Not cleared from scrutiny; further information awaited/requested; drawn to the attention of the Home Affairs Committee
(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
(b) Proposal for a Regulation establishing a common procedure for international protection in the European Union and repealing Directive 2013/32/EU
(c) Proposal for a Directive laying down standards for the reception of applicants for international protection (recast)
(a) Articles 78(2)(a) and (b) and 79(2) TFEU, ordinary legislative procedure, QMV
(b) Article 78(2)(d) TFEU, ordinary legislative procedure, QMV
(c) Article 78(2)(f) TFEU, ordinary legislative procedure, QMV
(a) (37967), 11316/16 + ADD 1, COM(16) 466
(b) (37968), 11317/16 + ADDs 1–2, COM(16) 467
(c) (37969), 11318/16, COM(16) 465
10.1These documents form part of a wider package of EU asylum reforms which are intended to establish “an effective and protective” asylum system “based on harmonised rules and mutual trust between Member States”. Document (a)—the proposed Qualification Regulation—concerns the criteria applied by Member States to determine whether a third country (non-EU) national qualifies for international protection. 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”. Its aim is to produce greater convergence in asylum recognition rates across the EU, harmonise the rights accorded to beneficiaries of international protection, introduce more frequent “status reviews”, and apply stricter rules to discourage secondary movements between Member States.
10.2Document (b)—the proposed Asylum Procedures Regulation—would harmonise asylum procedures throughout the EU in an attempt to reduce the “pull factors” which may draw individuals to Member States with the most favourable asylum recognition rates and reception conditions and result in an uneven distribution of asylum seekers and sharing of responsibility amongst Member States.
10.3Document (c)—the proposed Reception Conditions Directive—has a two-fold purpose: to ensure that all Member States provide “sufficient and decent reception conditions” while an application for international protection is being examined, and to reduce “wide divergences” in the reception conditions currently provided by Member States. The proposal takes the form of a Directive rather than a Regulation as the Commission recognises that full harmonisation is neither feasible nor desirable given the “significant differences in Member States’ social and economic conditions”.
10.4All three proposals are subject to the UK’s Title V (Justice and Home Affairs) opt-in, meaning that they will only bind the UK if the Government decides to opt in. We recommended in September that the Government’s opt-in decisions on these important proposals should be debated, adding that the opt-in debate should consider the merits of the Commission’s asylum 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. The debate took place in European Committee B on 19 December, after the three-month period for opting into the proposals at the negotiating stage had expired (on 1 December for the proposed Qualification Regulation, 8 December for the proposed Asylum Procedures Regulation and 11 December for the proposed Reception Conditions Directive). The notion endorsed the Government’s decision not to opt-in and noted the possibility of post adoption opt-in.
10.5On 16 December, the Immigration Minister (Mr Robert Goodwill) formally notifies us of the Government’s decision not to opt into the proposals. Although indicating that the Government welcomes the “overarching aim” of the proposals to discourage “abuse and unwarranted secondary movements” and that the proposals “have some merit”, he observes:
“We have long been of the view that decisions on asylum systems are best taken at national level. The proposals, in particular where replacing the use of a Directive with a Regulation, would further limit the Government’s ability to take decisions on the UK asylum system at national level and in the UK national interest.”
10.6As we anticipated when we wrote to the Minister in November, delays and omissions by the Government resulted in the opt-in debate we requested in September being scheduled on 19 December, after the three month opt-in deadline for each proposal had expired. The House therefore had no opportunity to influence and inform the Government’s opt-in decisions. The Government’s cavalier approach to scrutiny of these important proposals is at odds with the undertaking made to Parliament by the previous Coalition Government to “extend scrutiny of opt-in decisions” in order to ensure “full transparency and accountability of opt-in decisions”. In his Written Ministerial Statement of 20 January 2011, the then Minister for Europe (Mr David Lidington) 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”. 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 period to ensure that the Government is accountable to the House before, not after, it has reached a decision.
10.7As we have made clear in our comments on another proposal forming part of the Commission’s asylum reform package, a proposed Regulation establishing an EU framework for resettlement, Parliament’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 exit negotiations. Opt-in decisions taken during this period are likely to take on an additional 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. We ask the Minister to explain why he has failed to abide by the letter and the spirit of the undertakings given by the previous Coalition Government in 2011 and in the Government’s own Code of Practice on parliamentary scrutiny of opt-in decisions. We seek an unequivocal assurance that he intends to do so in future and a description of the systems he is putting in place to prevent the recurrence of similar lapses.
10.8We remind the Minister that his letter does not address the questions which are outstanding on these proposals from our earlier Reports. We expect him to do so at the earliest opportunity. We would also welcome an update on the progress being made in negotiations. Meanwhile, the proposals remain under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.
(a) 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), + , COM (16) 466. (b) Proposal for a Regulation establishing a common procedure for international protection in the European Union and repealing Directive 2013/32/EU: (37968), + ADDs 1–2, COM(16) 467. (c) Proposal for a Directive laying down standards for the reception of applicants for international protection (recast): (37969), , COM(16) 465.
