C. LEGAL AND PROCEDURAL ISSUES
55. EUROPEAN COMMISSION PROPOSAL FOR A JOINT ACTION CONCERNING
TEMPORARY PROTECTION OF DISPLACED PERSONS (7042/97)
Letter from Lord Tordoff, Chairman of the Committee,
to the Rt Hon Jack Straw MP, Home Secretary, Home Office
The above proposal was considered by Sub-Committee F. As
well as your Department's Explanatory Note of 20 May, the Sub-Committee
received written evidence submitted by Justice and the Immigration
Law Practitioners' Association (ILPA) on the proposal, copies
of which I attach [not printed].
The Sub-Committee noted that the United Kingdom already has
arrangements for dealing with people requiring temporary protections
which are both flexible and effective and that the Government
would not want the flexibility to react quickly to situations
to be lost as a result of this proposal. Nevertheless, the Sub-Committee
believes that recent events in the former Yugoslavia and Albania
have highlighted the desirability of having increased co-operation
between Members States over the Commencement and conclusion of
temporary protection regimes so as to ensure an equitable sharing
of responsibility among Member States for mass influxes from Third
countries. The Commission's proposal sets down minimum standards
and it would leave it open to the United Kingdom to offer more
generous provisions.
Both ILPA and Justice believe that there is merit in a co-ordinated
response from potential host countries and welcome the majority
of the substantive provisions contained in the proposal. There
are, however, several provisions of the proposal which they consider
give rise to concern:
(a) They comment on the lack of clarity in the terms used
in Article 1. For example, the Article defines mass influx of
persons in the need of international protection" as the arrival
within the Union of a significant number of persons. It is unclear
whether this must be statistically significant taking into account
the total population of the Union or significant in terms of the
State where the mass influx occurs. A similar concern arises in
relation to the termsafe return under humane conditions"
used Article 4 (Revision and/or phasing out of temporary protection
regimes). Both organisation comment that it is not entirely clear
what this means and that it would be more appropriate to adopt
the concept of return in safety and dignity" which is used
in the UNHCR Handbook on voluntary repatriation;
(b) Article 7 proposes a right to family reunification, but
limits this right to the nuclear family. It leaves it up to Member
States to lay down the conditions for admission of dependent family
members who do not belong to the nuclear family. Justice comment
that it may be appropriate in some cases for family reunification
to be allowed for broader categories of family members. Both organisations
welcome, however, the provision in Article 7.2 which expressly
provides that the absence of documentary proof of the family relationship
shall not in itself be considered an impediment to family reunification;
(c) Article 10 provides that Member States may postpone the
examination of an asylum application by a person under temporary
protection for the duration of the temporary protection regime.
It sets a five-year maximum time limit on postponement. Both ILPA
and Justice consider this clause unsatisfactory. Justice believes
that as currently formulated the Article has the potential to
undermine minimum international standards of asylum protection
by leaving scope for Member States to avoid their treaty obligations.
They believe that a Member State's right to postpone examination
of asylum claims should be limited. Furthermore, they argue that
five years is too long to postpone claim examinations and suggest
that two years would be more appropriate. Finally, they
suggest that there should be a positive obligation on Member States
to consider any claim for protection which is still outstanding
at the end of the temporary protection period. The Sub-Committee
notes that in your Department's Explanatory Note (para 25 of the
Explanatory Note) it is stated that it is not clear whether it
would be lawful in the United Kingdom deliberately to defer consideration
of an asylum application. The Sub-Committee would welcome further
information on this point;
(d) Article 11 contains a number of exclusion clauses, which
are directly derived from Articles 1(F) and 33 of the 1951 Geneva
Convention on the Status of Refugees. Both Justice and ILPA believe
that this Article deviates from Member States' obligations under
Article 3 of the European Convention on Human rights and the jurisprudence
of the European Court of Human rights which has held that the
protection of Article 3 is absolute and admits of no exceptions
even on national security grounds. The Sub-Committee would welcome
the Government's views on the evidence received on this Article;
and
(e) Article 13 provides that at the end of five years after
the introduction of a temporary protection regime, Member states
should examine whether long-term measures should be introduced
for beneficiaries of temporary protection. Both ILPA and Justice
believe that the time after which people may apply for long-term
protection on humanitarian or compassionate grounds should be
shorter. Justice favours a two year period whilst ILPA suggests,
by reference to the EEC/Turkey Association Agreement, that a four
year period should apply. The Sub-Committee would be grateful
for any comments you might have on the suggestions made by ILPA
and Justice.
