifies for international protection will produce the same outcome.4 These laws are underpinned by the Dublin system, a set of procedural rules supported by an asylum database (Eurodac) which allocate responsibility for each application for international protection made within the EU to a single Member State—usually the Member State through which an individual first entered the EU.

1.2Despite this substantial body of EU law, the EU’s asylum system remains fragmented. Differences persist in the procedures applied by Member States, the reception conditions provided to individuals while their applications for international protection are examined, the number and characteristics of those who qualify for protection and the rights available to those who are granted protection. The Commission considers that these differences are capable of creating “pull factors” which draw asylum seekers towards Member States with higher asylum recognition rates and reception standards. Secondary movements of irregular migrants within the EU reached “unprecedented levels” in 2015 as many of those entering the EU through Greece and Italy travelled onto more favoured destinations elsewhere in the EU.5

1.3In a Communication on the reform of the common European asylum system published in April, the Commission sketched out its ideas for “an integrated, sustainable and holistic EU migration policy” which is “humane and efficient” and based on “a fair sharing of responsibilities”.6 It proposed a first phase of reforms in May which focuses on changes to the Dublin system and the transformation of the European Asylum Support Office into the European Union Agency for Asylum with stronger powers to monitor and improve the overall functioning of the common European asylum system.7

1.4The Commission has recently published its second (and final) phase of reform proposals which set out changes to substantive EU asylum laws determining who qualifies for international protection, the procedures applicable to asylum claims and how asylum seekers are to be treated while their claims are being examined. The package also includes a proposal for a structured EU resettlement framework which is intended to reduce the flow of irregular migrants by providing safe and legal pathways to the EU for third country nationals who are in need of international protection. All of the proposals are subject to the UK’s Title V (justice and home affairs) opt-in, meaning that the UK will only be bound by them if the Government decides to opt in.

1.5Introducing the new proposals, the Commission’s First Vice-President (Frans Timmermans) highlighted the need for an asylum system which is both “effective and protective”. The Commissioner for Migration (Dimitris Avramopoulos) added that the objective of the reform proposals is to “have a common system which is quick, efficient and based on harmonised rules and mutual trust between Member States”.8 The Commission emphasises the interdependence of the measures it has proposed which are intended to ensure “full convergence between national asylum systems”, reduce incentives for secondary movements within the EU, strengthen mutual trust between Member States, and function effectively “in times of calm and crisis”.9

1.6In this chapter, we consider the changes proposed to the 2011 EU Qualification Directive which sets out common standards for determining who qualifies for international protection and the rights conferred on beneficiaries of international protection.10 The Commission believes that “applicants for international protection must have the same chance of obtaining the same form of protection, or having their claim rejected, irrespective of where they apply for asylum in the Union”.11 It anticipates that the changes it is proposing will produce greater convergence in asylum recognition rates across the EU by requiring Member States to apply fully harmonised criteria when examining an application for international protection and take into account country of origin information produced by the proposed EU Agency for Asylum. The proposal also harmonises the rights accorded to beneficiaries of international protection, requires more frequent “status reviews”, and includes stricter rules to discourage secondary movements.12

1.7The Immigration Minister (Mr Robert Goodwill) says that the Government is considering EU proposals which are subject to the UK’s Title V opt-in “in light of the EU referendum result” and will inform us of its approach “shortly”. Meanwhile, he sets out the factors which the Government will take into account in deciding whether or not to opt into the proposed Regulation and the Government’s position on “the main thematic areas” covered by the proposal. He recognises the importance of “consistent asylum processes that balance the rights of applicants with the ability of Member States’ national authorities to determine asylum claims and tackle abuse” but suggests that the shift from a standard-setting Directive which allows Member States to “make accommodations when transposing the provisions to reflect their national law” to a directly applicable Regulation “has profound implications for national sovereignty”.13

1.8The UK’s patchwork participation in EU asylum measures complicates the task of analysing the impact of the proposed Regulation on asylum law and practice in the UK. If the Government decides to opt into the proposal, we expect the Minister to provide a full analysis of the changes that would be needed to bring UK law into line with common EU standards, as well as his assessment of their overall impact on international protection standards in the EU.

