Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 20-39)



Lord Lester of Herne Hill

  20. As the sponsor of the Civil Partnerships Bill in this House, of course I am very pleased to see that the definition gives protection to gay and lesbian couples in stable relationships, if the national law allows it. However, what I simply cannot understand at all is why the negotiators have moved from the position last year where the elderly dependant grandmother was protected and had not even written in a provision like the one for gay and lesbian couples. There is not even that protection and I simply do not understand what has induced other Member States—because I am sure it cannot be our own—to adopt such a narrowly restrictive approach, unless it is the mindless bureaucratic rubber-stamping of Dublin, which cannot be in itself sufficient explanation since the measure presumably was not meant simply to be Dublin writ large, as it were. Can I have an explanation as to what is behind this narrowing?

  (Mr Douglas) Most Member States that perhaps would have liked a slightly more favourable provision for Article 2J are able to give a more favourable interpretation by virtue of Article 4, which says that Member States may introduce or retain more favourable standards for determining who qualifies as a refugee, and in determining the content of international protection in so far as those standards are compatible with the Directive. There is nothing to stop a Member State from accepting the grandmother or great-grandmother as a member of the family if they wanted to do so.


  21. The draft clauses of the new constitution, or some of those we have seen in this Committee of the Giscard D'Estaing proposals for the new constitution, refer to the values of the Member States of the European Union. Surely, the terms of a Directive such as this ought to reflect those values? I find it very difficult to believe that the responsibility for aged parents, who have become dependent, does not form part of the values of the European Union that ought to be reflected in the minimum standards that find their way into this Directive. If that is right, should the UK Government not be pressing that point?

  (Lord Filkin) Our job is to press to try to get what we think are the best set of standards that can be agreed. What I mean by that is that we press on many issues on these negotiations, but if it is a choice between pressing for an issue and getting a total failure to agree, our position is that we would be worse off in that situation than getting an agreement that does at least not require us, or others who have got higher standards, to lower them; but it does require those who have got extremely poor standards indeed to raise them. That is the nature of these negotiations that one is making some progress but not as much as everyone would ideally wish.

  22. So far as getting agreement is concerned, is agreement from the entrant countries being obtained?
  (Lord Filkin) No. In essence, the accession states are not negotiators to this agreement. They now sit in—for the first time on the last occasion—the Justice and Home Affairs meeting; but they are not decision-makers. If and when—and we hope it will be sooner rather than later—there is agreement to this measure, then the accession states are obliged to implement it in full. That is, of course, a further benefit, in the sense that it ensures that some of those who would have very weak systems or protection measures are therefore obliged to meet them.

Lord Plant of Highfield

  23. Given that going beyond the minimum standard within a particular state is a matter for discretion, could you either explain or speculate about how that would be dealt with within a jurisdiction like the United Kingdom? It looks as though it is going to be a highly discretionary kind of judgment that is made by whoever is making the judgment. How far will reasons be given for refusing the admission of a grandmother in one case and allowing the admission of a grandmother in another case, if this discretion is exercised against the background of assumed cultural differences such that this family coming from place X expects to support the grandparents, whereas with another family coming from place Y that would not be the expectation? If things are as discretionary and individualised as that, is this not going to be a Mare's Nest for appeals and reviews and so forth by authorities? I cannot quite see how the system can be as discretionary as that without getting into a bigger mess.

  (Lord Filkin) It is not discretionary in very many respects. In the Framework Agreement, if it is agreed between the 15 Member States, there is an obligation on all 15 Member States to adjust their national law, to ensure that their national law is compliant. Therefore, there is no discretion not to meet that minimum standard. The only discretion comes about whether the State chooses in its own legislation or procedures to go further; and then every State has to look at every individual application on their merits and make judgments on their merits against the regulations, laws and rules that they have in place, including the Framework Agreement to do so. I do not wish to over-labour the point about the North and the South to extremes, and there are very, very many different reasons for why people would choose to lodge an asylum claim in different countries; but if you look at the level of asylum claims that are currently registered in the southern European States and compare them with the northern European States, there are absolutely massive differences. Some of those reasons may be differences in opportunities for employment in those areas; but some of it will certainly be because the levels of protection and support have been historically so much lower in southern European States and the process that underpin that, than has been the case with the northern States. I do not think we expect this measure by itself, or even the raft of four or five measures that make up the temporary asylum process, by themselves transform the world. They do start to raise some of the minimum standards for some States that are at very low standards indeed, in terms of their processes and the protections and support that they give to people who qualify.

