Documents considered by the Committee on 14 December 2016 Contents

2Establishing an EU framework for the resettlement of individuals in need of international protection

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 11317/16, a proposal for a Regulation establishing a common procedure for international protection in the European Union and repealing Directive 2013/32/EU and Council document 11318/16, a proposal for a Directive laying down standards for the reception of applicants for international protection (recast) (decision reported 14 September 2016); drawn to the attention of the Home Affairs Committee

Document details

Proposal for a Regulation establishing a Union Resettlement Framework

Legal base

Article 78(2)(d) and (g) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(37966), 11313/16, COM(16) 468

Summary and Committee’s conclusions

2.12016 has been the most treacherous year for refugees and migrants crossing the Mediterranean to Europe. By early December, the International Organisation for Migration estimated that 4,733 individuals had lost their lives compared with 3,777 in 2015 and 3,279 in 2014.7 Resettlement is intended to provide individuals who are fleeing persecution or armed conflict with a safe and legal means of entry to a country of refuge, without the need to resort to perilous journeys over land and sea. Resettlement also cuts off at source the people smuggling networks which exploit the vulnerability of migrants, mitigates the risk of large-scale and spontaneous (unplanned) inflows of irregular migrants, and helps to alleviate the pressure on countries and regions hosting a disproportionate number of displaced individuals.

2.2As described in our earlier Reports, the proposed Regulation would establish a new EU framework for resettlement which, the Commission believes, will contribute to a gradual “scaling up” of Member States’ collective resettlement efforts, enable the EU to contribute more effectively to global resettlement initiatives by making a single, EU-wide resettlement pledge, and “discourage irregular and dangerous journeys and save lives” by offering “alternative legal pathways”.8 The proposal 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.

2.3When we first considered the proposed Regulation in September, we recommended that the Government’s opt-in decision on this and three other legislative proposals forming part of a wider package of EU asylum reforms should be debated on the floor of the House. The purpose of opt-in debates is to enable the House to scrutinise the factors informing the Government’s approach and to express a view before the Government reaches a definitive position on whether or not to opt in. The deadline for opting into the proposed Regulation on resettlement expired on 4 December. The opt-in deadlines for the three other proposals which were included in our debate recommendation have also expired. The Government has scheduled an opt-in debate for 19 December.

2.4In his latest letter, the Immigration Minister (Mr Robert Goodwill) responds to concerns we raised in an earlier Report regarding the EU’s competence to act on resettlement, the rationale for action at EU rather than national level (subsidiarity), and future EU funding for resettlement in the UK should the Government decide not to opt into the proposed Regulation. He belatedly addresses the concerns raised by the International Rescue Committee (CIRC), a non-governmental organisation providing humanitarian aid to refugees and assisting with resettlement, having previously declined to do so on the grounds that “the Government does not routinely comment on third party reports as part of the scrutiny process”.9

2.5In January 2011, the previous Coalition Government made an undertaking to Parliament to “extend scrutiny of opt-in decisions” in order to ensure “full transparency and accountability of opt-in decisions”. It envisaged that opt-in debates would not only “reduce the democratic deficit over EU matters” but also “significantly strengthen Parliament’s oversight of EU justice and home affairs matters and make the Government more accountable for the decisions it makes in the EU”.10 The Government’s own Code of Practice on parliamentary scrutiny of opt-in decisions makes clear that opt-in debates should take place within the three month opt-in to ensure that the Government is accountable to the House before, not after, it has reached a decision. A later debate would deprive Parliament of the opportunity to influence and inform the Government’s decision.11

2.6Parliament’s role in scrutinising opt-in decisions is even more important in light of the UK’s decision to leave the EU and the uncertain timescale for completing negotiations on the terms of the UK’s withdrawal. Opt-in decisions taken during this period are likely to take on a particular significance, signalling areas in which the Government may be expected to seek closer or looser ties with EU partners once the UK leaves the EU. Given this context we ask the Minister to explain why he has failed to abide by the letter and the spirt of the commitments made by the previous Coalition Government in 2011 and in the Government’s Code of Practice. We seek a categorical assurance that he intends to comply in future.

2.7The Minister’s belated response to the concerns raised by the International Rescue Committee is welcome but incomplete. We ask him to clarify the Government’s position on the involvement of the European Parliament (EP) in agreeing the annual Union resettlement plan. We recognise that the EP will be represented on the High-Level Resettlement Committee, but this body has no direct role in determining the number of individuals to be resettled in the EU each year. The Minister tells us that the Government would support the involvement of the UN Refugee Agency (UNHCR) in assisting with the processing of applications for resettlement. The IRC suggested that EU teams should also be deployed to third countries for this purpose. What is the Government’s position?

