Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
(a) Proposal for a Regulation establishing a Union Resettlement Framework
(b) 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
(c) Proposal for a Regulation establishing a common procedure for international protection in the European Union and repealing Directive 2013/32/EU
(d) Proposal for a Directive laying down standards for the reception of applicants for international protection (recast)
(a) Article 78(2)(d) and (g) TFEU, ordinary legislative procedure, QMV
(b) Articles 78(2)(a) and (b) and 79(2) TFEU, ordinary legislative procedure, QMV
(c) Article 78(2)(d) TFEU, ordinary legislative procedure, QMV
(d) Article 78(2)(f) TFEU, ordinary legislative procedure, QMV
(a) (37966), 11313/16, COM(16) 468
(b) (37967), 11316/16 + ADD 1, COM(16) 466
(c) (37968), 11317/16 + ADDs 1–2, COM(16) 467
(d) (37969), 11318/16, COM(16) 465
8.1These documents form part of a wider package of EU asylum reforms proposed by the Commission in 2016 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 EU Resettlement Regulation—would apply to third country (non-EU) nationals outside the EU who are in need of international protection. The Commission believes that a comprehensive EU framework for resettlement would lead 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” to the EU.
8.2The remaining documents would apply to third country nationals who are already in the EU and wish to apply for asylum. Document (b)—the proposed Qualification Regulation—concerns the criteria applied by Member States to determine whether a third country (non-EU) national seeking asylum 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.
8.3Document (c)—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. Document (d)—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”.
8.4All four proposals (and the remaining three measures forming part of the wider EU asylum reform package) 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 leaves the EU. We wrote to the Immigration Minister (Mr Robert Goodwill) in November expressing concern at the Government’s apparent reluctance to engage meaningfully with us during our scrutiny of these proposals. 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.”
8.5We sought an immediate assurance that the Home Office is “fully committed to fulfilling its scrutiny obligations and is adequately resourced to do so”.
8.6Our lack of confidence in the Government’s commitment to schedule an opt-in debate before the expiry of the three-month period for opting into the proposals at the negotiating stage proved to be well-founded. The debate we recommended on 14 September eventually took place in European Committee B on 19 December, after the three-month opt-in period had expired (on 1 December for the proposed Qualification Regulation, 4 December for the proposed EU Resettlement Regulation, 8 December for the proposed Asylum Procedures Regulation and 11 December for the proposed Reception Conditions Directive). The Government motion invited the House to endorse the Government’s decision not to opt-into the proposals whilst also noting that “the Government is able to opt in post-adoption” and that the Government intends to “continue to support other Member States on asylum matters”.
8.7In two letters (both dated 11 January), the Immigration Minister provides the information requested in our earlier Reports on the proposed Qualification and Asylum Procedures Regulations and on the proposed Reception Conditions Directive. He intends to write separately on the proposed EU Resettlement Regulation. On the late scheduling of the opt-in debate, the Minister comments:
“I would like to reassure you that it is always the Government’s intention to facilitate opt-in debates in a timely manner but, unfortunately, there can be pressure to debate Government business which means opt-in debates cannot be scheduled as quickly as we would like.”
8.8He acknowledges that the delay in scheduling the debate deprived the House of the opportunity to influence the Government’s opt-in decisions but indicates nevertheless that the Government “remains committed to fulfilling our scrutiny commitments” as set out in the Government’s Code of Practice on parliamentary scrutiny of opt-in decisions. The Minister says that he has asked officials “to ensure we improve our performance and timeliness” and concludes:
“I apologise that you feel the handling of the EU asylum reform package indicates that the Government has become complacent in fulfilling its scrutiny obligation. I am sure the Committee can empathise with the Government that the volume and pace of the measures that the EU has presented on asylum reform last summer has meant the Government (and likewise the Committees) have had a number of issues to consider. My Department is committed to fulfilling its scrutiny obligations and is ensuring adequate resources are in place.”
8.9The Minister is aware of our dissatisfaction with the Government’s handling of these important proposals which is chronicled in our earlier Reports. Rather than repeat our criticisms, we agreed at our meeting on 11 January to invite the Minister to give evidence in person. We expect the Minister to demonstrate that his Department is adequately resourced to fulfil its existing scrutiny obligations as well as the additional analysis required to prepare for the UK’s exit negotiations. We also expect him to explain what systems he has put in place to improve scrutiny performance and prevent a recurrence of the lapses we have seen in the handling of these proposals.
8.10We note that the Government aims to keep us “fully abreast of developments at the earliest opportunity” and understand this to mean that we will, in future, receive timely progress reports on negotiations. These should indicate whether the negotiations are likely to result in a greater or lesser degree of convergence in the asylum rules and procedures applied by the UK and by other EU Member States and, once the outcome is clearer, an assessment of the impact that different rules might be expected to have on the UK asylum system post-Brexit.
8.11Meanwhile, the proposals remain under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.