On a more general point the Sub-Committee welcomes the thorough
and professional way the Commission has presented this proposal.
The Explanatory Memorandum accompanying the text of the proposal
provides a useful explanation of what the objective of the proposal
is, why it is being presented at this time and what the expected
added value of the measure would be. The Sub-Committee considers
that this should form a model of how other Third Pillar proposals
should be presented.
The Sub-Committee notes that the Luxembourg Presidency has
made the adoption of this joint action a priority for its term
in office. In light of the impending summer recess the Sub-Committee
has decided to clear the proposal from scrutiny but would like
your views on the matters raised above and has asked to be kept
informed of developments.
29 July 1997
Letter from Joyce Quin MP, Minister of State, Home
Office to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 29 July to the Home Secretary
concerning the European Commission's proposal for a joint action
concerning the temporary protection of displaced person (Document
Number 7042/97)
I am grateful to the Sub-Committee for having cleared this
proposal from scrutiny, in light of the need for discussions to
continue during the recess. I was also grateful for your comments
and for you bringing to my attention those of justice and ILPA.
I am now responding to your request for our views on several matters
which have been raised by those organisations.
Before I do so, perhaps I could make a general point. The
Government continues to place importance on the ability of Member
States to react as flexibly as possible to situations of mass
influx. We are concerned that a measure along the lines proposed
would restrict that flexibility and would not readily be adaptable
to any future crisis. We also have doubts about the necessity
and desirability of further measures on burden-sharing. In 1995,
the Council adopted a Resolution on burden-sharing with regard
to the admission and residence of displaced persons on a temporary
basis and (in 1996) a consequential Decision on an alert and emergency
procedure.
I should also emphasise that, as I am sure you will appreciate,
this document is still at a very preliminary stage of discussion.
As such, detailed disclosure of our views on particular Articles
could be detrimental to our negotiations. I hope, therefore, that
you will be understanding of 1 concentrate on our overall policy
and aims.
The first point which you draw to our attention relates to
the clarity of the terms used in Article 1. Our concern here in
negotiation would be to ensure that the Council should retain
as much flexibility as possible.
As you note, the provisions for family reunification in Article
7 would allow the right of family reunification to extend only
to spouses and minor and dependent children. We agree that there
may be compelling compassionate circumstances where it would appropriate
to allow family reunion with other family members, for instance
elderly parents. To attempt, however, to frame such a provision
in Article 7, given divergences in Member States practice on this
issue, is likely to be difficult.
We recognise that the provision in Article 10 raises some
difficult issues in respect of Member States obligations under
the 1951 Convention. It is, however, also important to recognise
that whether it would be practicable or acceptable to postpone
consideration of asylum claims will need to be considered in close
conjunction with the proposals made in Articles 6 and 9 which
provide for the rights of the beneficiaries of the temporary protection
regime.
Article 11 (the exclusion clauses) are directly derived,
as you say, from the exclusion clauses in the 1951 Geneva Convention.
We assume that the Commission's reasoning behind this is that
the Joint Action would provide rights similar to those granted
to Convention refugees. but it is debatable whether precisely
the same provisions should be extended to the beneficiaries of
the temporary protection regime. As to Article 3 of the European
Convention on Human Rights, there would, of course, be no question
of the joint action limiting Member States' obligations under
Article 3.