1.9The Minister broadly supports the objectives underpinning the Commission’s proposed reforms, notably discouraging “asylum shopping” and secondary movements between Member States, as well as securing greater consistency in recognition rates, and accepts that “there is some merit to the argument” that these objectives can be better achieved at EU level rather than by Member States acting alone. He adds, however, that “there is equally an argument” that Member States could achieve these objectives individually. In weighing the justification for EU action, we expect the Government to assess the strength of the arguments for and against. If, as the Minister appears to suggest, the Government’s preference would be for the UK to set its own standards, we ask him to explain whether and how unilateral national action would achieve the objectives he supports by ensuring greater convergence in decision making across the EU or “bring[ing] practices in line across EU Member States”.14

1.10The Minister recognises the importance of delivering “consistent asylum processes” across the EU but expresses concern that the choice of a directly applicable Regulation, rather than a standard-setting Directive which has to be implemented in national law, raises “profound implications for national sovereignty”. We ask him to clarify:

1.11The Commission emphasises the interdependence of the package of asylum reform proposals put forward in May and July, with each component forming “an indispensable part” of a comprehensive overhaul of the common European asylum system based on “common, harmonised rules that are both effective and protective” and designed to ensure “full convergence” between national asylum systems within the framework of “a well-functioning Dublin system”.15 The scale of the reforms proposed is ambitious and it is essential to get it right. The package raises important questions about the EU’s response to the refugee crisis and the demands placed on national asylum systems, as well as Member States’ commitment to implementing humane, fair and effective asylum policies.

1.12We have previously recommended an opt-in debate on the first package of asylum reform proposals concerning the Dublin system, the Eurodac database and the proposed EU Agency for Asylum and made clear that it should take place before the expiry of the three month opt-in deadline—likely to be in early October. No debate has been scheduled so far, nor has the Government responded to our request for further information on the Government’s handling of opt-in decisions arising before the UK’s formal withdrawal from the EU.

1.13Given that the length of the process for withdrawing from the EU is uncertain, we have no hesitation in recommending a further opt-in debate on the second package of asylum reform proposals. We suggest that the debate should consider the merits of the Commission’s reform package, the legal, practical and political feasibility of opting into some, but not all, of the reform proposals, and the wider implications for the UK once it has left the EU. We would like to hear whether there are any elements of the reform package which the Government would wish to replicate in its own domestic asylum laws or practices and what impact differential asylum rules in the EU and the UK may be expected to have on the UK asylum system post-Brexit.

1.14The proposed Regulation remains under scrutiny. As well as providing the information we have requested, we ask the Minister for an indication of the initial reactions of other Member States to the Commission’s reform package and progress reports on any negotiations that take place before the opt-in debate. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

Proposal for a Regulation on standards for the qualification of third country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third country nationals who are long-term residents: (37967), 11316/16 + ADD 1, COM (16) 466.

Background

UK participation in the common European asylum system

1.15The UK maintains its own border controls and is not part of the Schengen free movement area. Under arrangements in force since 1999, the UK does not participate in (and is not bound by) EU visa, asylum and migration laws unless it decides, on a case-by-case basis, to opt into individual measures. The right to opt in is enshrined in Protocol No. 21 to the EU Treaties.

1.16The common European asylum system has been phased in over a number of years. The UK participates fully in the measures covered by the Commission’s first phase of reform proposals concerning the Dublin system (the Dublin III Regulation and the Eurodac Regulation) and the European Asylum Support Office. Although the UK also opted into the first raft of EU asylum laws adopted between 2003 and 2005, it did not opt into (and so is not bound by) further changes to EU asylum laws agreed between 2011 and 2013. These more far-reaching rules establish common standards for determining who qualifies for international protection and the rights conferred, the procedures for granting and withdrawing international protection, and reception conditions pending the examination of an asylum claim. It is these later EU asylum laws which the Commission’s recent reform proposals seek to change.

