EU Asylum Report: opt-in decisions Contents

2Establishing a common EU asylum procedure

Committee’s assessment

Legally and Politically important

Committee’s decision

Not cleared from scrutiny; further information requested; opt-in decision recommended for debate on the floor of the House together with Council document 11316/16, a 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, Council document 11318/16, a proposal for a Directive laying down standards for the reception of applicants for international protection (recast) and Council document 11313/16, a proposal for a Regulation establishing a Union Resettlement Framework (decision reported 14 September 2016); drawn to the attention of the Home Affairs Committee

Document details

Proposal for a Regulation establishing a common procedure for international protection in the European Union and repealing Directive 2013/32/EU

Legal base

Article 78(2)(d) TFEU; ordinary legislative procedure; QMV


Home Office

Document Numbers

(37968), 11317/16 + ADDs 1–2, COM(16) 467

Summary and Committee’s conclusions

2.1The proposed Regulation forms part of a wider package of asylum reforms which is intended to establish “an effective and protective” asylum system “based on harmonised rules and mutual trust between Member States”. Its purpose is to harmonise asylum procedures throughout the EU by means of a directly applicable Regulation. The Commission believes that the current procedures, set out in the 2013 Asylum Procedures Directive, are too complex, too lengthy, and leave too much discretion in the hands of Member States, resulting in different treatment and outcomes depending on the Member State in which an application for international protection is submitted. It suggests that the absence of fully harmonised asylum procedures across the EU creates “pull factors” which draw individuals to Member States with the most favourable asylum recognition rates and reception conditions, contributes to “secondary movements and asylum shopping”, and results in an uneven distribution of asylum seekers and sharing of responsibility amongst Member States.7 The proposed Regulation is subject to the UK’s Title V (justice and home affairs) opt-in, meaning that it will only bind the UK if the Government decides to opt in.

2.2As explained in the previous chapter, the Commission’s asylum reform package has been presented in two phases. This proposal forms part of the second phase of asylum reforms which concern 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, as well as 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. In September, we agreed to recommend an opt-in debate on these proposals and made clear 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 asked the Immigration Minister (Mr Robert Goodwill) to:

2.3The Minister reiterates his preference (reported in the previous chapter) for “constructive discussion” amongst Member States and “greater efforts” on the part of the Commission to ensure that EU asylum laws are applied consistently throughout the EU. We are unclear whether this means that the Government opposes further harmonisation of asylum procedures at EU level on the grounds that greater convergence in asylum procedures and recognition rates, and a reduction in secondary movements and “asylum shopping”, can be sufficiently achieved by Member States acting individually. We trust that the Minister will clarify the Government’s position during the opt-in debate we have recommended on this and other proposals forming part of the Commission’s second phase of asylum reforms.

2.4We reiterate the request made in the previous chapter for the Minister to address the broader questions we have raised about the legal, practical and political feasibility of opting into some, but not all, of the reform proposals, given the emphasis placed by the Commission on their interdependence, as well as the wider implications of the reform package for future cooperation with EU partners on asylum and migration once the UK has left the EU.

2.5Pending the opt-in debate and further details of the Government’s opt-in decision, the proposed Regulation remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

Proposal for a Regulation establishing a common procedure for international protection in the European Union and repealing Directive 2013/32/EU: (37968), 11317/16 + ADDs 1–2, COM(16) 467.


2.6Our Twelfth Report (agreed on 14 September) describes the UK’s patchwork participation in EU asylum measures, the main changes proposed by the Commission to existing EU asylum procedures and the Government’s view.

The Minister’s letter of 8 November 2016

2.7The Minister explains that the Government is continuing to consider the proposed Regulation and undertakes to provide “further detailed analysis” if it recommends opting in. He notes that we have recommended an opt-in debate on the second phase of asylum reform proposals but makes no commitment at this stage, commenting that the Government will consider our recommendation “in the normal course of business”.

2.8In our earlier Report, we asked the Minister whether the objectives he supports—a clear obligation on individuals applying for international protection to cooperate with national authorities, accompanied by procedural sanctions to discourage “abusive behaviour” and unauthorised secondary movements between Member States—could be sufficiently achieved by Member States acting alone, without further EU intervention. He responds:

“Member States have a responsibility to engage constructively on the issue, ensuring that unilateral action brings consistency. Furthermore, we recognise there is a role for the Commission to play in ensuring greater consistency but we remain cautious of the need for a directly applicable Regulation.”

2.9We noted the Minister’s concern that the choice of a directly applicable Regulation, rather than a standard-setting Directive which has to be implemented in national law, would “reduce the ability of Member States to set their own procedural standards and so has a more profound impact on national sovereignty”.8 We asked him to clarify whether his concern stemmed solely from the choice of legal instrument or from particular provisions contained in it which present a particular threat to national sovereignty. He replies:

“The Government considers that the choice of a Regulation in itself has some implications for sovereignty given the measure would be directly applicable and there would be resulting limitations in the UK deciding how to run its national asylum system. There are elements in the proposal, such as the safe countries of origin provisions, which the UK has clear views on given our reasons for not opting in to the previous proposal on this (due to maintaining a national list of safe countries of origin) remain valid.”

2.10We also asked the Minister how it would be feasible for the Commission to secure reforms which avoided the fragmentation in national asylum systems resulting from existing EU Directives without having recourse to a directly applicable Regulation. He comments:

“The Government considers greater efforts are needed from the Commission in order to ensure Member State compliance with the Directives. The existing institutions and fora within the EU, such as the European Asylum Support Office (the EU Agency for Asylum in future), could play a role in identifying and analysing areas of greatest divergence and presenting these for constructive discussion with Member States.”

2.11Responding to our request for details of the Government’s position on the proposed designation of Turkey as “a safe country of origin”, the Minister observes:

“The Government has no immediate plans to seek to include Turkey in the UK national list of safe countries of origin; however the country situation remains under constant review, particularly in light of the attempted coup earlier this year.”

2.12The Minister tells us that discussions are continuing within Council working parties on the first phase of asylum reform proposals and reports “divergent views” on the Dublin and EU Asylum Agency proposals. By contrast, Member States are “broadly aligned” on the Eurodac proposal, welcoming changes which will improve the management of illegal migration and support returns. He expects the Eurodac proposal to have a smoother passage than the others, but notes that there are unresolved issues concerning the use of Eurodac data for law enforcement purposes. Comprehensive discussions on the second phase of asylum reform proposals are due to begin later this month. The Minister reports that a number of Member States share the UK’s concerns, particularly with regard to the choice of a Regulation as the instrument for implementing most of the proposed reforms.

Previous Committee Reports

Twelfth Report HC 71-x (2016–17), chapter 2 (14 September 2016).

7 See p.2 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

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

25 November 2016