Documents considered by the Committee on 13 November 2017 Contents

45Machine-readable travel documents for refugees and stateless persons

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; further information requested

Document details

Proposed Council Decision on the position to be adopted on behalf of the European Union in the Executive Committee of the Programme of the United Nations High Commissioner for Refugees

Legal base

Articles 78(2) and 218(9) TFEU, QMV

Department

Home Office

Document Number

(39033), 12163/17 + ADD 1, COM(17) 544

Summary and Committee’s conclusions

45.1The Executive Committee of the United Nations High Commissioner for Refugees (UNHCR) meets annually in Geneva. It provides advice on international refugee protection and reviews and approves the UNHCR’s programmes and budget. The advice it issues takes the form of Conclusions which are adopted by consensus by the members of the Executive Committee. The UK and all other EU Member States with the exception of Malta are members of the Executive Committee and have full voting rights. Malta participates in the Executive Committee as an observer state. The EU participates as a non-state observer, meaning that it can contribute to the development of Executive Committee Conclusions in areas which correspond to the EU’s competence for asylum and refugee matters but cannot vote on their adoption.

45.2The proposed Council Decision concerns an Executive Committee Conclusion on machine-readable travel documents for refugees and stateless persons which is to be agreed at the annual plenary session of the Executive Committee commencing on 2 October. The 1951 Refugee Convention requires participating states to issue travel documents to refugees lawfully staying in their territories so that they can travel elsewhere except where “compelling reasons of national security or public order otherwise require”.641 The Conclusion to be adopted by the Executive Committee encourages states to issue travel documents which comply with the latest international standards, meaning that they should be machine-readable to enhance their security.

45.3Executive Committee Conclusions are not legally binding but are capable of having legal effects in that they contribute to the interpretation and development of international standards on refugee protection. The Commission considers that the Conclusion on machine-readable travel documents is “capable of decisively influencing the content of EU legislation” concerning minimum security standards for passports and other travel documents and the issuing of travel documents to beneficiaries of international protection.642 It says that a Council Decision requiring EU Member States with voting rights in the Executive Committee to support the adoption of the Conclusion is necessary given that it may affect common EU rules.

45.4The Commission published its proposal for a Council Decision on 18 September. It has to be adopted before the Executive Committee meets in early October. The proposal is subject to the UK’s Title V (justice and home affairs) opt-in, meaning that it will only be binding on the UK if the Government decides to opt in.

45.5The Immigration Minister (Brandon Lewis) tells us that the UNHCR presented its latest draft Executive Committee Conclusions in May. The delay in publishing the proposed Council Decision means that it is likely to be presented to Coreper as “a non-negotiable text” on 20 September and formally adopted at the General Affairs Council on 25 September, well before the expiry of the three month period provided for in the UK’s Title V opt-in Protocol to decide whether or not to opt in at the negotiating stage. He raises no objection to the substance of the Executive Committee Conclusion, noting that the UK complies with the recommendations contained in it, but says that there are likely to be “few benefits to the UK in opting in” and that “there may be some value in not opting in and instead demonstrating an independent position”. He adds that the Government “will consider laying a statement” when the proposed Council Decision is adopted to protest at the failure to respect the three month opt-in deadline.

45.6We ask the Minister why it has taken the Commission so long to publish its proposal and what steps the Government has taken since May to impress on the Commission the need to respect the three month opt-in period set out in the UK’s Title V opt-in Protocol.

45.7We note that the General Affairs Council adopted the proposed Decision at its meeting on 25 September. We trust that the Government made a statement in the Council minutes expressing its displeasure that the opt-in procedures enshrined in the EU Treaties have been undermined in this case and ask the Minister to share the contents of the minutes statement with us.

45.8The Minister’s letter and Explanatory Memorandum both appear to predate the publication of the proposed Council Decision. They refer to Executive Committee Conclusions (implying that there are several) whereas the proposed Council Decision only concerns the Conclusion on machine-readable travel documents for refugees and stateless persons. We ask the Minister to confirm that the EU is only asserting competence in relation to this one Conclusion and to indicate whether he shares the Commission’s view that the EU has competence to act on the grounds that the Conclusion is likely to have legal effects and may affect common EU rules.