The EU Qualification Directive

1.17The 2011 EU Qualification Directive establishes two forms of international protection. The first—refugee status—is based on the definition of a refugee contained in the UN Refugee Convention.16 Under the Convention, a refugee is a person who:

1.18Under the Directive, refugee status can only be conferred on a third country (non-EU) national or stateless person. The Directive frames an act of persecution as one which is “sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights” and sets out a non-exhaustive list of “acts of persecution” which may qualify an individual for refugee status covering:

1.19The Directive also requires Member States to take account of certain elements linked to the concepts of race, religion, nationality and social group when assessing the reasons for persecution. For example, race includes colour, descent, or membership of a particular ethnic group; membership of a particular social group may include a group based on a common characteristic, such as sexual orientation.18

1.20The Directive includes a second form of protection—subsidiary protection—which is intended to be “complementary and additional to” the protection conferred by the UN Refugee Convention.19 It covers those who do not qualify as refugees but for whom there are substantial grounds for believing that they would face “a real risk of suffering serious harm” if they were returned to their country of origin or habitual residence. The Directive defines serious harm as any of the following:

1.21Individuals granted refugee status or subsidiary protection are referred to collectively as beneficiaries of international protection but there are differences in the rights they enjoy under EU law. For example, refugees are entitled to a three-year renewable residence permit, compared with a one-year renewable residence permit for beneficiaries of subsidiary protection. In principle, all beneficiaries of international protection are entitled to “necessary social assistance”, but this may be limited to “core benefits” for individuals granted subsidiary protection.

1.22Although the UK does not participate in the 2011 EU Qualification Directive, the basis for qualifying as a refugee or as a beneficiary of subsidiary protection is largely the same as under the earlier (2004) Directive which still applies to the UK.21

1.23The Commission’s reform proposals draw on “tentative findings” of two external studies (yet to be published) assessing how the 2011 EU Qualification Directive has been implemented by Member States (particularly the use they have made of optional or discretionary provisions) and its practical application. The Commission has also consulted stakeholders. Whilst Member States “generally expressed support for further harmonisation”, albeit to differing degrees, NGOs feared that this would lead to a lowering of standards and underlined the need to consider both the reasons for secondary movements within the EU and possible incentives to reduce their prevalence.22

The proposed Regulation

1.24The Commission believes that the chances of obtaining international protection, and the specific form of protection granted, should not vary according to the Member State in which an application is made. It therefore proposes to repeal the 2011 Qualification Directive and replace it with a Regulation—as EU Regulations are directly applicable, there is less scope for rules to be implemented or applied differently by Member States. The proposed Regulation would not alter the definition of a refugee or an individual eligible for subsidiary protection (which has remained largely unchanged since 2004) but would seek instead to encourage greater convergence in recognition rates, protection status and associated rights by introducing more prescriptive, harmonised rules. The proposal also incorporates a number of Court of Justice rulings clarifying how provisions of the 2004 and 2011 Qualification Directives are to be interpreted and applied. In the following paragraphs, we summarise the main changes proposed by the Commission and their intended purpose.

Harmonising the criteria for granting protection

1.25The purpose of the changes proposed by the Commission is to achieve greater convergence in determining who qualifies for international protection, reducing the incentives for secondary movements within the EU to secure a more favourable outcome. The proposed Regulation would not alter the criteria for granting protection, but it would cut back the areas in which Member States are able to diverge from common EU standards and reduce the discretion they currently enjoy to decide how to implement some of the provisions of the 2011 Qualification Directive. The most significant changes are:

Greater convergence in asylum recognition rates

1.26The Commission highlights continuing disparities in asylum recognition rates and the type of protection granted by Member States. Between January and September 2015, Italy recognised nearly all asylum applications made by Afghan nationals, whereas Bulgaria recognised just under 6%. Syrian nationals are granted refugee status in some Member States and subsidiary protection in others.31 To encourage greater convergence, the Commission proposes new provisions requiring Member States to base their assessments on (rather than simply take into account) country of origin information and guidance produced or coordinated by the EU Asylum Agency (the proposed successor to the European Asylum Support Office).32

Regular status reviews

1.27The 2011 Qualification Directive does not include a requirement for regular status reviews. The Commission expresses concern that the absence of regular checks to verify whether there is a continuing need for protection creates “an additional incentive” to seek refuge in the EU rather than closer to home as the protection granted by Member States has “a de facto permanent nature”.33 The changes it proposes are intended to ensure that protection is granted “only for as long as the grounds of persecution or serious harm persist”.34 The proposed Regulation would require Member States to review refugee status and subsidiary protection status whenever the proposed EU Asylum Agency indicates that there is “a significant change in the country of origin” which might affect an individual’s protection needs. A review of refugee status would also be required at the first renewal of a refugee’s residence permit (after three years of residence) and the first and second renewal of a residence permit granted to a beneficiary of subsidiary protection (after the first and third year of residence).35 If refugee or subsidiary protection status is withdrawn, the proposed Regulation includes a new three-month grace period in which the individual concerned may apply for residence on any other grounds provided for in EU or national law.36

