3. COMMISSION PROPOSALS FOR JOINT ACTIONS
CONCERNING TEMPORARY PROTECTION OF DISPLACED PERSONS
Letter from Lord Tordoff, Chairman of
the Committee, to Kate Hoey MP, Parliamentary Under-Secretary
of State, Home Office
Sub-Committee F considered the proposed Joint
Actions on temporary protection and solidarity at its meeting
on 18 November. As well as your Department's Explanatory Note
of 26 August 1998, the Sub-Committee received written evidence
on the revised proposals from Justice a copy of which I attach
(not printed). The Sub-Committee notes that both Joint
Actions are included in the provisional agenda for the Justice
and Home Affairs Council on 3 and 4 December. The document number
in the agenda does not seem to correspond to the version submitted
for scrutiny. The Sub-Committee would be grateful for confirmation
that it has the latest documents.
In its letter of 29 July 1997
commenting on the Commission's original proposal, the Sub-Committee
noted the desirability of increased co-operation in establishing
and winding up temporary protection regimes and in an equitable
sharing of responsibility among Member States. It would seem that
the Government continues to have serious reservations with regard
to the revised proposals.
The Sub-Committee would be grateful if the Government
could clarify its position on the following points:
(i) the Government states that it wishes
to retain the possibility of acting differentially or independently
once a temporary protection regime has been set up. The current
proposal on temporary protection establishes minimum rights for
beneficiaries of temporary protection. Member States have flexibility
to extend, but not to diminish, these rights. Is the Government's
intention in seeking greater flexibility to offer less favourable
conditions to beneficiaries of temporary protection than are envisaged
in the proposal? Is there not a risk that such flexibility would
lead to a competitive, downward spiral in the rights offered by
(ii) could the Government's concerns be allayed
by providing for unanimity both in the establishment and conclusion
of a temporary protection regime, or does it also seek other substantive
changes to the text?
(iii) what impact would the Government's
proposals in its White Paper on asylum and immigration have on
beneficiaries of temporary protection under the Commission's draft
Joint Action if they were to seek asylum in the UK?
(iv) would the proposal on solidarity be
acceptable if the Statement in the Council Minutes were to be
incorporated in the text of the Joint Action?
(v) what advantages might there be for the
UK in agreeing the Joint Actions before the Amsterdam Treaty enters
into force? If this does not prove to be possible, would the Government
wish to exercise its opt-in right?
In responding to the above matters, the Sub-Committee
would be grateful if you could comment on the new points raised
by JUSTICE. The Sub-Committee would also welcome a report on progress
made at the December Justice and Home Affairs Council. The Sub-Committee
wishes in the meantime to keep both proposals under scrutiny.
19 November 1998
Letter from Kate Hoey MP, Parliamentary
Under-Secretary of State, Home Office, to Lord Tordoff, Chairman
of the Committee
Thank you for your letter of 19 November.
Firstly, you refer to the difference between
the reference number of the document presented for discussion
at the Justice and Home Affairs Council on 3 December and that
of the one deposited for scrutiny. The document on the table at
the Council, which I attach for information, is one the Presidency
produced in the light of discussions under the Austrian Presidency
in the relevant EU fora. It contains a number of proposed revisions
to the Commission texts, which have not been agreed. We have taken
the view that this revision is not of sufficient significance
to merit separate deposit. It is likely that the text will go
through a number of further revisions over the coming months and
we will of course look closely at these and consider whether they
should be deposited.
The most substantial changes in the revised
texts proposed by the Presidency are:
that the social provision for beneficiaries
of the temporary protection regime should not necessarily be equivalent
to that given to recognised refugees;
that the primary emphasis in the
solidarity proposal should be on burden sharing in terms of people
rather than funds.