2.8The Minister describes the resettlement commitments made by the Government to help address the global migration crisis but offers no view on the figures put forward by the IRC as representing a “fair and achievable share” of the EU’s and the UK’s global responsibility towards refugees. We ask him to comment specifically on the share proposed for the UK and how big a gap he expects there to be between the IRC figure and the number actually resettled in the UK over the next five years.

2.9The proposed Regulation remains under scrutiny, at least until we receive the further information requested. We remind the Minister that he should formally notify us of the Government’s opt-in decision “as soon as it has been reached” and make a Written or Oral Statement to the House setting out the reasons for the decision.12 We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

Proposal for a Regulation establishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014: (37966), 11313/16, COM(16) 468.

Background

2.10Our earlier Reports listed at the end this chapter describe the UK’s patchwork participation in EU asylum measures, the package of asylum reforms put forward by the Commission in response to the migration and refugee crisis, the main elements of the EU resettlement framework proposed by the Commission and the Government’s view.

The Minister’s letter of 8 December 2016

2.11We indicated in our earlier Reports that we did not find the Government’s analysis of the EU’s competence to act on resettlement compelling and noted that, despite the Government’s reservations, it did not intend to challenge the validity of the Regulation (if adopted) in the Court of Justice. The Minister reiterates the Government’s position that Article 78(2)(d) of the Treaty on the Functioning of the European Union (TFEU) on common procedures for granting and withdrawing uniform asylum or subsidiary protection status refers to “procedures which Member States may put in place for the granting of status, such as those set out in the Procedures Directive or Qualification Directive, rather than resettlement”. The Government considers that Article 78(2)(g) TFEU providing for partnership and cooperation with third countries to manage migration flows “constitutes cooperation with third countries on upstream intervention methods to help control EU migration; for example the discussions over an upstream processing centre in Niger, rather than resettlement”. He says that “the Government has nothing further to add at this time.”

2.12We suggested that the Minister’s Explanatory Memorandum should have provided a clearer analysis of the Government’s position on subsidiarity—the justification for EU action—in light of the Minister’s subsequent letter stating that the objectives which the proposed EU resettlement framework is intended to achieve could “equally be achieved through close cooperation between international partners operating national resettlement schemes”. The Minister responds:

“The Explanatory Memorandum stated that the UK believes that resettlement schemes are best decided at the national level. I apologise if this was not clear enough. I hope my further explanation on this point, in response to your follow-up letter, assisted you and the Committee in clarifying this point.”13

2.13Our earlier Reports noted the substantial funding available from the EU to support the UK’s national resettlement schemes. We asked the Minister to explain what would happen to the £28.8 million allocated for resettlement from the UK’s share of the EU Asylum, Migration and Integration Fund (“AMIF”) if the Government were to decide not to opt into the proposed Regulation. In particular, we asked whether there would be a cut in funding to the UK or whether the proportion available for resettlement beyond 2016 would have to be reallocated to other objectives supported by the Fund. The Minister explains:

“This allocation from AMIF comes under the heading of integration activity, and the UK has chosen to put this towards integration of refugees resettled to the UK through our resettlement programmes. Further to my previous letter, I would also like to inform the Committee that the EU has agreed a total of £18 million (21 million Euros) in funding for the UK as a result of pledging to resettle refugees to the UK under our national resettlement schemes for the calendar years 2016 and 2017. We do not expect any funding already agreed through either of these two mechanisms to be affected if the UK does not choose to opt in to this Regulation. This is referred to in Article 17 of the Regulation, which states that ‘Allocations made before [date of entry into force of [Regulation (EU) (Resettlement Framework Regulation)] shall not be affected’.”

2.14We expressed our dismay at the Minister’s unwillingness to engage with the concerns brought to our attention by the International Rescue Committee (“the IRC”), given the important contribution that stakeholder submissions can make in informing the scrutiny process and ensuring that important matters of principle, policy or law are properly identified and responded to by the Government.14 We highlighted a number of amendments to the proposed Regulation which the IRC had advocated (set out below, in italics) and invited the Minister to comment on them:

2.15We asked the Minister whether he agreed with the IRC that a Member State should have the option to resettle an individual refused by another Member. He responds:

“We note that one of the intended aims of the resettlement framework is to reduce variation in approaches to resettlement across the EU, including specifying common grounds for eligibility and exclusion. We also note that Article (6)(1)(b) of the Regulation allows for a second Member State to object to the resettlement of an individual to another Member State on security grounds. We consider that if an individual has been assessed as meeting one of the grounds for exclusion listed in Article 6, for example having committed a serious crime, it would be reasonable to preclude them from resettlement to another Member State under the framework. We also interpret Article 9 to mean that those who have been accepted for resettlement to a particular Member State but have refused the offer should not then be able to reapply for resettlement to another Member State under the framework, which we would support.”

