Select Committee on European Scrutiny Forty-First Report





COM(00) 578




COM (02)326

Draft Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status.

Amended draft Directive on procedures in Member States for granting and withdrawing refugee status.

Legal base:Article 63 EC; consultation; unanimity
Document originated:(b) 18 June 2002
Deposited in Parliament:(b) 24 June 2002
Department:Home Office
Basis of consideration:EM of 24 September 2002
Previous Committee Report:(a) HC 28-v (2000-01), paragraph 8 (7 February 2001)
To be discussed in Council:No date set
Committee's assessment:Politically important
Committee's decision:(a) Cleared

(b) Not cleared; further information requested


  8.1  The draft Directive aims to set minimum standards for fair and efficient asylum procedures in Member States. As the legal base falls within Title IV of the EC Treaty, the UK had three months from the formal publication of the proposal in which to decide whether to opt in to the measure (in accordance with the provisions in the Protocol on the position of the United Kingdom and Ireland now annexed to the EC Treaty and the Treaty on European Union). It exercised its right to opt in on 23 January 2001.

  8.2  When we considered an earlier version of the draft Directive (document (a)), we noted that negotiations were just beginning and many issues needed detailed discussion, and we therefore kept the document under scrutiny. That was almost two years ago.

  8.3  Our sister Committee in the House of Lords published a report on the proposal in March 2001.[12] While it acknowledged that the measure, in many respects, set out a strong statement of basic principles and guarantees for the protection of asylum applicants, it noted a perceived danger that the establishment of minimum standards might, in practice, lead to a lowering of standards. It identified concerns about the Directive's compatibility with the Geneva Convention and the European Convention on Human Rights and about the adequacy of protection against 'refoulement'.[13] It also raised questions about the accelerated procedure and use of the concepts "manifestly unfounded applications", "safe country of origin" and "safe third country". The report noted criticisms of the provisions on the detention of asylum applicants and those on the appeal procedures.

  8.4  After very slow progress in working groups, the Commission has now submitted an amended draft Directive in an attempt to break the stalemate.

The document and the Government's view

  8.5  The Parliamentary Under-Secretary of State for Race Equality, Community Policy and European and International Policy (Lord Filkin) tells us that the Government, which broadly supported the original proposal, nevertheless welcomes the Commission's attempts to meet the concerns expressed by Member States in working groups. He outlines the four major additions to the proposal:

  • an expansion of the categories of cases that can be considered as manifestly unfounded and inadmissible and dealt with via an accelerated procedure;

  • a faster preliminary examination of repeat asylum applications;

  • an ability to retain existing national border procedures that determine whether an asylum applicant may enter the country (although certain guarantees must be laid down in national legislation by the time the measure is adopted);

  • the ability to detain asylum applicants for up to two weeks in situations where detention is necessary in order for the determining authorities to make a quick decision on the application.

  8.6  The Minister tells us that the UK's problems with the original proposal in the areas of detention and appeals have largely been resolved. In relation to detention, he says:

"The Government expressed previous concerns that the Article relating to detention failed to give full clarification of the circumstances when asylum seekers may be detained. The amended proposal goes much further in describing the circumstances where asylum applicants can be detained. The Government continues to be committed to faster and more efficient asylum procedures and sometimes this requires detaining the applicant in order to deliver a quick decision on their claim. We are pleased to see that the amended proposal allows for this but still imposes a two-week time limit for detention under these circumstances in order to ensure that the individual is not detained for an unreasonable length of time.

"On the whole, the Government is satisfied with the detention provisions in the amended proposal. However, the Government believes that they may need to be clarified in order to make it clear that asylum applicants may also be detained if they pose a serious threat to national security."

  8.7  Turning to appeals, the Minister tells us that the original proposal appeared to give suspensive effect[14] to appeals against removals to other Member States under the terms of the Dublin Convention.[15] The Government's concerns on this issue have been resolved by Article 40(1) of the amended proposal which states that:

"Member States shall lay down in national law those cases in which applicants for asylum lodging an appeal against or requesting a review of a decision taken under the accelerated procedure are not to be allowed to remain on the territory of the Member State concerned pending its outcome."

