Select Committee on European Communities Eleventh Report



Letter from Lord Tordoff, Chairman of the Committee, to the Rt Hon Jack Straw MP, Home Secretary, Home Office

  The above proposal was considered by Sub-Committee F. As well as your Department's Explanatory Note of 20 May, the Sub-Committee received written evidence submitted by Justice and the Immigration Law Practitioners' Association (ILPA) on the proposal, copies of which I attach [not printed].

  The Sub-Committee noted that the United Kingdom already has arrangements for dealing with people requiring temporary protections which are both flexible and effective and that the Government would not want the flexibility to react quickly to situations to be lost as a result of this proposal. Nevertheless, the Sub-Committee believes that recent events in the former Yugoslavia and Albania have highlighted the desirability of having increased co-operation between Members States over the Commencement and conclusion of temporary protection regimes so as to ensure an equitable sharing of responsibility among Member States for mass influxes from Third countries. The Commission's proposal sets down minimum standards and it would leave it open to the United Kingdom to offer more generous provisions.

  Both ILPA and Justice believe that there is merit in a co-ordinated response from potential host countries and welcome the majority of the substantive provisions contained in the proposal. There are, however, several provisions of the proposal which they consider give rise to concern:

  (a) They comment on the lack of clarity in the terms used in Article 1. For example, the Article defines mass influx of persons in the need of international protection" as the arrival within the Union of a significant number of persons. It is unclear whether this must be statistically significant taking into account the total population of the Union or significant in terms of the State where the mass influx occurs. A similar concern arises in relation to the termsafe return under humane conditions" used Article 4 (Revision and/or phasing out of temporary protection regimes). Both organisation comment that it is not entirely clear what this means and that it would be more appropriate to adopt the concept of return in safety and dignity" which is used in the UNHCR Handbook on voluntary repatriation;

  (b) Article 7 proposes a right to family reunification, but limits this right to the nuclear family. It leaves it up to Member States to lay down the conditions for admission of dependent family members who do not belong to the nuclear family. Justice comment that it may be appropriate in some cases for family reunification to be allowed for broader categories of family members. Both organisations welcome, however, the provision in Article 7.2 which expressly provides that the absence of documentary proof of the family relationship shall not in itself be considered an impediment to family reunification;

  (c) Article 10 provides that Member States may postpone the examination of an asylum application by a person under temporary protection for the duration of the temporary protection regime. It sets a five-year maximum time limit on postponement. Both ILPA and Justice consider this clause unsatisfactory. Justice believes that as currently formulated the Article has the potential to undermine minimum international standards of asylum protection by leaving scope for Member States to avoid their treaty obligations. They believe that a Member State's right to postpone examination of asylum claims should be limited. Furthermore, they argue that five years is too long to postpone claim examinations and suggest that two years would be more appropriate. Finally, they suggest that there should be a positive obligation on Member States to consider any claim for protection which is still outstanding at the end of the temporary protection period. The Sub-Committee notes that in your Department's Explanatory Note (para 25 of the Explanatory Note) it is stated that it is not clear whether it would be lawful in the United Kingdom deliberately to defer consideration of an asylum application. The Sub-Committee would welcome further information on this point;

  (d) Article 11 contains a number of exclusion clauses, which are directly derived from Articles 1(F) and 33 of the 1951 Geneva Convention on the Status of Refugees. Both Justice and ILPA believe that this Article deviates from Member States' obligations under Article 3 of the European Convention on Human rights and the jurisprudence of the European Court of Human rights which has held that the protection of Article 3 is absolute and admits of no exceptions even on national security grounds. The Sub-Committee would welcome the Government's views on the evidence received on this Article; and

  (e) Article 13 provides that at the end of five years after the introduction of a temporary protection regime, Member states should examine whether long-term measures should be introduced for beneficiaries of temporary protection. Both ILPA and Justice believe that the time after which people may apply for long-term protection on humanitarian or compassionate grounds should be shorter. Justice favours a two year period whilst ILPA suggests, by reference to the EEC/Turkey Association Agreement, that a four year period should apply. The Sub-Committee would be grateful for any comments you might have on the suggestions made by ILPA and Justice.

  On a more general point the Sub-Committee welcomes the thorough and professional way the Commission has presented this proposal. The Explanatory Memorandum accompanying the text of the proposal provides a useful explanation of what the objective of the proposal is, why it is being presented at this time and what the expected added value of the measure would be. The Sub-Committee considers that this should form a model of how other Third Pillar proposals should be presented.

  The Sub-Committee notes that the Luxembourg Presidency has made the adoption of this joint action a priority for its term in office. In light of the impending summer recess the Sub-Committee has decided to clear the proposal from scrutiny but would like your views on the matters raised above and has asked to be kept informed of developments.

29 July 1997

Letter from Joyce Quin MP, Minister of State, Home Office to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 29 July to the Home Secretary concerning the European Commission's proposal for a joint action concerning the temporary protection of displaced person (Document Number 7042/97)

  I am grateful to the Sub-Committee for having cleared this proposal from scrutiny, in light of the need for discussions to continue during the recess. I was also grateful for your comments and for you bringing to my attention those of justice and ILPA. I am now responding to your request for our views on several matters which have been raised by those organisations.

  Before I do so, perhaps I could make a general point. The Government continues to place importance on the ability of Member States to react as flexibly as possible to situations of mass influx. We are concerned that a measure along the lines proposed would restrict that flexibility and would not readily be adaptable to any future crisis. We also have doubts about the necessity and desirability of further measures on burden-sharing. In 1995, the Council adopted a Resolution on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis and (in 1996) a consequential Decision on an alert and emergency procedure.

