Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 1-19)




  1. Lord Filkin, thank you very much for coming again to help us with our scrutiny. I think that Mr Douglas has been before, but I am not sure whether Mr Walsh has.

  (Mr Walsh) I was here once.

  2. We are grateful to both of you for coming. The subject we wanted to have your help on is the new proposal for defining the minimum standards for the status and qualification of refugees and applicants for subsidiary protection. This was the subject of a report which the Select Committee produced in July last year, since which time, as I understand it, the proposed Directive has undergone considerable drafting changes. Lord Filkin, what have been the main changes in the Directive since we last saw it and reported on it?
  (Lord Filkin) There have been, as you say, quite a range of developments, so I hope you will bear with me if I run through those. In the last part of last year, they focused on the cessation and exclusion clauses in the Directive, and these now oblige Member States to exclude from refugee or subsidiary protection status an applicant who fulfils the criteria set out in Articles 14 and 17. If a person's refugee status was up for renewal, it would also be refused if the person had ceased to be a refugee in accordance with Article 13. Next, Article 15, which defines serious harm, has also been narrowed and brought more into line with Articles 2 and 3 and Protocol 6 of ECHR. Member States agreed that it would be preferable to include this as a baseline for this definition, as there were widely diverging views on what should comprise serious harm. Turning to this year's discussions, they have focused on the rights and benefits attached to refugee status and subsidiary protection. Member States have agreed that it is reasonable that the difference between refugee status and other forms of international protection is acknowledged in this part of the Directive, and that it is reasonable for the Directive to allow flexibility at the domestic level, for Member States to make appropriate arrangements for subsidiary protection. Some non-governmental organisations have queried the scope for differentiation in rights and benefits between refugee status and subsidiary protection, but most Member States, including ourselves, agree that there should be some differentiation to acknowledge the primacy of refugee status and the often more temporary nature of subsidiary protection. Member States have widely divergent approaches in the European Union to subsidiary protection, ranging from the guarantee of the same treatment as refugees as in the Netherlands to only guaranteeing protection at very basic levels of provision, as in Greece, for example. Clearly, that range of differences has accounted for some of the difficulty in seeking to reach a consensus. That is why this Directive guarantees a minimum level of provision, and we believed that that is welcomed. But these are minimum standards, and this is the first step in this direction for some Member States. Our general view is that it is beneficial to have established minimum levels, as the documentation would state, if and when it is agreed. We are aware that one cannot expect to go too fast at this stage, and it is envisaged that a greater harmonisation of approaches to subsidiary protection should take place perhaps at a later stage in the building of a common system.

  3. Picking up your last point, that a greater degree of harmonisation may take place later, is that anything more than an aspiration?
  (Lord Filkin) In a sense, it is open to debate within the European Union about the balance to be struck in the development of—to use a shorthand term—the common European asylum policy, as to what extent primacy should be given to further harmonisation of rules and processes, and to what extent effort should be put on action to address some of the problems at their source and try to increase the ability of Member States to co-operate on operational matters rather simply on procedural matters. That is an active debate that is going on within the Justice and Home Affairs Committee currently. One expects in practice that we will be doing both in the future; it is the balance between them that is the debate.

  4. As you rightly said, the Directive is setting minimum standards, and that is to be welcomed because that will require some Member States to raise their standards to the minimum required level. The other possibility is that this may lead to a lowering of standards by those countries—and I am sure we are among them—that offer rather better rights and guarantees to refugees and those seeking subsidiary protection, than the minimum standards require. When you spoke of harmonisation, I was wondering whether there was any danger that there would be a levelling down.
  (Lord Filkin) We expected that the main thrust of the regulation would be a movement upwards of those who currently have extremely low levels of protection, particularly the subsidiary protection. The debate about harmonisation of standards, of course, is in part a debate as to what extent harmonisation of protection is weighted towards ensuring that there are minimum decent standards for applicants, and to what extent it is a prime measure to reduce the totality of flows into the European Union, or to address secondary movements.