(a) Proposal for a Regulation establishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014: (37966), , COM(16) 468. (b) 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. (c) 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. (d) Proposal for a Directive laying down standards for the reception of applicants for international protection (recast): (37969), , COM(16) 465.
8.12Our earlier Reports listed at the end of this chapter provide a detailed overview of the proposals and the Government’s position. When we wrote to the Minister on 23 November, we explained that our opt-in debate recommendation reflected the importance we attached to asylum reform in the context of the migration and refugee crisis:
“In 2016 alone, more than 4,500 individuals have lost their lives crossing the Mediterranean to Europe. How the EU adapts its existing framework of laws—the common European asylum system—to respond to the crisis has far-reaching legal, political and humanitarian consequences.”
8.13We noted that one of the key issues which the Minister had so far failed to address was the “legal, practical and political feasibility” of opting into some of the Commission’s asylum reform proposals but not others. We added that there was no recognition whatsoever of the broader context in which the proposals would be negotiated following the UK’s decision to leave the EU and no analysis of the possible impact that different asylum rules in the EU and the UK might be expected to have on the UK asylum system post-Brexit.
8.14We drew the Minister’s attention to the Government’s own Code of Practice on parliamentary scrutiny of opt-in decisions which makes clear that opt-in debates should take place “in the four weeks that follow the initial eight-week period of consideration after the publication of a proposal” and commits the Government to informing the scrutiny committees in both Houses of a decision not to opt into a proposal “as soon as it has been reached”.
8.15We expressed particular concern at the Government’s unwillingness to engage with the concerns raised with us by external stakeholders, notably the International Rescue Committee, adding:
“It is deeply disappointing that you do not recognise the contribution that stakeholder submissions can make in informing our scrutiny and ensuring that important matters of principle, policy or law are properly identified and responded to by the Government. It is also counter-productive and undermines the openness of the scrutiny process.”
8.16In his first letter, the Minister responds to the concerns we raised in our letter of 23 November. He agrees with us that “the ongoing reform of the Common European Asylum System (CEAS) is an important issue given the wider context of the migration crisis”. He adds that the Government “has given (and continues to give) full consideration to the measures proposed. Irrespective of the opt-in decisions under discussion, we remain committed to addressing the migration crisis and working with the EU and Member States to tackle this high priority issue”.
8.17Turning to the scheduling of the opt-in debate we recommended in September, the Minister observes:
“I would like to reassure you that it is always the Government’s intention to facilitate opt-in debates in a timely manner but, unfortunately, there can be pressure to debate Government business which means opt-in debates cannot be scheduled as quickly as we would like. As you will be aware, a debate on these measures took place on 19 December. I am aware that the opt-in deadline has passed and therefore the opportunity to influence the Government’s initial opt-in decision has passed. However, the Government has taken note of the points raised in your correspondence and during the debate and will take these into consideration as the negotiations on these proposals continue.
“I am aware that the Government’s Code of Practice sets out timescales on scheduling debates and informing the Committees of its opt-in decisions as soon as one has been reached. The Government remains committed to fulfilling our scrutiny commitments in this respect and aims to keep the Committees fully abreast of developments at the earliest opportunity. You have noted that a Written Ministerial Statement is yet to be issued on the EU Agency for Asylum proposal; this has now been issued, alongside Statements for the Eurodac and Dublin Regulations and the Qualification Regulation, Asylum Procedures Regulation and the Reception Conditions Directive. A Written Ministerial Statement will shortly issue for the Resettlement Framework, but I can inform you that the Government does not intend to opt-in to this measure at this time.”
8.18The Minister seeks to assure us of the Government’s commitment to the wider scrutiny process:
“I would like to allay any further concerns about our commitment to scrutiny. You have rightly noted that the UK currently remains a full member of the EU and until exit negotiations are concluded, all the rights and obligations of EU membership remain. I apologise that you feel the handling of the EU asylum reform packages indicates that the Government has become complacent in fulfilling its scrutiny obligation. I am sure the Committee can empathise with the Government that the volume and pace of the measures that the EU has presented on asylum reform last summer has meant the Government (and likewise the Committees) have had a number of issues to consider. My Department is committed to fulfilling its scrutiny obligations and is ensuring adequate resources are in place.”
8.19In his second letter, the Minister addresses questions which remain outstanding from our earlier Reports on the proposals. We asked him whether the Government considered that there was a justified case for further harmonisation of asylum laws at EU level, or rather that greater convergence to reduce fragmentation and ensure greater consistency in decision making at national level could be sufficiently achieved through a combination of ‘constructive engagement’ by Member States and more vigorous enforcement of existing asylum rules by the European Commission. The Minister responds:
“The Commission has previously noted that ‘one of the weaknesses of the EU’s migration management system, and of the Common European Asylum System (CEAS), has been the failure to transpose fully and inconsistent implementation’. I agree with this assessment. I believe that such issues can be addressed through constructive engagement between Member States; forums such as the European Asylum Support Office (EASO) already provide an opportunity to do so and we continue to provide support and expertise to Member States on a bilateral basis. Alongside this, I believe there is also a role for the Commission in ensuring that serious deficiencies in Member States’ asylum procedures are addressed through the appropriate procedure. The Commission’s role as the ‘guardian of the treaties’ means that it has responsibility to ensure that the adopted legislation of the CEAS is implemented and, where necessary, to consider launching infraction procedures in the Court of Justice of the European Union. I consider this sufficient oversight of Member States’ asylum systems when compared with the direct applicability of a Regulation that imposes an asylum procedure at national level.