You asked for clarification of the Government's
position on a number of points:
(i) Our desire to retain the flexibility
to act differentially or independently once a temporary protection
regime has been established is not based on a wish to offer less
favourable conditions to beneficiaries of the regime than other
Member States. It reflects, rather, the fact that we consider
it is important that the UK retains the right to decide to which
and to how many persons it is to offer protection in the event
of a crisis of the sort envisaged. Since we cannot predict the
course of such an influx, it would be irresponsible of us to agree
to a measure that might mean that the UK would have to provide
protection to unlimited numbers of displaced persons. The UK is
likely to remain an attractive destination for those seeking protection
and we must retain the freedom, if necessary, to limit the scope
of the regime in the light of our national interest.
(ii) We believe, as do a number of other
Member States, that an EU wide temporary protection regime should
only be established by unanimity. It would be wrong in principle
for the measure to allow the possibility that an individual Member
State could be required to provide such a regime against its wishes.
As far as ending such a regime is concerned, we see the sense
in Member States agreeing to curtail their protection simultaneously.
But if the regime could only be ended by unanimity, it would allow
for the possibility of a single Member State insisting that other
Member States continued to provide protection beyond the period
they thought necessary.
You ask whether providing for a decision to
be taken by unanimity would allay our concerns about the proposal.
It would not; we would like to see further substantive changes
before we could consider accepting the proposal. In addition to
the points I have already mentioned, we think there would have
to be agreed arrangements for the screening of applicants to ensure
that they really belong to the group in need of protection. Also
we think there would have to be provisions governing the movement
of beneficiaries within the EU. Secondary migration could be a
(iii) Under the Commission's proposal, Member
States would be free to decide, in accordance with their national
law, whether or not to suspend the consideration of asylum applications
by the beneficiaries of a temporary protection regime. This would
be a decision to be taken by individual states in the context
of the particular crisis. I would not expect that anything in
our proposals on asylum and immigration would impinge on our ability
to take one or other of these courses of action.
(iv) We accept that it is possible that circumstances
might arise in the future where it would be appropriate for EU
Member States collectively to help one or more Member States particularly
affected by an influx. We are not persuaded that a framework which
provided for a response based essentially on financial support
using community funding would be the right answer. Firstly it
may be that there would be circumstances where sharing responsibility
in terms of people should be an element of the solution. Secondly,
decisions on the distribution of community funding could only
govern how money is allocated, not how much money individual Member
States contributed to the budget. This would mean that the distribution
of Community funding could not fully take account of the fact
that some Member States were making contributions to a crisis
in terms of military and humanitarian aid. These were recognised
as important factors in any decisions under the 1995 Resolution
on burden sharing.
(v) I think it extremely unlikely that these
proposals would be ready for agreement before the Amsterdam Treaty
enters into force. If they were, it would not be surprising if
the Commission came forward with proposals to replace them with
First Pillar instruments. Whether the UK would wish to exercise
its right to participate in such measures I cannot say at this
stage. We have, I think, a clear interest in co-operating with
our neighbours in responding to a future mass influx, but much
would depend on the form the measure took and on a careful assessment
of our national interest.
You also asked for comments on points raised
by JUSTICE in their letter of 11 November by Tom Mohan. I attach
an annex dealing with their concerns.
Finally, you asked for a report on progress
made at the Justice and Home Affairs Council on 3-4 December.
There is little of substance to report. There was an exchange
of views on the proposal. We made our position clear and a number
of other Member States indicated that they had some fairly fundamental
reservations. The Presidency concluded that work should continue
on the draft Joint Actions under the German Presidency.
16 December 1998
Letter from Lord Tordoff, Chairman of
the Committee, to Kate Hoey MP, Parliamentary Under-Secretary
of State, Home Office
Thank you for your letter of 16 December enclosing
the revised Presidency texts discussed by Ministers at the December
Justice and Home Affairs Council. Sub-Committee F considered these
documents at its meeting on 3 February.
The Committee expressed regret and concern that
the revised texts had not been made available to it sooner. The
changes introduced by the Presidency appear not only to affect
the level of protection available to the individuals concerned
but also alter substantially the nature of the obligations to
be assumed by the Member States. The Committee expects to be informed
of such changes more promptly and, in particular, to have early
sight of revised texts prepared for Council meetings.
