Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 40-59)



Lord Plant of Highfield

  40. There is probably a very simple answer to the question I am going to ask, but I find it difficult to hold in my mind all the different rights that asylum-seekers and refugees eventually get once their claims have been met. Taking the non-mandatory nature of (1) and (2), it is therefore possible across the Union that there would be different approaches, given that these are not mandatory. In (2) is included the question of relevant relatives again, so you might have a non-mandatory system of investigation—not a common system of investigation—together with, across the Union, different levels of generosity, as it were, to family members above the basic standard. If that is right, and if, as the Draft Constitution states, all persons, not just citizens but all persons, of the European Union will have a right of free movement, does this then mean that if in Britain we admit as a refugee a family including the grandmother, based upon some kind of non-mandatory, non-common investigation, then other Union Members would have a duty to allow the free movement of that family, including the grandmother, even though their own standard is the basic one that would exclude the grandmother?

  (Lord Filkin) I am not being trite, but, clearly, the future Convention has not yet been agreed, and therefore in that sense we are talking of a prospective situation. The current situation would be that if we did grant refuge to a family and included in that the grandmother, there is not an automatic right of movement for that family around the European Union; it is governed by other restrictions of movement. I will check this, but I am not aware of anything in the Draft Constitution that looks as if it is likely to change that. I am going from ministerial hunch, rather than detailed checking, and therefore we will go away and check that position.


  41. I was just looking at Article 23 a" propos of Lord Plant's question, and it talks about travel documents. If the applicant for refugee status has got his travel documents, would not the members of the family have the same records allowed in with him?

  (Lord Filkin) Normally, yes.

  42. The answer is that they would be able to travel around with their travel documents.
  (Lord Filkin) If they had it.
  (Mr Douglas) That is if what Lord Plant says happens in the future treaty. At the moment, for example, people with refugee travel documents and their family members who also have travel documents and want to come to the UK have to apply for a visa to seek leave to enter the UK, in the same way that any other third country national would be required to do.

  43. Can I now move to Article 9? That is identifying the actors where allegations of persecution or infliction of serious harm are concerned, and they include, significantly, under (c) non-state actors. Is this a particular problem with Germany? Historically, it has been Germany and France that have not recognised persecution by non-state actors as justifying refugee status, and this is now to be changed. Has this principle been accepted by those two countries?
  (Lord Filkin) You are absolutely right on identifying the two Member States which were resistant to this. Certainly, Germany, and to some degree France, have not fully recognised non-state actors of persecution, and the Directive now sets a standard according to the mainstream interpretation of other Member States, including the UK. France has indicated that it will comply with the Directive and indeed is legislating to that effect. Germany is intending to legislate to get in step with the rest of the EU, but at the moment it is unable to get agreement owing to the problems I mentioned earlier.

  44. Does it need to sort out its constitutional problems before it can agree to this proposed Directive?
  (Lord Filkin) Just so, yes.

  45. Once the Directive is final, then it will be obliged to comply.
  (Lord Filkin) It is a bit of chicken and egg: it is unlikely to agree to the Directive until it is in a position that it can actually put it into effective law, and in its own nation.

  46. Article 9A talks about who can provide the protection, and this also is an advance, in that it makes clear that protection may be adequately provided by somebody other than the state. However, Article 9A(3) reads: "When assessing whether an international organisation controls a state or substantial part of a state 1/4 Member States should take into account any guidance which may be provided in relevant Council acts." What is that talking about, the Council of Ministers or the European Council?
  (Lord Filkin) Perish the thought—formerly the JHA, but in practice the Commission is likely to offer help and to draw up such guidance itself. I expect that the interpretation of that guidance would be a matter for discussion between the Member States, but I do not think it would be a suitable subject for negotiation in a Council working group. The Directive says that Member States shall take the guidance into account when making an assessment.

  47. As it stands, the Council is not in a position to offer guidance.
  (Lord Filkin) In essence you are quite right. That is why I was saying that it would be the Commission that effectively would draw up a document offering advice, which is likely to be blessed by the Council.