  5. I was going to ask what the state of play is regarding this particular Directive. There has not yet been any agreement in any respect concerning it, I think.
  (Lord Filkin) You are absolutely right. I suppose the short answer is that the main problem is really with Germany, and we spent most of our time on this measure when we discussed it at the Justice and Home Affairs Committee last week, and the difficulties that Germany was having in coming into line with others—

  6. Is that the non-state actor point?
  (Lord Filkin) It essentially relates to their problem with the overturn of their immigration legislation by their constitutional court, and how they are trying to bring their legislation into accord with their constitutional court position, and the politics of that, and also the relationships on so doing with the—

  7. It is not the substance of the proposals so much as the internal constitutional arrangements for getting changes.
  (Lord Filkin) I think there are issues of substance as well, again in summary around subsidiary protection, particularly around the issue of whether employment, for example, might be one of the issues—employment rights of people and subsidiary protection.

  8. But there has not yet been anything that could be described as an agreement or a general approach or anything like that.
  (Lord Filkin) You are absolutely right in that respect. There has not, and therefore the last Justice and Home Affairs discussion on this was that we all felt it was bound to be stalled because the work had not been resolved within Germany. Since then, although we have not yet seen it, we gather that the Greek presidency is about to bring forward for the attention of Member States revised proposals by the Germans—and it will then be deposited . Whilst I have not received this, I gather there is some movement in those, and therefore we are looking forward to seeing them.

  9. I would like to ask you about the new, rather stricter, definition of "family member" in Article 2J. When we were looking at the then current version last year, the expanded definition of "family member" was very greatly welcomed by some of the NGOs whose representatives gave evidence to us. They particularly liked what was then Article 2J(c) with the additional chance of including as family members people who, though not blood relatives in the narrow sense, lived with as though part of the family. That has now gone. There has not been any consultation or representations that you have received from any of the NGOs about this change?
  (Lord Filkin) Let me address the substance and then ask Phil Douglas to deal with what we have heard domestically from NGOs on it. What has happened in essence is that the proposed definition of the Directive has now been made consistent with that which was agreed and adopted in the Dublin 2 Regulations. From our perspective, we think that is right for two reasons: there is, in principle, an attractiveness in having consistent definitions running through, with respect to agreements; and, second, we do not wish from the UK perspective—and others share our view—to see a wider or inconsistent definition in the text. That is because we believe there is a need for some caution in that distant relationships can be more difficult to establish. In the case of minors, there are certain risks as well, as we know from the Victoria Climbié case. Therefore, the Directive starts from a position of using the nuclear family as the definition of "family". Again, of course, these are minimum positions, and therefore it is open for the States to go further, either in principle or on the merits of an individual case, according to their own judgments.

  10. The text of the previous version I have in front of me had a paragraph which referred to "other close relatives who lived together as part of the family unit at the time of leaving the country of origin, and who were wholly or mainly dependent on the applicant at that time." That has come out. I think the UK Government agreed to that at the time. Do they still think that that is a good idea?
  (Lord Filkin) I think that our view is as I have just described it; we think that using a consistent definition of a Dublin 2, focused on the family definition, is a sound principle; and I reiterate that that leaves it open to any Member State to go further if they would wish to do so. (Mr Douglas) It is open to Member States to go further if they consider a case is worthy of that. On the consultation with the NGOs, we do consult with representatives from NGOs four or five times a year on these Directives, and we have detailed discussions. We have maintained that position of consistency with the other regulations with the NGOs. In some respects, we would have liked to have seen a slightly wider definition; however, it is what can be agreed during the negotiations which is important. We felt it was important to stick with the consistency that we had achieved with Dublin 2 for the practical reasons that Lord Filkin has just explained.

Lord Lester of Herne Hill

  11. I would like to try and work out what this means in practice. I take it that the definition of "family members" is important for Article 21 on maintaining family unity because that is where one has the idea of family members brought in. Is that right? Then, if one looks at Article 21, it is quite narrowly drawn, is it not? It says: "Member States must ensure that family members of the beneficiary 1/4 who do not individually qualify for such status, are entitled to claim the benefits referred to in this chapter 1/4 (2) That protection does not apply when the family member is, or would be excluded from, refugee or subsidiary protection status pursuant to Chapters 3 and 4." We are dealing with quite a narrow scope of protection in Article 21, are we not?

  (Lord Filkin) Yes.

  12. If we then go back to the definition of "family member", by cutting it down in order to mimic the Dublin Convention definition, does this not mean that somebody's grandmother, an elderly dependent grandmother, who has been living as a member of the family in the country of origin and who, going back to Article 21, would otherwise be included in refugee or subsidiary protection under Chapters 3 and 4—she is no longer to be within the protection of this instrument unless a Member State chooses to be more generous.
  (Lord Filkin) You are correct.