“The Government does recognise that there are problems with the effectiveness of current elements of the CEAS, which have been highlighted by the migration crisis. It is the Government’s position that it is necessary to develop an asylum and migration framework in Europe that works to control illegal migration, deters abuse and prevents secondary movement. This does not mean, however, that the Government agrees with all of the policy options that the Commission suggests or that they are in the UK’s national interest.”
8.20Our earlier Reports noted the emphasis placed by the Commission on the interdependence of its asylum reform proposals. We asked the Minister for his assessment of the legal, practical and political feasibility of opting into some, but not all, of the reform proposals. He observes:
“The Government considers that it is feasible for the UK to participate in some elements of the revised CEAS and not others. There is precedence for this; the UK and Ireland choose to participate in some elements of the second revision of CEAS (Dublin, Eurodac and the European Asylum Support Office) while choosing not to participate in the recast Asylum Procedures, Qualification or Reception Conditions Directives. It should also be noted that the Associated States (Norway, Switzerland, Iceland and Lichtenstein) also participate in some elements of CEAS via third party agreements and not others. I can therefore see that such arrangements could be feasible in relation to this latest revision of CEAS.”
8.21We invited the Minister to address the wider implications of the Commission’s proposed asylum reforms for future cooperation with EU partners on asylum and migration once the UK leaves the EU. In particular, we asked him:
8.22On the degree of convergence in the asylum rules applied by the EU and the UK following the UK’s withdrawal from the EU, the Minister comments:
“This is a matter for the Government to consider as part of considerations for exiting the EU. The Government notes that if the EU adopts the proposals in their current form, there may be some divergences between the asylum rules in [the] EU and the UK, although the UK could address these by making changes in domestic legislation. For example, this could relate to the provisions relating to access to the labour market, deadlines for asylum procedures, provision of a personal interview and validity period of residence permits. However, these provisions are currently subject to negotiations within the EU and therefore may change. The Government will continue to monitor the negotiations and consider areas of convergence and divergence.”
8.23The Minister recognises that “the ongoing reform of the CEAS is an important issue given the wider context of the migration crisis” and makes clear that the Government “has given (and continues to give) full consideration to the measures proposed”. He continues:
“Irrespective of the opt-in decisions under discussion, we remain committed to addressing the migration crisis and working with the EU and Member States to tackle this high priority issue. The Government will also consider how the UK can best support the EU on asylum and wider migration matters as part of considerations for exiting the EU.”
8.24Finally, the Minister apologises for the delay in issuing a Written Ministerial Statement notifying Parliament of the Government’s decision not to opt into the proposed EU Asylum Agency Regulation (part of the Commission’s wider asylum reform package). He adds:
“As I set out in my response to your letter of 23 November, I would like to reassure the Committee that the Government is fully committed to fulfilling its scrutiny obligations. A Written Ministerial Statement has now been issued on the EU Agency for Asylum proposal, alongside Statements for the Eurodac and Dublin Regulations and the Qualification Regulation, Asylum Procedures Regulation and the Reception Conditions Directive. A Written Ministerial Statement will shortly issue for the Resettlement Framework, but I can inform you that the Government does not intend to opt-in to this measure at this time. Furthermore, as you will be aware, a debate on the Commission’s second package of CEAS reform took place on 19 December; the Government has taken note of the points raised and will take these into consideration as the negotiations on these proposals continue.”
Twenty-fifth Report HC 71-xxiii (2016–17),(11 January 2017), Twenty-fourth Report HC 71-xxii (2016–17), (14 December 2016), Twentieth Report HC 71-xviii (2016–17), , and (23 November 2016), and Twelfth Report HC 71-x (2016–17), , and (14 September 2016).
39 See p.5 of the Commission’s explanatory memorandum accompanying the proposed Regulation.
40 See the Commission’s on its latest asylum reform proposals.
41 See the Commission’s on the changes proposed.
42 See p.6 of the Commission’s explanatory memorandum accompanying the proposed recast Directive.
43 Proposed Regulations revising the so-called “Dublin rules” which allocate responsibility for asylum applications made in the EU, developing the EU’s asylum database—Eurodac—into a broader migration management tool, and establishing a new EU Agency for Asylum to replace the existing European Asylum Support Office.
44 See the of 23 November 2016 from the Chair of the European Scrutiny Committee to the Immigration Minister (Mr Robert Goodwill).
45 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).
46 According to the , the total number of lives lost crossing the Mediterranean by the end of 2016 exceeded 5,000.
47 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.
48 Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration, 10 February 2016.
23 January 2017