Lord Neill of Bladen

  24. You earlier gave an answer about what, in effect, it is like to negotiate. I must say that I was a little bit depressed by what you said because we are really dealing with this definition which raises ethical questions of who should be entitled to the protection and benefit of this. The question is how you define this and what you try to negotiate for. If it is a matter of justice or basic ethical positions, should not our Government try to argue for what is right? You may get driven off that and you may find that the other States will not accept your position, but should that not be the beginning, rather than to start with a compromise, which I read into your rather pessimistic approach that you would not persuade other States to accept the definition that some sitting around this table would like to see?

  (Lord Filkin) I probably gave a wrong gloss on that. I was describing the later stages of a negotiation, the choice faced by all Member States—and that is why the pressure comes on all Member States—as to whether it is worth compromising to get something out of the negotiation rather than having the whole negotiation collapse. This has been in negotiation for how long, would you say?
  (Mr Douglas) For approximately nine or ten months. We started at the beginning of the Danish presidency.
  (Lord Filkin) It must be longer than that because we gave evidence on this a year ago; it must be substantially longer than that.
  (Mr Douglas) The discussions in the working group began under the Danish presidency.
  (Lord Filkin) All I was signalling is that there comes a point at which you have to start making those compromises. Currently, there is massive pressure on the Germans by the other 14 Member States who are close to wanting to make it, but we are hopeful that that will not lead to a collapse of the negotiation but a movement from the German because of the pressure that an isolated State feels in that negotiation when they are the only one effectively blocking an agreement.

Lord Lester of Herne Hill

  25. In answer to Lord Plant's question, I was not clear about the precise position that will obtain in the UK. Am I right in thinking that so far as immigration rules are concerned, it is clear that family membership includes elderly dependent relatives? Will there not be a similar definition for the purpose of refugee status in UK law that will cover the elderly dependant grandfather or grandmother so that the kind of problems raised by Lord Plant will have been regulated in the rules that the adjudicator has to apply?

  (Mr Walsh) We have a mix of things, depending on different circumstances. As you say, there are things in the immigration rules which might deal with elderly dependants. If you look at the position on asylum-seekers or refugees, there are things in our published policy instructions that are not immigration rules but instructions we are obliged to follow, which talk in very general terms about people who, although they may not be spouses or children under 18, are nevertheless considered to be dependent upon the asylum-seeker or the refugee. In a way, this emphasises some of the difficulties about getting agreement on a Directive because even in the UK law, although we do apply more generous terms than are set out in this Directive, it is not as if we have a clearly set-out categorised and highly-defined set of groups of dependants who would qualify; it is a case of taking account in individual cases of various different circumstances—caseworkers guided by policies to try and take decisions. Those decisions, if they are not in immigration rules, would be susceptible to judicial review. If they are in the immigration rules they can form part of appeals. It is a difficult area because there are lots of individual circumstances to take into account, and trying to fit all of that into a neat definition in a Directive is a challenge in itself, quite apart from the differences of view expressed around that table.


  26. Lord Filkin, can you help me with a mystery? The document that has been deposited with us has, under Article 6, which appears to have been removed, in brackets "(see new Article 21A)". The document does not contain an Article 21A. Are you able to throw light on this puzzle?

  (Lord Filkin) I shall certainly seek help from my officials.
  (Mr Douglas) I am not sure we have a copy of that, but we can certainly write to you.

  27. Is it something we do not have but which we ought to have?
  (Mr Douglas) I do not think so; I think it would have been something that was moved from one part of the Directive to another.

  28. It certainly has not been put into Article 21A, because there is not one.
  (Lord Filkin) We will write to you.

  29. Article 7 sets out various procedures to be followed in dealing with an application for refugee status or subsidiary protection status, as the case may be; but it starts by saying: "Member States may consider it the duty of the applicant to submit 1/4" That sounds as though these procedures are to be optional. Is that right or wrong?
  (Lord Filkin) They are of the nature of recommendations to Member States about the factors that they should consider when they are making judgments on asylum applications. They are advisory in that respect.