  48. Is the Commission in a position to offer this guidance? Does it have the resources, the knowledge and expertise of the territory in question? It does not have diplomatic representation in most of these countries from which asylum-seekers come. How will it know?
  (Mr Douglas) What is envisaged by the drafters in the Commission when they drew up this Article was that Member States, through the Council and with the help of the Commission, would seek information from relevant international organisations that were involved in providing the protection in this particular place, or at least in a position to comment on the effectiveness of such protection in the country concerned. The Council would then draft guidance, with the help of the Commission, based on that information.

  49. It is potentially highly important because it is an obligation of Member States to take into account the guidance; and if a Member State happens to think that the guidance is rubbish and just wrong, what are they do to?
  (Mr Douglas) That is right. The kind of information that I am talking about is information from UNHCR or perhaps UNMIC in the case of Kosovo, and possibly other organisations; and they would formulate the guidance on that basis. You are absolutely right that they would be obliged to take it into account. I am sure that they will take it into account, as they do at the moment in such situations.

  50. I should think that this needs to be tightened up a bit in the drafting—"relevant Council acts".
  (Mr Douglas) We will seek to clarify it with the Commission.

Lord Lester of Herne Hill

  51. I am wondering, Chairman, with respect, whether it is not the contrary; that it does not need to be tidied up, for this reason. Am I not right in thinking that at the moment, for example, an adjudicator like my wife, in deciding this kind of question in an individual appeal, looks at a wide range of material provided by NGOs as well as by UNHCR—through country reports and so on—in order to see what is happening on the ground? Is it not therefore important that the guidance should be broad and derived from that ghastly phrase "civil society", in other words NGOs and others, as well as from UNHCR, so that those who have to make the decisions have as much information as possible to guide them?

  (Lord Filkin) I do not think the two points are in conflict though because this is essentially saying that the guidance will be provided through the Commission from the sources that Mr Douglas signalled. The decision-maker would have to take that into account, as one could well believe they should do, to consider those factors. They are not mechanistically bound—A equals B—and they are not limited from not considering other issues that seem to be relevant to a fair adjudication.
  (Mr Douglas) The organisations I mentioned were just off the top of my head. I certainly did not mean to exclude NGOs from those.


  52. Article 11 of the instrument deals with what are acts of persecution, and Article 14 deals with the circumstances in which somebody may be excluded from refugee status. These Articles contain detailed provisions. These all need to be consistent, plainly, with the Geneva Convention, the Refugee Convention, and I am sure that the drafters of the provisions believe that they are consistent. Have these been approved as being consistent by UNHCR?

  (Lord Filkin) You are absolutely right; the negotiators do consider the entire Directive, including specifically Articles 11 and 14, in regard to whether they are compatible with the Geneva Convention. UNHCR have been participating throughout the negotiation of the Directive. The wording on the exclusion clause in the Directive, for example, was produced in close consultation with the UNHCR, so they have been active participants and advisors to the process.

  53. Coming more particularly to the grounds for exclusion, Article 14B(4) deals with exclusion from Geneva Convention status and refugee status, and Article 71 deals with exclusion from subsidiary protection. The grounds for exclusion are broad, particularly those expressed in Article 17, which refers to serious crimes and so forth. In Article 17(1)D, "the individual constitutes a danger to the community or to the security of the country in which he or she is". Does some clarity need to be introduced as to what would be a serious crime for these purposes, and as to the circumstances in which somebody would be able to be excluded from the status as being a danger to the community? This is perhaps particularly apt at the moment with the problems with Iraq and Al-Qaeda and so forth
  (Lord Filkin) Let me try to respond in two ways. The wording in Article 14B(4), the wording "on danger to the security of the country and danger to the community" is drawn from Article 33(2) of the Refugee convention, and the Directive does not further elaborate on that wording. Similarly, Article 17(1)(d) of the Directive uses the danger to the Community term set out in Article 33(2) of the Refugee Convention, but it does not contain the reference to a particularly serious crime as used in the Refugee Convention. Now, if I could, I suppose, illustrate it by how the United Kingdom would approach these issues. There is no international or domestic definition of a serious crime, or a serious non-political crime. However, for Refugee Convention purposes our domestic legislation defines a particularly serious crime—I think it was part of the Nationality & Immigration Asylum Act of last year—as one for which a custodial sentence of at least two years has been imposed. The serious crime logically, therefore, would have a lower threshold than this and, as a rough guide rather than as a rule, a custodial sentence of 12 months or more.