2.16 We invited the Minister to comment on the IRC’s appeal for the EU to resettle “a minimum of 108,000 refugees a year over five years” and asked whether he agreed that this figure represented “the EU’s fair and achievable share” of its global responsibility towards refugees. We also sought his view on the IRC’s suggestion that the Government should expand its existing national resettlement programmes with a view to resettling “15,608 refugees a year over five years”—a figure equating to “24 refugees per year per parliamentary constituency”—if the Government decided not to opt into the proposed Regulation. We requested further details of the Government’s position on humanitarian visas and on private sponsorship schemes. The Minister replies:

“The Government views resettlement as just one aspect of our comprehensive strategy for addressing the global migration crisis. We have committed to resettling 20,000 Syrian nationals and up to 3,000 vulnerable children and their family members to the UK by the end of this Parliament. For the year ending September 2016, 4,414 people have been resettled to the UK under the Syrian Vulnerable Persons Resettlement Scheme and we have committed to resettling several hundred persons under the Vulnerable Children’s Resettlement Scheme in the first year. These commitments are in addition to our longstanding Gateway Protection Programme, which offers protection to refugees in protracted situations with little prospect of returning home, and our Mandate scheme, which resettles those with a family member in the UK who is willing to accommodate them. Adults with protection status in the UK can also sponsor their family members to join them via our family reunion routes. Under this policy we have reunited many refugees with their immediate family and continue to do so. We have granted over 22,000 family reunion visas in the last five years. Humanitarian visas and private sponsorship schemes represent alternative mechanisms by which individuals in need of protection can reach safe countries, but we consider that the UK is already providing this via our resettlement schemes and our family reunion policy, and we have no plans to expand this at present.

“As the Prime Minister set out to the United Nations General Assembly in September 2016, the UK’s strategy is to work with international partners to improve the international response to mass movements of refugees and migrants. Three principles underpin the approach: (i) embedding the principle that refugees claim asylum in the first safe country they reach; (ii) the right of states to maintain control of their borders and accept returns of their nationals when they have no right to remain elsewhere; and (iii) strengthening international adherence to legal frameworks that distinguish between refugees and economic migrants. The Government’s approach includes reducing the need for people to migrate by tackling the drivers of migration, such as conflict and illegal migration facilitated by criminal gangs.

“The Government has committed to spending 0.7% of Gross National Income on overseas aid and is shifting its aid programming to reduce the factors which may force people to migrate, by improving education, employment opportunities and labour mobility in Africa and Asia. The UK is the second largest bilateral humanitarian donor to addressing the Syrian crisis, committing £2.3 billion to the response, and the UK committed £4 billion of aid to Africa in 2015–16, including £540 million for economic development. The UK has increased its humanitarian funding by more than £660 million in 2016–17 to over £1.5 billion.”

Previous Committee Reports

Twentieth Report HC 71-xviii (2016–17), chapter 4 (23 November 2016), Twelfth Report HC 71-x (2016–17), chapter 4 (14 September 2016).


7 See the latest Missing Migrants Project update which records deaths in the Mediterranean from 1 January to 5 December 2016.

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

9 See the Minister’s letter of 9 November 2016 to the Chair of the European Scrutiny Committee.

10 See the Written Ministerial Statement made by the then Minister for Europe (Mr David Lidington) on 20 January 2011.

11 See the Government’s Code of Practice on Scrutiny of Opt-In and Schengen Opt-Out Decisions which forms part of the Cabinet Office’s Guidance on parliamentary scrutiny of EU documents (Annex S). The European Scrutiny Committee was notified of the final version of the Code in May 2013.

12 See the Government’s Code of Practice on Scrutiny of Opt-In and Schengen Opt-Out Decisions which forms part of the Cabinet Office’s Guidance on parliamentary scrutiny of EU documents (Annex S).

13 Paragraph 12 of the Minister’s Explanatory Memorandum dealing with subsidiarity stated: “Asylum policy is transnational in nature and is an area of mixed competence. It is an area in which, in principle, the EU might legitimately act”. The Minister then went on to question whether the EU had the necessary competence to act: “The Government remains of the view that there is no explicit competence under the Treaties for the EU to act on resettlement”. We have previously made clear that the Government’s analysis of competence and subsidiarity should not be conflated. A proper subsidiarity analysis is required for all legislative proposals where the EU has a non-exclusive competence to act.

14 Our Standing Order requires us to report our opinion on the legal and political importance of each document we examine and, where appropriate, to report on any matters of principle, policy or law which may be affected.

15 Although the High Level Resettlement Committee has to be “consulted […] on issues relating to the implementation of the Union Resettlement Framework”, it has no direct role in establishing the annual Union resettlement plan.




16 December 2016