Turning to Article 13, the position in the United Kingdom
is that settlement for those granted refugee status is normally
granted after four years and after seven years for those granted
exceptional leave to remain. Coincidentally, you may also wish
to note that in June this year the Government announced that the
Temporary Protection Programme in relation to Bosnia would end,
roughly five years after its introduction. Whether the proposal
is right to identify five years as the standard period after which
to consider the situation is again a matter we will be considering
further.
In conclusion, I should like to re-iterate that this proposal
as a whole is still at a preliminary stage of discussion, and
there still needs to be further debate about how the various Articles
interact with each other and with existing provision in the Member
States to guarantee the position of persons in need of international
protection.
I am, however, grateful for your comments and for those of
ILPA and Justice, which I have ensured have been passed on to
those dealing with the detail of this policy area. I will of course
keep you informed of any subsequent significant developments in
relation to this proposal.
1 October 1997
Letter from Lord Tordoff, Chairman of the Committee,
to Joyce Quin MP, Minister of State, Home Office
Thank you for your response dated 1 October to my letter
dated 29 July. Sub Committee F (Social Affairs, Education and
Home Affairs) reconsidered this matter at its meeting on Thursday
6 November and noted that the Government's primary objective in
the negotiations is to ensure that Member States retain the ability
to react as flexibly as possible to situations of mass influx
as they arise.
I understand that the negotiations on this matter are still
at a preliminary stage but that the proposal was discussed at
the recent informal Justice and Home Affairs Council held on 9-10
October. Press reports suggest that there was a divergence of
views among the Member States on several important questions such
as how the financial burden of a mass influx of refugees should
be shared among Member States and the compatibility of the proposed
text with the 1951 Geneva Convention on the Status of Refugees.
The Sub-Committee would welcome a report of the discussions at
the recent Council meeting on this matter.
Although the Sub-Committee has already cleared this proposal
from scrutiny it wishes to be kept informed of further developments
as they arise.
12 November 1997
Letter from Joyce Quin MP, Minister of State, Home
Office, to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 12 November about this proposal.
I am unable to provide you with a formal report of the discussions
of this issue at the Informal Justice and Home Affairs Council
which was held on 9-10 October in Luxembourg. As you know, these
are informal occasions on which Ministers can discuss key topics
without coming to formal conclusions. Nevertheless, you refer
correctly to a divergence of views among the Member States and
I think it only right that I should expend on this to you without
attributing differing views to specific Member Status.
Member States ultimately concluded at the Informal Council
that the Geneva Convention could not be suspended in relation
to beneficiaries of a temporary protection regime but significant
differences of opinion remained on other important issues. For
example, the UK would wish to see the issue of burden-sharing
to be tackled on the basis of the measures already adopted by
the Council while some other Member States hold as firm a view
that a measure on temporary protection is unacceptable to them
without specific provisions for burden sharing, including a distribution
of the financial burden and the distribution among the Member
States of the European Union of the displaced persons themselves,
including enforcement action if necessary.
These were the main substantive items discussed at the informal
Council but they are not the only issues of difficulty identified
in discussions in the working group meetings of officials which
include divergence of views as to the role of the Commission in
establishing and winding-up a temporary protection regime and
voting procedures.
The Luxembourg Presidency's current intention is to place
temporary protection on the agenda of the formal Justice and Home
Affairs Council next week. I hope it will possible to promote
a policy discussion there on the practicality of taking the issue
forward on the basis of the Commission's text given the real and
divergent views of Member States on some of its provisions. We
shall of course report the outcome of that Council to Parliament
in the usual way.
More generally, I can of course assure you that, although
the Sub-Committee has cleared this proposal from scrutiny, we
shall keep you informed of developments on this matter.
28 November 1997
Letter from Lord Tordoff, Chairman of the Committee,
to Joyce Quin MP, Minister of State, Home Office
Thank you for your recent letter keeping us informed of events
at the Informal Justice and Home Affairs Council held in Luxembourg
on 9-10 October. It is very helpful to know how discussions are
proceeding.
I am pleased to note your intention to keep us informed of
future developments.
10 December 1997
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