  I should also emphasise that, as I am sure you will appreciate, this document is still at a very preliminary stage of discussion. As such, detailed disclosure of our views on particular Articles could be detrimental to our negotiations. I hope, therefore, that you will be understanding of 1 concentrate on our overall policy and aims.

  The first point which you draw to our attention relates to the clarity of the terms used in Article 1. Our concern here in negotiation would be to ensure that the Council should retain as much flexibility as possible.

  As you note, the provisions for family reunification in Article 7 would allow the right of family reunification to extend only to spouses and minor and dependent children. We agree that there may be compelling compassionate circumstances where it would appropriate to allow family reunion with other family members, for instance elderly parents. To attempt, however, to frame such a provision in Article 7, given divergences in Member States practice on this issue, is likely to be difficult.

  We recognise that the provision in Article 10 raises some difficult issues in respect of Member States obligations under the 1951 Convention. It is, however, also important to recognise that whether it would be practicable or acceptable to postpone consideration of asylum claims will need to be considered in close conjunction with the proposals made in Articles 6 and 9 which provide for the rights of the beneficiaries of the temporary protection regime.

  Article 11 (the exclusion clauses) are directly derived, as you say, from the exclusion clauses in the 1951 Geneva Convention. We assume that the Commission's reasoning behind this is that the Joint Action would provide rights similar to those granted to Convention refugees. but it is debatable whether precisely the same provisions should be extended to the beneficiaries of the temporary protection regime. As to Article 3 of the European Convention on Human Rights, there would, of course, be no question of the joint action limiting Member States' obligations under Article 3.

  Turning to Article 13, the position in the United Kingdom is that settlement for those granted refugee status is normally granted after four years and after seven years for those granted exceptional leave to remain. Coincidentally, you may also wish to note that in June this year the Government announced that the Temporary Protection Programme in relation to Bosnia would end, roughly five years after its introduction. Whether the proposal is right to identify five years as the standard period after which to consider the situation is again a matter we will be considering further.

  In conclusion, I should like to re-iterate that this proposal as a whole is still at a preliminary stage of discussion, and there still needs to be further debate about how the various Articles interact with each other and with existing provision in the Member States to guarantee the position of persons in need of international protection.

  I am, however, grateful for your comments and for those of ILPA and Justice, which I have ensured have been passed on to those dealing with the detail of this policy area. I will of course keep you informed of any subsequent significant developments in relation to this proposal.

1 October 1997

Letter from Lord Tordoff, Chairman of the Committee, to Joyce Quin MP, Minister of State, Home Office

  Thank you for your response dated 1 October to my letter dated 29 July. Sub Committee F (Social Affairs, Education and Home Affairs) reconsidered this matter at its meeting on Thursday 6 November and noted that the Government's primary objective in the negotiations is to ensure that Member States retain the ability to react as flexibly as possible to situations of mass influx as they arise.

  I understand that the negotiations on this matter are still at a preliminary stage but that the proposal was discussed at the recent informal Justice and Home Affairs Council held on 9-10 October. Press reports suggest that there was a divergence of views among the Member States on several important questions such as how the financial burden of a mass influx of refugees should be shared among Member States and the compatibility of the proposed text with the 1951 Geneva Convention on the Status of Refugees. The Sub-Committee would welcome a report of the discussions at the recent Council meeting on this matter.

  Although the Sub-Committee has already cleared this proposal from scrutiny it wishes to be kept informed of further developments as they arise.

12 November 1997

Letter from Joyce Quin MP, Minister of State, Home Office, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 12 November about this proposal.

  I am unable to provide you with a formal report of the discussions of this issue at the Informal Justice and Home Affairs Council which was held on 9-10 October in Luxembourg. As you know, these are informal occasions on which Ministers can discuss key topics without coming to formal conclusions. Nevertheless, you refer correctly to a divergence of views among the Member States and I think it only right that I should expend on this to you without attributing differing views to specific Member Status.

  Member States ultimately concluded at the Informal Council that the Geneva Convention could not be suspended in relation to beneficiaries of a temporary protection regime but significant differences of opinion remained on other important issues. For example, the UK would wish to see the issue of burden-sharing to be tackled on the basis of the measures already adopted by the Council while some other Member States hold as firm a view that a measure on temporary protection is unacceptable to them without specific provisions for burden sharing, including a distribution of the financial burden and the distribution among the Member States of the European Union of the displaced persons themselves, including enforcement action if necessary.

  These were the main substantive items discussed at the informal Council but they are not the only issues of difficulty identified in discussions in the working group meetings of officials which include divergence of views as to the role of the Commission in establishing and winding-up a temporary protection regime and voting procedures.

  The Luxembourg Presidency's current intention is to place temporary protection on the agenda of the formal Justice and Home Affairs Council next week. I hope it will possible to promote a policy discussion there on the practicality of taking the issue forward on the basis of the Commission's text given the real and divergent views of Member States on some of its provisions. We shall of course report the outcome of that Council to Parliament in the usual way.

  More generally, I can of course assure you that, although the Sub-Committee has cleared this proposal from scrutiny, we shall keep you informed of developments on this matter.

28 November 1997

Letter from Lord Tordoff, Chairman of the Committee, to Joyce Quin MP, Minister of State, Home Office

  Thank you for your recent letter keeping us informed of events at the Informal Justice and Home Affairs Council held in Luxembourg on 9-10 October. It is very helpful to know how discussions are proceeding.

  I am pleased to note your intention to keep us informed of future developments.

10 December 1997

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1998