Discouraging secondary movements

1.28The EU External Borders Agency (Frontex) has reported unprecedented secondary movements within the EU in 2015 as many asylum seekers entering the EU through Greece or Italy moved elsewhere to secure more favourable treatment. These secondary movements can distort the allocation of responsibility envisaged under the Dublin rules. The Commission has already put forward a proposal to reform the Dublin system which includes a new “corrective allocation mechanism” to ensure a fairer distribution of asylum seekers amongst Member States. The Dublin reforms also include measures to discourage individuals moving (without authorisation) elsewhere in the EU once they have been granted international protection by the responsible Member State.

1.29The proposed Regulation would mirror these reforms, stipulating that, as a general rule, beneficiaries of international protection only have the right to reside in the Member State which granted them protection.37 To discourage secondary movements, the proposal also includes an amendment of a 2003 Directive setting out the conditions in which third country nationals may acquire long-term resident status in a Member State. The amended rules make clear that the requirement for five years of continuous legal residence can only be satisfied, in the case of beneficiaries of international protection, by remaining in the Member State which granted protection. Unauthorised secondary movements will reset the clock to zero when calculating the five-year period, lengthening the time it takes to acquire long-term resident status and the related right to live and work elsewhere in the EU.38

Further harmonisation of the rights of beneficiaries of international protection

1.30The changes proposed by the Commission largely clarify the scope of existing rights and obligations and link the granting of certain benefits—access to employment and to social security—to the issuing of a residence permit.39 The proposed Regulation includes more prescriptive rules on residence permits, harmonising their format and period of validity (for refugees, an initial period of three years renewable at three-yearly intervals; for beneficiaries of subsidiary protection, an initial period of one year renewable at two-yearly intervals).40 Travel documents issued to beneficiaries of international protection are similarly harmonised to ensure that they comply with EU rules on security and biometric features.41 The provisions on family unity are extended to immediate family members and (at the discretion of each Member State) other close relatives who lived together with the beneficiary of international protection before his or her arrival in the Member State granting protection, even if the family unit was formed outside the country of origin.42

1.31The proposed Regulation sets out more clearly the employment rights to which beneficiaries of international protection are entitled (for example, equal treatment as regards working conditions, pay, dismissal, working hours, leave, and workplace health and safety) as well as the means available to secure formal recognition of their qualifications or validation of their skills.43 It also stipulates that beneficiaries of international protection are to be treated in the same way as nationals of the Member State which has granted protection as regards social security44 and social assistance.45 Access to certain (unspecified) types of social assistance may (at the discretion of each Member State) be made conditional on participation in integration measures. Moreover, as is the case under the 2011 Qualification Directive, Member States may limit the social assistance granted to individuals with subsidiary protection status (but not those with refugee status) to “core benefits”. The proposed Regulation does not define “core benefits”. In its explanatory memorandum accompanying the proposal, the Commission says that they should be understood to cover “at least minimum income support, assistance in case of illness or pregnancy and parental assistance if these benefits exist and [are] granted to nationals”.46

Integration measures

1.32The proposed Regulation provides a clearer indication of the type of integration measures—language courses, civic orientation and integration programmes and vocational training—which must be available to beneficiaries of international protection. It allows (but does not require) Member States to make it compulsory to participate in these measures. In its accompanying explanatory memorandum, the Commission observes that Member States should take into account “individual hardship” in determining whether it is appropriate to require a beneficiary of international protection to take part in integration measures.47

Legal base and subsidiarity

1.33The proposed Regulation is based on Article 78(2)(a) and (b) of the Treaty on the Functioning of the European Union (TFEU) which provides for the adoption of EU measures establishing a common European asylum system based on a uniform status for refugees and a uniform subsidiary protection status for other third country nationals in need of international protection. The proposal also cites Article 79(2)(a) TFEU as this is the equivalent legal base for the 2003 Directive on the status of third country nationals who are long-term residents which the proposed Regulation would amend.