Having examined the revised proposals, the Committee
would be grateful for clarification of the following matters:
PRESIDENCY (i) Temporary
You state that, under the revised Presidency
text, beneficiaries of a temporary protection regime would not
necessarily be entitled to social provision equal to that available
to recognised refugees. This is reflected in Articles 8 and 9.
Access to employment and general education, remuneration, social
security and other working conditions would be available on the
same terms as apply for "legally resident aliens". Access
to medical care would be "according to (their) immediate
needs". Member States would not have to apply the same criteria
as govern the provision of housing to recognised refugees. Under
Article 7, there would no longer be a right to family reunification,
merely a possibility.
What does the Government understand by the term
"legally resident aliens" and what is their position
under domestic law in relation to the matters covered by Articles
7-9? To what extent, if any, does this differ from the position
of recognised refugees? Could you please comment further on the
impact of the White Paper "Fairer, Faster And FirmerA
Modern Approach To Immigration and Asylum" will have
on the social provision available to "legally resident aliens"
who have not been recognised as refugees? Is the White Paper approach
consistent with the Presidency's revised text?
As you note in your letter, the central thrust
of the solidarity mechanism has shifted from that of financial
support to the distribution of people according to an agreed allocation
scale. The Presidency's revised text creates an obligation (where
previously there was a discretion) to agree a burden sharing mechanism
whenever a temporary protection regime is set up. There is no
longer a requirement to consult the United Nations High Commissioner
for Refugees before establishing such a regime
Does the Government support the shift in emphasis
towards burden sharing in terms of people rather than funds? Would
it be possible, in your view, to establish a mechanism for Community
funding which took into account military or humanitarian aid provided
by Member States from their national budgets? How significant
a problem will this be once the new financing arrangements (under
Article 28 of the consolidated Treaty on European Union) for action
taken within the framework of the EU's common foreign and security
policy enter into force?
You state that "it would be irresponsible
of us to agree to a measure that might mean that the UK would
have to provide protection to unlimited numbers of displaced persons".
The Council Decision establishing a temporary protection regime
must stipulate the specific group of persons to which it applies.
The burden sharing mechanism is intended to limit the number of
displaced persons taken in by each Member State by means of an
agreed allocation scale. Does the Government accept that, if all
Member States sought the same flexibility as the UK to limit the
scope of the regime after it had been agreed, this would undermine
substantially the principle of solidarity?
You express concern that secondary migration
might be a serious problem. Can you explain why you believe this
to be the case, since Community law does not currently provide
for the free movement of third country nationals. Do you not consider
that the Amsterdam Protocol concerning the application of Article
7a adequately safeguards the UK's position if the other Member
States agree to lift internal border controls on third country
nationals under the new Title IV once the Amsterdam Treaty is
The Committee would welcome your views on Article
4(3). This would seem to allow a temporary protection regime to
be phased out by default. It also omits the requirement, included
in the earlier text, that priority be given to voluntary repatriation.
Given the potential hardship for the individuals concerned, do
you consider that a failure to act on the part of the Council
provides a sufficient basis for the withdrawal of temporary protection?
The Committee has also considered your comments
on the points raised by JUSTICE and notes, in particular, that
the Government will take these into account when deciding whether
to opt in to proposals under Article 63 of the consolidated EC
Treaty establishing a common EC asylum and immigration policy.
The Committee wishes to express its concern at the statement in
the Explanatory Memorandum that the Government's policy in relation
to Third Pillar asylum and immigration proposals is not developed
in consultation with outside interests. This is a significant
omission. The Committee believes that the Government should consult
extensively on matters affecting individual rights and liberties.
4 February 1999
Letter from Kate Hoey MP, Parliamentary
Under-Secretary of State, to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 4 February advising
of the areas on which the Committee sought further clarification.
My officials have forwarded to the Clerk of
your Committee a further revision of the text of the proposal
on temporary protection and a separate discussion document on
solidarity in burden sharing which the Presidency has prepared
(Documents 5682/99 and 5645/99). I attach a supplementary Explanatory
Memorandum in relation to these texts. I will of course continue
to keep you informed of significant developments with these proposals.
