Examination of Witnesses (Questions 40-59)|
CBE, MR IAIN
WEDNESDAY 14 MAY 2003
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 investigationnot
a common system of investigationtogether 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
(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
(Lord Filkin) Perish the thoughtformerly 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
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
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 UNHCRthrough country
reports and so onin 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
boundA equals Band 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
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
(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
crimeI think it was part of the Nationality & Immigration
Asylum Act of last yearas 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
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
(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 signalalthough I did
amplify it with what I said at the beginningis 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
55. Yes. One of the main reasons for wanting
to achieve agreement on the four elements of the asylum package
is to produce a degreenot completeof 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
Bboth Member Statesas 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.
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
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.