1.34The common European asylum system operates on the basis of common standards and procedures for all individuals who are seeking or have been granted international protection. Despite considerable approximation of nationals laws and practices, the Commission believes that disparities in recognition rates, the status granted and the rights conferred by different national asylum systems “incentivise ‘asylum shopping’ and secondary movements within the EU”. According to the Commission, “action at EU level is needed to help facilitate more convergence in terms of asylum decisions within the EU and mitigate these consequences”.48

The Minister’s Explanatory Memorandum of 4 August 2016

1.35The Minister explains that the UK opted into and remains bound by the first EU Qualification Directive, adopted in 2004, but did not opt into the 2011 Qualification Directive. This complicates the task of determining the extent of the changes proposed by the Commission:

“Wherever the Commission explains that elements in the proposal are already part of the Qualification Directive 2011/95/EU and so do not represent significant change, it might not necessarily be the case for the UK, as we did not opt in to this recast version and remain bound by the earlier version of Directive 2004/83/EC.”49

1.36The Minister does not attempt “an exhaustive discussion” of all aspects of the proposed Regulation but addresses the Commission’s choice of legal instrument and the “main thematic areas” covered by the proposal.

The use of a Regulation instead of a Directive

1.37The Minister notes that a Regulation would be directly applicable and, if adopted on the basis of the Commission’s proposal, would require changes to domestic law. He suggests that moving from a standard-setting Directive to a Regulation that “by its nature restricts flexibility” would raise “profound implications for national sovereignty”, adding:

“We therefore anticipate that the negotiations in Council will be complex, as some Member States seek to maintain their sovereignty in this policy area. The Government has some concern about the inflexibility of a Regulation.”50

International protection

1.38The Minister supports the imposition of an explicit obligation on applicants for international protection to provide the information necessary to substantiate their claim and to comply with other requirements, including remaining in the Member State responsible for examining the application throughout the asylum procedure. He suggests that certain changes, such as the expectation that Member States should refuse refugee or subsidiarity protection status to individuals whose claim is based on circumstances they have created since leaving their country of origin (so-called “sur place” claims), are likely to be difficult to apply in practice. He continues:

“The Geneva Convention is silent on the motivation that leads to sur place status but does require careful consideration of the potential risk on return. This principle of ‘non-refoulement’ will not be altered by changes to the Directive/Regulation given the reference to ‘without prejudice to the Geneva Convention and the European Convention on Human Rights’ (ECHR) in the text. In reality, although the benefits of refugee status may be denied, if the individual is ultimately at risk of persecution on return to their country of origin or former habitual residence, removal will not be possible.”51

1.39The Minister says that the obligation to assess whether adequate protection is available within part of the applicant’s country of origin (so-called “internal protection”) is reflected in the UK’s current asylum policy, adding:

“The Government supports this element of the proposal as it would ensure that Member States are considering claims equally across the EU. The internal protection element of considering a claim is set out clearly in UK guidance and is considered an important aspect of determining whether someone needs international protection or not. The Government believes that more consistency with use of this argument could lead to greater consistency of recognition rates across the EU. For example, some Member States’ grant rates for certain countries, such as Nigeria, are vastly different to that of the UK’s and greater consistency would ensure fair treatment of individuals, reduce the risk of ‘asylum shopping’ and reduce pull factors of migration.”52

1.40The Minister notes that some of the changes proposed “mirror recent legal precedents”. For example, in assessing whether an individual has a well-founded fear of being persecuted, the proposed Regulation would clarify that she or he cannot reasonably be expected to behave discreetly or abstain from certain practices where such behaviour or practices are inherent to his or her identity. He adds:

“This position already exists in UK asylum policy and guidance following the Supreme Court Judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31. The Government agrees this is necessary in order to bring practices in line across EU Member States.”53

1.41The proposed Regulation would require Member States to base their assessment of an application for international protection (and subsequent reviews of the protection status once granted) on country of origin information and guidance produced by the EU Agency for Asylum (when established), as well as guidance and information issued by UNHCR. The Minister observes:

“The Government notes the value of having common guidance on the situation in countries of origin, particularly for Member States who do not have access to such a service; however, the UK makes use of its own country and information guidance, supplemented by the European Asylum Support Office’s (EASO) guidance where necessary. The Government will continue to have regard to country guidance produced by EASO and UNHCR to inform our view on UK country guidance, but any mandatory use of this guidance is inflexible and our position is that we will retain use of UK guidance within our domestic asylum system.”54

Status reviews

1.42The Commission considers that regular reviews to establish whether the reasons for granting an individual international protection still apply are necessary to ensure that international protection is not regarded as a permanent status, incentivising individuals to seek refuge in the EU rather than other countries closer to home. It says that the reviews should not create an “unnecessary burden” for Member States. The Minister welcomes the introduction of “an enhanced mechanism for reviewing status which mirrors existing UK policy and is consistent with the existing principle that there is no international obligation to grant protection to individuals indefinitely”, but adds:

“It is recognised however, that this brings an additional administrative burden for Member States to introduce a consistent review procedure. The Government introduced enhanced guidance in November 2015 to ensure that reviews of status were more robust and meaningful and to reinforce the principle that settlement in the UK is not an automatic right. Those who still need protection on review may benefit but those who no longer need protection are expected to return home in safety or apply to stay under other provisions of the Immigration Rules. It is noted that such a procedure is likely to have a significant impact on certain Member States, particularly those whose asylum system is less developed.”55

Secondary movements within the EU

1.43The Minister supports the Commission’s efforts to ensure that individuals remain within the Member State which initially granted them protection and to disincentive unauthorised movement to another (second) Member State. He notes that the UK would not be affected by the proposed amendment of the 2003 Long Term Residents Directive as the UK does not participate in this Directive. If the UK were to opt into the proposed Regulation, this part of the proposal would therefore need to be amended to reflect the UK’s position.

1.44The Minister welcomes clarification that individuals granted international protection in one Member State may nevertheless apply to reside in another Member State if national law permits.

1.45The proposed Regulation would authorise the Commission to decide, by means of an implementing act, the form and content of information to be provided to beneficiaries of international protection so that they have a clear understanding of their rights and obligations and the consequences of any unauthorised movement to a second Member State. The Minister “notes the challenges of securing EU-wide agreement to the content and form of information to be provided, but welcomes this as a means of ensuring migrants are aware of their obligations”.56

Family unity

1.46The Minister indicates that the proposed Regulation is in line with current UK policy “in terms of providing mechanisms for family reunification for immediate family members and ensuring residence permits are only granted for the duration of the beneficiary’s protection status”. He adds, however, that the UK does not participate in the EU Family Reunification Directive, which provides for a child recognised as a refugee in a Member State to sponsor his or her parent’s entry and residence, on the grounds that “it creates perverse incentives for children to leave family units and risk dangerous journeys into Europe in order to sponsor relatives”.57 He continues:

“The Government would not support any measures to widen the scope of family reunion to include extended family members. It is noted that there is ongoing NGO pressure to extend the definition, which may impact on negotiations.”58

Rights of beneficiaries of international protection

1.47The Minister notes that the proposed Regulation would continue to differentiate between individuals granted refugee status and those granted subsidiary protection status in terms of the initial period of validity of their residence permits and the frequency of their renewal. He comments:

“The Government proposes to differentiate leave in protection cases so that most refugees will benefit from a standard package of 3 years renewable limited leave at a time, though certain categories will be granted on a premium package and receive 5 years. The current proposals due to come into force in October 2016 will delay settlement in most cases for 10 years in line with other routes to settlement in the UK. We believe that delaying settlement is right, particularly in cases where the individual’s behaviour is a factor, and the policy is designed to encourage people to claim asylum at the earliest opportunity in the first safe country they reach. In addition, granting protection based leave for only one year is likely to create a significant administrative burden on Member States if any review is to be meaningful.”59

1.48The Commission also proposes to harmonise the format of residence permits granted to beneficiaries of international protection, as well as the security features and biometrics contained in travel documents. Travel documents would be valid for a minimum of one year. The Minister observes:

“The current format of the biometric residence permit has been in circulation in the UK since November 2008. The UK has been participating in the development of work to improve the security features of the uniform residence permit for other countries, in parallel to work on our own documentation, as this forms part of our strategy in tackling illegal migration.