I should emphasise that there is still no real
consensus on the way forward on these proposals. There was some
discussion at the Informal Justice and Home Affairs Council in
Berlin on 11-12 February on some new ideas from the Presidency
on burden sharing. These are set out in the discussion document.
It was agreed only that discussions should continue on these.
It is likely that we will see a number of further revisions of
the texts of proposals over the coming months.
Recent developments have overtaken one or two
of the points on which you sought clarification of the Government's
You asked about our understanding of the term
"legally resident alien" in Article 8 and the sort of
social provision such persons would be entitled to now and under
the proposals outlined in the White Paper. The term "legally
resident alien" which was proposed by the Presidency did
not have a clear meaning for a number of Member States and has
now been replaced. There is a reference not to equality of treatment
between beneficiaries of a temporary protection regime and recognised
refugees in terms of "remuneration and other working conditions"
in Article 8. Otherwise the text proposes leaving the matter of
social provision under Articles 7 to 9 as things to be governed
by national law. The Presidency has done this because of the difficulty
it has experienced in identifying an acceptable common approach.
This change has not been subject to any detailed discussion and
it should not be assumed that such an approach reflect any consensus
between Member States. For our part, we recognise the difficulty
of finding acceptable minimum standards but some such standards
would be desirable in terms of helping reduce pull factors to
particular Member States.
As to what social provision might be afforded
persons granted temporary protection in the UK, most persons allowed
to stay for humanitarian reasons at present are generally granted
Exceptional Leave to Remain (ELR). As such they benefit from broadly
the same social provision as recognised refugees. The only significant
difference being that they have to wait four years for family
reunion rights. It does not follow, however, that we would argue
that such standards should apply in all future circumstances.
We believe that the Commission's proposal should contain some
flexibility. What is appropriate in a particular situation may
depend on the precise circumstances of any influx. The protection
might, for instance, only be needed for a relatively short period
during which it would not be appropriate to provide the full range
of entitlements associated with ELR.
The revised support arrangements in the Asylum
and Immigration Bill are not directly relevant to this issue.
These arrangements will apply to asylum seekers; not to persons
we decide to grant temporary leave to remain on humanitarian grounds.
You ask the Government's views on the shift
of emphasis to burden sharing in terms of people rather than funds.
As you will see from the Presidency's discussion paper, both elements
feature strongly. The Presidency are suggesting an arrangement
under which Member States declare at an early stage of any crisis
the numbers of persons they would be prepared to accept and under
which Member States would receive financial support in relation
to those persons to whom they provide protection.
Our general attitude to this issue that any
arrangements under which it is decided that there was a case for
Member States assisting each other should be flexible so as to
take full account of the many factors which would be relevant
to deciding whether and what assistance should take place. It
is possible to envisage circumstances where a case could be made
for either physical or financial burden sharing and also circumstances
where neither or both would be appropriate. We are examining the
Presidency's new proposals and discussing them in the relevent
You ask whether it would be possible to establish
a mechanism for Community funding which took account of spending
by Member States in areas such as military and humanitarian aid.
I do not see any straightforward way that this could be achieved
under the structures of the Amsterdam Treaty. The contribution
each Member States makes to individual Community funding programmes
cannot be adjusted to take account of such factors. As for the
financing arrangements for action within the framework of the
EU's common foreign and security policy, I do not see that there
would be any significant read across to the burden sharing proposals.
These arrangements are not intended to subsidise large scale involvement
by Member States on the ground in a crisis region.
As I outlined in my letter of 16 December, we
believe flexibility is very important in terms of the nature of
a temporary protection regime as well as in respect of burden
sharing. What might constitute an appropriate response by an individual
Member State to a mass influx of persons is a matter where particular
national circumstances could have a significant bearing. Much
may depend on the scale or the rate of the influx into a particular
Member State and on that State's links with the crisis region.