  13. Does that not seem—if I can put it in a moderate way—a remarkably mean and ungenerous approach to the concept of family, when even somebody's dependent grandmother who has been living with the family is now, under this change, to fall outside the scope of protection?
  (Lord Filkin) I think the problem is essentially (a) of defining where one draws the line on this—and Member States could reach a consensus around nuclear family, and therefore have done so. Certainly, in many cases the United Kingdom would go further than that in the circumstances you have instanced, if we believed that that was genuinely the situation that pertained in that family. In a sense, it is the nature of these agreements that what can be reached, even though it may not go as far as some would wish, is significantly better than making no progress at all.

  14. Has the British Government been trying to adopt a more generous approach and failed to do so? Is that the position?
  (Mr Douglas) I do not think it is quite as simple as that. It is a process of negotiation. If we look at Article 2J(I) for example, we have the phrase "or her unmarried partner in a stable relationship where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens". That is an example of the kind of compromise which these texts often produce. When Angela Eagle gave evidence here a year ago, she made what she described later as a throw-away remark; but she said it was the Liberal north versus the Catholic south on these kinds of issues. I think there is some truth in that. We have to arrive at a definition that is acceptable to all Member States, and that often makes for difficult drafting like that. In that instance, for example, the UK would have supported an unmarried partner in a stable relationship full-stop, but other Member States wanted to qualify that. We saw no reason—


  15. There is surely not a difference in approach as between the liberal north and the catholic south if one is considering the position of dependent mothers of the applicants.

  (Mr Douglas) No, of course not in cases like that.

Baroness Thomas of Walliswood

  16. I would like to return to the dependent grandmother. If a person seeking refugee status actually qualifies for that refugee status, he or she will have suffered, or be likely to suffer, persecution, hardship, damage or whatever it is, whether by the state in which he or she is a citizen or by non-state powers, that is, by revolutionary forces or whatever it is in that state. My feeling would be that almost anybody who had lived with such a person would be classed by the state as just as likely to have, as it were, their nose chopped off as the person himself—you are guilty by association with your son or whatever it is, especially if you have been living in the same household. I do not know whether that is a relevant consideration, and whether we, in facing up to a number of people coming in, would allow that consideration to be a valid argument in favour of granting asylum or some kind of protective status to an accompanying dependent adult.

  (Lord Filkin) In a sense, although I should be cautious about giving "in principle" answers when dealing with varying circumstances. What I signalled previously is that if, in the circumstances you described, our assessment did lead us to the conclusion that the grandmother had been part of that family in those circumstances, it could well be that we would have granted protection, along with other family members. In a sense, there is not a full answer to what you are arguing other than the fact that this is a process of negotiation that requires one to reach agreement; and in a sense it is a statement about what it looks has been agreeable to all 15 Member States, leading to an appreciable levelling of the minimum standards in some areas. By definition it goes further than some are comfortable with, and does not go as far as others would wish.

  17. The concept of a nuclear family is a modern Western concept. It is relatively recent, even in this country in the state where we are now—two adults normally, or even one adult living with their children: that is the nuclear family. Even when I was young, that was not necessarily the typical family; and in other countries it certainly is not the typical family. That is why the use of the words "family members" could be deceptive to the people who were applying.
  (Lord Filkin) At one level you are right. In a sense it touches on some of the difficulties that underpin the discussions on this. In the circumstances you have described, whilst it is a very plausible argument that you are making, that a grandmother who had been living with the rest of the family in such a situation—that would appear to be very valid. The same would not necessarily go to every other family member.

  18. I understand that.
  (Lord Filkin) There is an enormous difficulty about whether you draw a line at first, second or third—not to be trivial. In a perfect world, of course, these would not be issues, because everybody presented for asylum would be telling the truth. I do not need to go into those issues and pressures.

  19. Those who themselves are in danger of all the things which prevent family members would come in as their own applicants, as it were. So a brother or sister who was equally in danger, and who had established that, would have their own asylum process.
  (Lord Filkin) Indeed so, yes.
  (Mr Walsh) I was going to make that very point, that under the UK provisions, and is covered by the procedures Directive, if someone wishes to make a claim in their own right, they must be entitled to do so; and a family member is just as entitled as anyone else to apply. If they do qualify, then, yes, indeed, they are subject to the main provisions.

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