“The Government policy on issuing travel documents to beneficiaries is consistent with this approach, however we have concerns on whether the proposals on the uniform format are consistent with our own policy on issuing Biometric Residence Permits (BRPs) which we issue to all residents granted leave to enter or remain for more than six months.”60

1.49The Minister expresses concern that the choice of a Regulation rather than a Directive would mean that the UK would “lose the ability to decide the conditions under which employment can be accessed” by beneficiaries of international protection and indicates that the impact of this aspect of the proposal will require further consideration with other Government departments, including the Department for Work and Pensions.

1.50The Minister considers that the provisions on unaccompanied children are “generally in line with UK policy”. He notes that the proposed Regulation would allow Member States to make participation in integration measures compulsory for beneficiaries of international protection and adds:

“this proposal goes further than the UK Government’s current policy in this area. We agree with the basic arguments for improving integration and will work with partners where it is in our interests to do so. However, we see integration policy as a matter for the UK Government.”61

Subsidiarity

1.51The Minister provides the following overall assessment of the proposed Regulation:

“We welcome the overarching aim of the proposal which discourages abuses and secondary movements. The migration crisis has highlighted the challenges presented by large scale secondary movements. Greater consistency of recognition rates would go some way to tackling unwarranted secondary movements and ‘asylum shopping’.”62

1.52However, in his subsidiarity assessment, the Minister is more guarded:

“This Regulation seeks to ensure greater convergence in the way asylum claims are decided and the content of protection granted, therefore reducing secondary movements within the EU and ensuring beneficiaries of international protection are treated equally. The Commission states that as common standards are required across all Member States, these objectives cannot be dealt with by Member States individually. Whilst there is some merit to the argument that the objectives of this proposal can be better achieved at the level of the Union rather than by the Member States alone, there is equally an argument that Member States could achieve this individually. The Government considers that the UK would also be able to set its own standards.”63

The UK’s Title V opt-in decision

1.53The Minister reiterates in familiar terms the Government’s current position on the outcome of the referendum on UK membership of the EU:

“On 23 June, the EU referendum took place and the people of the United Kingdom voted to leave the European Union. Until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation.”64

1.54He notes that the UK’s Title V opt-in applies to the proposed Regulation and that the three-month deadline for notifying the UK’s opt-in decision is expected to expire on 1 December (time starts to run from the date on which the last language version is published). The Minister says that the Government “is considering its approach to the opt-in in light of the EU referendum result” and will confirm its approach “shortly”. He continues:

“In any event, a decision to opt in will only take place if it is considered to be in the national interest to do so.”

1.55He sets out the factors that will help to inform the Government’s opt-in decision:

1.56If the UK were to opt into the proposed Regulation, the Minister does not anticipate that it would have “significant additional financial implications” for the UK, but adds that a more systematic process for reviewing protection status once it has been granted would require “an additional administrative process” which would have resource implications.66

Timetable for negotiations

1.57Following a “high-level presentation” of the Commission proposal to the Council in July, detailed negotiations are expected to begin in September. The Minister notes that negotiations will run concurrently with discussions on the other elements of the Commission’s asylum reform package. He does not expect agreement to be reached this year.

Previous Committee Reports

None, but see our earlier Report on the Commission Communication, Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe: Thirty-third Report HC 342-xxxii (2015–16), chapter 3 (11 May 2016) and our Reports on the first package of EU asylum reform proposals (proposed Regulations on the Dublin rules, Eurodac and the EU Agency for Asylum): Sixth Report HC 71-iv (2016–17), chapter 1 and chapter 2 (15 June 2016) and Seventh Report HC 71-v (2016–17), chapter 1 (6 July 2016).

4 The term “asylum” and “international protection” are used interchangeably in this chapter. They encompass claims which result in the conferral of refugee status under the UN Refugee Convention and other forms of subsidiary protection which are not a direct result of individual persecution but where an individual would be at risk of “serious harm” (including from armed conflict) if returned to his or her country of origin.

5 See the Frontex Risk Analysis for 2016, chapter 5.14.

6 See our Thirty-third Report HC 342-xxxii (2015–16), chapter 3 (11 May 2016).

7 See our Sixth Report HC 71-iv (2016–17), chapter 1 and chapter 2 (15 June 2016) and our Seventh Report HC 71-v (2016-17), chapter 1 (6 July 2016).