  30. How do these mesh with the provisions of the Draft Procedures Directive, which is the final part that has not yet been agreed, as I understand it?
  (Lord Filkin) You are quite right. It is envisaged that the Procedures Directive will refer directly to Article 7 in the Articles that relate to the personal interview and the obligations of the determining authority of the applicant; so there will be cross-reference.

  31. Somewhere, will minimum standards for procedures be expressed, rather than leaving it simply in the optional sense that is conveyed by the use of the word "may"?
  (Lord Filkin) Article 7, in a sense, covers the assessment of the facts of the circumstances of a claim for international protection. As I indicated, they are recommendations to Member States of what are the key elements of a State's determination. They cover the facts that should be looked at, and how to assess the relationship between the person's circumstances and the persecution or exposure to serious harm. Some Member States thought that this might be better placed in the Procedures Directive as it does detail a list of procedures to be followed. In its explanatory memorandum, the Commission said that the applications should be examined on a case-by-case basis, which must be right, in relationship to the objective conditions known to exist in the country of origin or habitual residence at the time of making the application or a plea for refuge. Therefore, we thought it made sense to offer guidance in this Directive on the assessment and the information required, which would help Member States assess the relationship between the applicant and the circumstances of the country of origin.

  32. For example, is paragraph 3 of this Article also optional, or is that going to constitute a minimum standard? It reads, "The assessment is to be carried out 1/4. These are things that must be taken into account."
  (Mr Douglas) That is right. If a Member State is going to consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the claim, then the elements must follow the sequence that is set out in Article 3.

  33. Once an application has been made, it has to be assessed; and the assessment requires to be taken into account, as I read (3), the various matters referred to in the five sub-paragraphs.
  (Mr Walsh) That is right because (3) is somewhat different from (1) and (2) in that it is mandatory to all. Where (1) and (2) come in is in sub-paragraph (v).

  34. I am grateful; so (1) and (2) are optional and (3) is mandatory.
  (Lord Filkin) We believe that that is the case. I am going to put this into writing to you to make sure it is beyond doubt.

  35. On the footing that (1) and (2) are optional, I imagine that the United Kingdom will adopt the approach contained in those.
  (Lord Filkin) Yes.

  36. Are other Member States likely to do so? What is the position about that, or do you not know?
  (Mr Douglas) We expect so because these are the key principles of assessing a claim, and these are the key principles of a State's determination, referred to, for example, in the UNHCR handbook on criteria for determining claims. We expect that most Member States, if they are going to determine a claim, would go about it in this way.

Baroness Thomas of Walliswood

  37. Is this at all linked to the question of having to be dealt with in the country of first entry?

  (Lord Filkin) I do not think so.

  38. I was thinking of people who had not had to submit a claim in country A because country A would do it much more slowly and would not require them to do it as soon as possible, because that is what (1) is about, is it not? It has to be done as soon as possible.
  (Lord Filkin) You are correct, but it is not related to whether they should have claimed in Greece rather than in Britain. Of course, Dublin 2 bites on that. It would be up to us if we believed there was documentation.

  Baroness Thomas of Walliswood: I just wondered whether that was going to raise its ugly head again.

Lord Lester of Herne Hill

  39. I apologise for asking a technical question, but I do not understand the phrase in Article 7(5)(c) "specific and general information relevant to his/her case". As I understand it, this is a very complicated paragraph. I think it is saying that you do not need confirmation if you are applying Article 7(1) and the following conditions are met; you do not need to check. One of them, at (c), is, "if the applicant's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to his or her case". I understand "specific information" or "information", but what I do not understand is why it says "specific and general". I am thinking simply of fairness here. It has got to be relevant to his or her case, but what is this talking about when it talks of "general" information as distinct from "specific" information?

  (Mr Douglas) It is the way these things are drafted. They often come out in rather peculiar ways. When we talk about specific information, we mean specific information relating to that person's claim, which the determining authority may or may not know bout, for example if they belong to a certain political party and they organised a demonstration on a certain date, that may be documented. The general information would be that police descended on that demonstration on that day, and that generally members of that political party are persecuted in that country. You are quite right to say that really it is to do with the information.

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