45.9The UK does not participate in the EU instruments which are most likely to be affected by the adoption of the Executive Committee Conclusion. We ask the Minister how material a factor this is in determining whether or not the UK should opt into the proposed Council Decision.

45.10The Minister tells us that the proposed Decision is to be presented to the Council as “a non-negotiable text”. Given that the ultimate power of decision rests with the Council, we ask him to explain how and why this should be the case.

45.11The Minister’s letter suggests that the balance is tilted towards the UK not opting into the proposed Council Decision. Whilst we accept that a decision not to opt in would be unlikely to have any practical consequence, given that the UK already meets international standards for machine-readable travel documents, we would like to know what position the UK takes at the Executive Committee and what benefit the Government sees in acting independently of the EU on this matter.

45.12As the proposed Council Decision has been adopted, we clear it from scrutiny. We expect the Minister to provide the information we have requested promptly and to explain whether or not the Government decided to opt in and the grounds for its decision.

Full details of the documents

Proposed Council Decision on the position to be adopted on behalf of the European Union in the Executive Committee of the Programme of the United Nations High Commissioner for Refugees: (39033), 12163/17 + ADD 1, COM(17) 544.

The Minister’s letter of 19 September 2017

45.13The Minister tells us that the UNHCR presented its latest draft Executive Committee Conclusions in May. His letter anticipates the publication of a Council Decision to seek agreement to an EU position supporting the Conclusions at the Executive Committee meeting from 2–6 October:

“A proposal is expected from the European Commission at Coreper on 20 September (presented as a non-negotiable text); with the formal EU decision being adopted at the General Affairs Council on 25 September.”

45.14He expects the proposed Council Decision to cite a Title V (justice and home affairs) legal base and to trigger the UK’s Title V opt-in. He continues:

“Due to the shortened timetable as a result of the late proposal of the Council Decision by the Commission, the UK’s three month period in which to take an opt-in decision will not be respected in this case and the Scrutiny Committees will not receive their full eight week period to consider the opt in.

“The Government is committed to taking all opt-in decisions on a case-by-case basis, putting the national interest at the heart of the decision making process. Our current assessment suggests that there are few benefits to the UK in opting into this Council Decision, and there may be some value in not opting in and instead demonstrating an independent position on the matters.”

The Minister’s Explanatory Memorandum of 20 September 2017

45.15The Minister describes the purpose of the proposed Executive Committee Conclusion on machine-readable travel documents:

“The Conclusions urge States who have not yet done so to take necessary measures to introduce machine-readable Convention Travel Documents for refugees and stateless persons lawfully staying in their territory at the earliest convenience. The Conclusions also encourage existing national systems for civil documentation to include refugees and stateless persons and to limit fees for travel documents for refugees and stateless persons. They commit Member States to further strengthening international solidarity and burden-sharing to facilitate the transition to machine-readable travel documents to refugees and stateless persons.”643

45.16He says that the UK “already exceeds the recommendations” set out in the Executive Committee (ExCom) Conclusion and that there will be no impact on UK law. He sets out the factors which will influence the Government’s opt-in decision:

45.17The Minister continues:

“The UK is committed to continued engagement and cooperation with the EU on refugee and migration issues. This has been reiterated at numerous meetings, notably at the June European Council. The UK already offers travel documents to recognised refugees and stateless persons which exceeds the recommendation to issue machine-readable travel documents. Home Office travel documents are machine-readable and also include a biometric chip that contains a digital facial image of the document holder, similar to the British passport. Furthermore, the UK already complies with the points on costs of refugee travel documents; we align with the 1951 and 1954 UN Conventions which state that signatory states should charge no more than is charged for a national passport.”645

45.18The Minister notes that the late publication of the proposed Council Decision means that the UK will not have the three-month period provided for in its Title V opt-in Protocol to decide whether or not to participate in the proposal. He adds:

“The UK will consider laying a statement on adoption of the Council Decision noting this point.”

Previous Committee Reports

None.


641 See Article 28 of the 1951 Refugee Convention and related Schedules and Annexes.

642 The Commission refers to Regulation (EC) 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States as well as existing and proposed EU rules on individuals qualifying for international protection (see Directive 2011/95/EC).

643 See para 2 of the Minister’s Explanatory Memorandum.

644 See para 10 of the Minister’s Explanatory Memorandum.

645 See para 11 of the Minister’s Explanatory Memorandum.




20 November 2017