It is likely that it would be very difficult
in practice to enforce any decision which sought to limit the
numbers of persons for whom a particular Member State would be
responsible. Substantial numbers of persons would be likely to
have entered the territory by the time any decision was made to
establish a temporary protection regime and the influx would be
likely to continue over an extended period. Many persons would
probably make their own travel arrangements ahead of or bypassing
any centrally organised distribution scheme. Some would have reasons
for making their way to particular Member States and some would
be likely to move on to what they felt might be better circumstances
in another Member State. Also we could find, as we have with the
Kosovan situation, that people not in need of protection impersonate
those belonging to the target group. Once persons in such a situation
arrived on a Member State's territory it could be very difficult
to remove them, even if there was another Member State willing
to take them.
Such factors argue for a degree of national
discretion in deciding how beneficiaries of such a regime are
to be treated. For instance, one Member State might be so overwhelmed
by numbers that it would not make sense for it to continue providing
the social benefits normally associated with the regime to new
In addition, once a temporary protection regime
had been established, circumstances might arise where there was
a divergence of view among Member States as to whether the regime
was still necessaryperhaps there had been an improvement
but not a resolution of the crisis in the region of origin. Unless
there was flexibility to withdraw from the scheme, some Member
States could find that they were forced to grant protection which
they considered to be unnecessary. Such an approach would, I believe,
go beyond the framework of co-operation provided for by the Amsterdam
Treaty. A key feature of any successful arrangement must be, I
think, that it is voluntary. Immigration and asylum matters are
not ones over which some Member States are ready to relinquish
national control in this way.
The concerns about "secondary migration"
I expressed in my letter of 16 December were in relation to illegal
migration. Whatever Community law provides in respect of the free
movement of third country nationals, it cannot prevent them moving
between Member States altogether. A very large proportion of persons
who claim asylum in the UK have travelled across the EU illegally
and many of these we know have had their asylum claims rejected
in other Member States.
As I have explained, I think it important that
any EU temporary protection regime operates with the consent of
all Member States. If a regime has run its course and there is
not the consensus to extend it, this does not mean that each Member
State will cease to provide protection to those in need of it.
A failure to act on the part of the Council does not alter individual
Member States responsibilities. Member States will continue to
be bound by their obligations under the 1951 Convention and the
European Convention on Human Rights, in particular, not to remove
persons who would face serious harm.
I am grateful for you commenting on the reference
to our consultation arrangements in last years' Explanatory Note
on these proposals. This statement does not reflect our policy
and should not have been included in the Note. I am sorry for
this error. Consultation arrangements on Third Pillar asylum and
immigration proposals are decided on a case by case basis. In
addition to the comments you have forwarded from JUSTICE, my officials
have discussed these particular proposals informally with representatives
of UNHCR, Refugee Council and ILPA. We value the views of these
organisations on these matters.
25 February 1999
Letter to Lord Tordoff, Chairman of the
Committee, to Kate Hoey MP, Parliamentary Under-Secretary of State,
Thank you for your letter of 25 February enclosing
a revised Presidency proposal for a joint action on temporary
protection and a discussion paper on solidarity in burden sharing.
The Committee has also considered your Supplementary Explanatory
Memorandum. It has decided to hold both proposals under scrutiny.
The Committee has noted your comment that there
is no real consensus on the proposals and that there is likely
to be a number of further revisions over the coming months. The
question of the UK's opt-in will also arise once the Amsterdam
Treaty enters into force. The Committee questions whether the
degree of flexibility you are seeking is consistent with the post-Amsterdam
arrangements. You emphasise the need for a "voluntary"
arrangement, as "immigration and asylum matters are not ones
over which some Member States are ready to relinquish national
control in this way". This may be the case for the UK and
Ireland, with their flexible opt-in rights, and for Denmark with
its opt-out. But the remaining 12 Members are required, under
Article 63(2) of the amended EC Treaty, to set minimum standards
for temporary protection and to adopt measures promoting a balance
of efforts between Member States "in receiving and bearing
the consequences of receiving". It seems to the Committee
that the question of whether the UK will wish to exercise its
opt-in to Title IV measures lies at the heart of many of the points
you have raised.
Finally, the Committee welcomes your comments
on consultation. We hope that consultation with interested organisations
will become a regular feature of the Government's approach to
Third and, in future, First Pillar proposals on asylum and immigration.
23 March 1999
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