8 See the press release issued by the Commission on 13 July 2016.

9 See pp.2–3 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

10 See Directive 2011/95/EU.

11 See the Commission’s fact sheet on its latest reform proposals.

12 See the Commission’s infographic on the changes proposed.

13 See para 20 of the Minister’s Explanatory Memorandum.

14 See, for example, paras 23 and 24 of the Minister’s Explanatory Memorandum.

15 See p.3 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

16 Article 1(A) of the 1951 Geneva Convention on the Status of Refugees, as amended by the 1967 New York Protocol.

17 See Article 9 of the 2011 Qualification Directive.

18 See Article 10 of the 2011 Qualification Directive.

19 See recitals (32) and (33) of the proposed Regulation.

20 See Article 15 of the 2011 Qualification Directive.

21 See Directive 2004/83/EC.

22 See pp.10–11 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

23 See Article 3 of the 2011 Qualification Directive and of the proposed Regulation.

24 See Article 4 of the 2011 Qualification Directive and of the proposed Regulation.

25 See Article 5 of the 2011 Qualification Directive and of the proposed Regulation.

26 See Article 6 of the 2011 Qualification Directive and of the proposed Regulation.

27 See Article 7 of the 2011 Qualification Directive and of the proposed Regulation.

28 See Article 8 of the 2011 Qualification Directive and of the proposed Regulation.

29 See Joined Cases C-199/12 to C-201/12.

30 See Joined Cases C-57/09 and C-101-09.

31 See p.4 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

32 See Article 7(3) of the proposed Regulation on actors of protection, Article 8(3) on internal protection, Articles 11(2)(b) and 17(2)(b) setting out the circumstances in which an individual ceases to be eligible for refugee or subsidiary protection status and Articles 15 and 21 on the review of refugee and subsidiary protection status.

33 See p.4 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

34 See p.5 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

35 See Articles 15 and 21 of the proposed Regulation.

36 See Articles 14(5) and 20(5) of the proposed Regulation.

37 See Article 29 of the proposed Regulation.

38 See Article 44 of the proposed Regulation.

39 See Article 22(3) of the proposed Regulation.

40 See Article 26 of the proposed Regulation.

41 See Article 27 of the proposed Regulation.

42 See Articles 2(9) and 25 of the proposed Regulation.

43 See Articles 30 and 32 of the proposed Regulation.

44 Article 2(17) of the proposed Regulation defines the scope of social security under EU law: sickness benefits, maternity and equivalent paternity benefits, invalidity benefits, old-age benefits, survivors’ benefits, benefits for accidents at work and occupational diseases, death grants, unemployment benefits, pre-retirement benefits and family benefits.

45 Article 2(18) of the proposed Regulation defines social assistance as benefits granted “in addition to or beyond social security benefits […] with the objective of ensuring that the basic needs of those who lack sufficient resources are met”.

46 See p.17 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

47 See p.17 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

48 See p.7 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

49 See para 21 of the Minister’s Explanatory Memorandum.

50 See para 20 of the Minister’s Explanatory Memorandum.

51 See para 22 of the Minister’s Explanatory Memorandum.

52 See para 23 of the Minister’s Explanatory Memorandum.

53 See para 24 of the Minister’s Explanatory Memorandum.

54 See paras 25–26 of the Minister’s Explanatory Memorandum.

55 See para 27 of the Minister’s Explanatory Memorandum.

56 See para 29 of the Minister’s Explanatory Memorandum.

57 See Directive 2003/86/EC on the right to family reunification.

58 See para 30 of the Minister’s Explanatory Memorandum.

59 See para 31 of the Government’s Explanatory Memorandum.

60 See paras 32–3 of the Minister’s Explanatory Memorandum.

61 See para 36 of the Minister’s Explanatory Memorandum.

62 See para 37 of the Minister’s Explanatory Memorandum.

63 See para 15 of the Minister’s Explanatory Memorandum.

64 See para 16 of the Minister’s Explanatory Memorandum.

65 See para 18 of the Minister’s Explanatory Memorandum.

66 See para 43 of the Minister’s Explanatory Memorandum.



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16 September 2016