  8.8  He continues:

"Article 40(2) does however stipulate that an applicant has the right to apply to a court of law to request they rule that the applicant may remain on the territory until a final decision on their application is made. Appeals against third country cases refused under the terms of the Dublin Convention do not attract a suspensive right of appeal in the UK. The applicant may challenge the decision by way of judicial review. We are satisfied that this meets the requirements of the amended Procedures Directive.

"The Nationality Immigration and Asylum Bill proposes to introduce non-suspensive appeals for clearly unfounded cases. As with Dublin cases, an applicant will retain the right to challenge this decision by way of judicial review and removal would not be effected until any judicial review action was completed. The Government is satisfied that this future change in UK domestic legislation will be compatible with Article 39 of the amended Procedures Directive.

"The only concerns that the Government does have about the new Articles 39 and 40 is the competence that appears to have been given to a court of law to intervene of its own accord on failed asylum seekers who do not have a suspensive right of appeal. We do not entirely understand how a court can intervene if it has not been asked to do so and feel this will need clarification and/or amendment once negotiations are underway."

  8.9  The Minister tells us that the Government still has some minor concerns about the requirement to provide applicants with information on procedure in a language that they understand. He adds:

"However, the Government has started introducing Induction Centres and applicants who pass through one of the Induction Centres are given detailed briefing on the asylum process in their own language."

  8.10  The Minister tells us about some other Articles in which the Government will wish to see changes. He says:

"The Government will wish to see changes in Articles 14(1) and 18(1). Article 14(1) sets out the rights of legal advisers and states that legal representatives should be allowed access to any information held on the applicant's file that may be considered by the determining authorities. Unfortunately it is not always possible to allow access to all information held on file in some cases because it may not be disclosable in the public domain, e.g. asylum applications from individuals who may be a threat to national security.

"Article 18(1) states that applicants whose claims are being considered under the terms of the Dublin Convention may be detained until their transfer to the responsible Member State can be effected. This period of detention may not, however, exceed one month. This time limit does not seem reasonable given that the proposed Dublin II Regulation allows one month for a Member State to take charge of a request and a further 6 months in which the transfer is to be effected. The Government expects that other Member States will share our concerns and that this article may change during the course of the negotiations."

  8.11  The Minister comments on the amended proposal in general as follows:

"It could be implied that this is a somewhat watered down version of the original draft Directive that fails to set adequate minimum standards in asylum procedures. The Government does not share this view and is pleased that the Commission has put such an effort into breaking the previous stalemate by producing an amended draft proposal. It must be remembered that asylum procedures vary between Member States, which does not make it an easy task to produce a text acceptable to all delegations and therefore obstruct negotiations on the measures proposed under Article 63 TEC. The Government is satisfied that, although there have been changes to the original Procedures Directive, it does not constitute the lowest common denominator of asylum procedures currently operating in Member States."

  8.12  Finally, the Minister tells us that the Government does not expect the measure to be adopted during the current Danish Presidency.


  8.13  Following our preliminary consideration, we are less confident than the Minister about the changes to this draft Directive, many of which seem to dilute the original provisions. We are, therefore, glad to learn that the proposal will be subject to consultation with NGOs, and ask to be informed of their views, and of the progress of negotiations.

  8.14  With regard to the Government's concerns about the requirement to provide applicants with information on procedure in a language that they understand, we are not clear what the Minister's comment means. Is he saying that the UK will be able to meet the provisions in part, and therefore will not seek to modify them?

  8.15  We clear document (a), since it has now been superseded. We shall keep document (b) under scrutiny until we have the Minister's response.

12  Minimum standards in asylum procedures: 11th Report from the Select Committee on the European Union, HLPaper 59 (2000-01). Back

13  Expulsion or return to a country where the life or freedom of the individual would be threatened. Back

14  i.e. permission for the applicant to remain in the Member State concerned during the appeals procedure. Back

15  OJ L 254/1. Back

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Prepared 25 November 2002