  54. Would it not be a good idea to read that and to write that into the instrument so that there is perhaps a consistency across the Union as to what does constitute a serious crime?
  (Lord Filkin) There are two answers to that point. One is the practical one, as to whether that would make it more or less likely we would get an agreement. The second more fundamental one is the extent to which an exact harmonisation of rules is either necessary or desirable if the central objective is to try to make an impact on the collective issues of asylum and illegal migration in the Union. All I would signal—although I did amplify it with what I said at the beginning—is we have increasingly said from the United Kingdom into the Justice and Home Affairs Committee recently that there is only so much progress that will be made in terms of addressing the asylum issue through an exact harmonisation of rules and regulations between countries. Some harmonisation is desirable for two reasons. One, that it ensures that there is a minimum standard of justice that applies, and by these measures we have raised that minimum standard of justice. The second is that it may have a bearing on secondary migration movements, but one should not get overexcited about the extent to which it will actually have an effect on secondary movements, because there are very many other more powerful factors that affect secondary movements rather than the nature of the protection. Therefore, the third point that we are saying is that whilst we want to get these things agreed, because they are part of moving forward from Tampere, we have to face measures which will actually address the reality of the problems as well as just the procedures.

  55. Yes. One of the main reasons for wanting to achieve agreement on the four elements of the asylum package is to produce a degree—not complete—of at least some harmonisation of asylum law and procedures, so as to prevent individual countries from being regarded by asylum seekers as, so to speak, "honeypots". Where you have the serious crimes provision, if you get any great discrepancy between country A and country B—both Member States—as to what constitutes a serious crime, you will get the criminals who would be not excluded in one country but would be excluded in another coming to the former. That must be a thoroughly undesirable state of affairs, and I would have thought this was an area where you needed as close harmonisation as possible for that reason, is that not right?
  (Lord Filkin) I understand the argument. I think that criminals will come to different countries according to where they think there is the best prospects of actually pursuing criminality.

  56. Surely, if they get admitted they are going to be barred.
  (Lord Filkin) I think criminals that want, say, for example, to undertake drug running or asylum smuggling means of entries do not usually depend on them claiming asylum in the country. They will make entry by a whole variety of means and pursue one. They will basically use fraudulent documentation to get in and they are not likely to particularly want to pursue that by registering an asylum claim. They have got plenty of other sources of finance or refuge than that. I would not feel that this was the greatest threat to undermining a control of the numbers.

  Chairman: Yes.

Lord Lester of Herne Hill

  57. Could I just ask for some information how Article 17(1)(b), and for that matter (a), is logically related to Article 14B(4)? I have been trying to work out exactly how it works. If I can say what I think its position is and be corrected when I am wrong. In Article 17 you can exclude a third country national or a stateless person from subsidiary protection if there are serious reasons for considering that they have committed a war crime, or a crime against peace, or a crime against humanity, or a serious crime, something less than that and other matters as well. That is pretty clear and rather wide. Serious crime, presumably, can include robbery; robbing a bank, I do not know. That is a way of keeping people out from subsidiary protection. When you get to Article 14B, taking away a status that has been granted to someone as a refugee, you can take it away in apparently much narrower circumstances, that is to say: ". . .reasonable grounds for regarding him or her as a danger to the security of the Member State. . .", say the UK, or ". . .having been convicted by a final judgment of a particularly serious crime, constituting a danger to the community of that Member State. . .". Then the footnote says that includes war crimes, crimes against humanity and so on. Is the position that if someone is a refugee and comes into this country and then commits murder, or robbery, that would not be a particularly serious crime constituting a danger to the community of the United Kingdom and, therefore, they would not have the status taken away from them?

  (Lord Filkin) In the example that you give of someone committing a bank robbery, we would see that as both a serious crime and a danger to the community.

  58. You would?
  (Lord Filkin) Yes, we would. I think I said as much when we were discussing the Nationality & Immigration Asylum theme.

  59. That would be a particularly serious crime. In spite of the footnote that makes it look as though it is intended that something as serious as a crime against humanity, or a war crime, it does not say a serious crime, it says: ". . .a particularly serious crime. . .".
  (Lord Filkin) It does.

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