10.9Our earlier Reports listed at the end of this chapter provide a detailed overview of the proposals and the Government’s position. We wrote separately to the Minister in November expressing our disappointment at the Government’s apparent reluctance to engage with the concerns we have raised during our scrutiny of these proposals, as well as those raised by external stakeholders, notably the International Rescue Committee. We noted:
“The Government persists in reminding us that the UK remains a full member of the European Union until exit negotiations are concluded and that all the rights and obligations of EU membership remain in force. Despite this, the handling of the EU asylum reform package indicates to us that the Government has become complacent in fulfilling its scrutiny obligations, at a time when effective scrutiny and accountability to Parliament on EU matters is more important than ever. The scrutiny function of this Committee remains unaltered until such time as the UK leaves the EU. We expect the Government to ensure that we are able to fulfil our role in a meaningful way through the provision of prompt and accurate information.”
10.10We sought an immediate assurance that the Home Office is “fully committed to fulfilling its scrutiny obligations and is adequately resourced to do so.”
10.11The Minister’s letter (received on 19 December, the date of the opt-in debate on the proposals) notifies us of the Government’s decision not to opt into the Commission’s proposals for a new Qualification Regulation, a new Asylum Procedures Regulation and a recast Reception Conditions Directive. He sets out the broader context for the Government’s decision:
“The new proposals on qualification, asylum procedures and reception conditions reform the package of asylum Directives adopted between 2011 and 2013 as part of the second phase of the CEAS [Common European Asylum System]. The UK chose not to participate in the corresponding second phase instruments as it was considered that they would result in unacceptable interference with the UK’s national system, particularly in respect of the scope to restrict access to the labour market and the use of detention within the asylum system. As a result the UK remains bound by the Directives adopted as part of the first phase of the CEAS: the Reception Conditions Directive 2003/9/EC; the Qualification Directive 2004/83/EC; and the Asylum Procedures Directive 2005/85/EC. These Directives established minimum standards and allowed Member States a large degree of flexibility in implementation.
“Taking each proposal in turn, the new Qualification Regulation seeks to ensure a more harmonised approach to the criteria for applicants to qualify for asylum and subsidiary protection and to the rights for persons who benefit from such status. It seeks to address the variations in the duration of residence permits and access to rights and the lack of systematic use of the provisions on cessation of status. Such differences could create an incentive to claim asylum in a Member State where those rights and recognition levels are perceived to be more favourable.
“The new Asylum Procedures Regulation seeks to establish a fully harmonised common EU procedure for seeking international protection (asylum and subsidiary protection). The aim is a faster and more efficient treatment of claims for protection by establishing common rules on the procedure to be followed to register a claim, common deadlines, procedural guarantees and clear obligations for applicants.
“The recast Reception Conditions Directive aims to further harmonise reception conditions in the EU, to reduce incentives for secondary movements and to increase applicants’ self-reliance and integration prospects. The Commission believes that the migration crisis has exposed the need to ensure consistency in reception conditions across the EU and for Member States to be better prepared to deal with more migrants.”
10.12The Minister welcomes “some elements of the approach in the proposals”, highlighting in particular “the overarching aim of the proposals of discouraging abuse and unwarranted secondary movements”. He continues:
“The migration crisis has highlighted the challenges presented by large scale secondary movements. As noted above the UK did not participate in the Directives of 2011 and 2013 owing to concerns over the limits they would place on our national system. I note that the Qualification and Asylum Procedures proposals reflect a shift by the Commission from setting standards and criteria in a Directive, which permits Member States some flexibility in transposing the provisions into national law, to a Regulation, which limits Member States’ ability to set their own national rules in accordance with national interests.
“Whilst the proposals have some merit we have long been of the view that decisions on asylum systems are best taken at national level. The proposals, in particular where replacing the use of a Directive with a Regulation, would further limit the Government’s ability to take decisions on the UK asylum system at national level and in the UK national interest.
“I see no reason to change our approach from that taken with regard to the second phase measures. Therefore, the UK will not opt in to the proposals.”
Twelfth Report HC 71-x (2016–17),, and (14 September 2016) and Twentieth Report HC 71-xviii (2016–17), , and (23 November 2016).
37 See the Commission’s on its latest asylum reform proposals.
38 See the Commission’s on the changes proposed.
39 See p.6 of the Commission’s explanatory memorandum accompanying the proposed recast Directive.
40 See the of 23 November 2016 from the Chair of the European Scrutiny Committee to the Immigration Minister (Mr Robert Goodwill.
41 See the made by the then Minister for Europe (Mr David Lidington) on 20 January 2011.
42 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 on parliamentary scrutiny of EU documents (Annex S).
43 See the of 23 November 2016 from the Chair of the European Scrutiny Committee to the Immigration Minister (Mr Robert Goodwill).
13 January 2017