Select Committee on European Communities Seventeenth Report


Letter from Lord Tordoff, Chairman of the Committee, to Kate Hoey MP, Parliamentary Under-Secretary of State, Home Office

  Sub-Committee F considered the proposed Joint Actions on temporary protection and solidarity at its meeting on 18 November. As well as your Department's Explanatory Note of 26 August 1998, the Sub-Committee received written evidence on the revised proposals from Justice a copy of which I attach (not printed). The Sub-Committee notes that both Joint Actions are included in the provisional agenda for the Justice and Home Affairs Council on 3 and 4 December. The document number in the agenda does not seem to correspond to the version submitted for scrutiny. The Sub-Committee would be grateful for confirmation that it has the latest documents.

  In its letter of 29 July 1997[3] commenting on the Commission's original proposal, the Sub-Committee noted the desirability of increased co-operation in establishing and winding up temporary protection regimes and in an equitable sharing of responsibility among Member States. It would seem that the Government continues to have serious reservations with regard to the revised proposals.

  The Sub-Committee would be grateful if the Government could clarify its position on the following points:

    (i)  the Government states that it wishes to retain the possibility of acting differentially or independently once a temporary protection regime has been set up. The current proposal on temporary protection establishes minimum rights for beneficiaries of temporary protection. Member States have flexibility to extend, but not to diminish, these rights. Is the Government's intention in seeking greater flexibility to offer less favourable conditions to beneficiaries of temporary protection than are envisaged in the proposal? Is there not a risk that such flexibility would lead to a competitive, downward spiral in the rights offered by Member States?

    (ii)  could the Government's concerns be allayed by providing for unanimity both in the establishment and conclusion of a temporary protection regime, or does it also seek other substantive changes to the text?

    (iii)  what impact would the Government's proposals in its White Paper on asylum and immigration have on beneficiaries of temporary protection under the Commission's draft Joint Action if they were to seek asylum in the UK?

    (iv)  would the proposal on solidarity be acceptable if the Statement in the Council Minutes were to be incorporated in the text of the Joint Action?

    (v)  what advantages might there be for the UK in agreeing the Joint Actions before the Amsterdam Treaty enters into force? If this does not prove to be possible, would the Government wish to exercise its opt-in right?

  In responding to the above matters, the Sub-Committee would be grateful if you could comment on the new points raised by JUSTICE. The Sub-Committee would also welcome a report on progress made at the December Justice and Home Affairs Council. The Sub-Committee wishes in the meantime to keep both proposals under scrutiny.

19 November 1998

Letter from Kate Hoey MP, Parliamentary Under-Secretary of State, Home Office, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 19 November.

   Firstly, you refer to the difference between the reference number of the document presented for discussion at the Justice and Home Affairs Council on 3 December and that of the one deposited for scrutiny. The document on the table at the Council, which I attach for information, is one the Presidency produced in the light of discussions under the Austrian Presidency in the relevant EU fora. It contains a number of proposed revisions to the Commission texts, which have not been agreed. We have taken the view that this revision is not of sufficient significance to merit separate deposit. It is likely that the text will go through a number of further revisions over the coming months and we will of course look closely at these and consider whether they should be deposited.

  The most substantial changes in the revised texts proposed by the Presidency are:

    —  that the social provision for beneficiaries of the temporary protection regime should not necessarily be equivalent to that given to recognised refugees;

    —  that the primary emphasis in the solidarity proposal should be on burden sharing in terms of people rather than funds.

  You asked for clarification of the Government's position on a number of points:

    (i)  Our desire to retain the flexibility to act differentially or independently once a temporary protection regime has been established is not based on a wish to offer less favourable conditions to beneficiaries of the regime than other Member States. It reflects, rather, the fact that we consider it is important that the UK retains the right to decide to which and to how many persons it is to offer protection in the event of a crisis of the sort envisaged. Since we cannot predict the course of such an influx, it would be irresponsible of us to agree to a measure that might mean that the UK would have to provide protection to unlimited numbers of displaced persons. The UK is likely to remain an attractive destination for those seeking protection and we must retain the freedom, if necessary, to limit the scope of the regime in the light of our national interest.

    (ii)  We believe, as do a number of other Member States, that an EU wide temporary protection regime should only be established by unanimity. It would be wrong in principle for the measure to allow the possibility that an individual Member State could be required to provide such a regime against its wishes. As far as ending such a regime is concerned, we see the sense in Member States agreeing to curtail their protection simultaneously. But if the regime could only be ended by unanimity, it would allow for the possibility of a single Member State insisting that other Member States continued to provide protection beyond the period they thought necessary.

  You ask whether providing for a decision to be taken by unanimity would allay our concerns about the proposal. It would not; we would like to see further substantive changes before we could consider accepting the proposal. In addition to the points I have already mentioned, we think there would have to be agreed arrangements for the screening of applicants to ensure that they really belong to the group in need of protection. Also we think there would have to be provisions governing the movement of beneficiaries within the EU. Secondary migration could be a serious problem.

    (iii)  Under the Commission's proposal, Member States would be free to decide, in accordance with their national law, whether or not to suspend the consideration of asylum applications by the beneficiaries of a temporary protection regime. This would be a decision to be taken by individual states in the context of the particular crisis. I would not expect that anything in our proposals on asylum and immigration would impinge on our ability to take one or other of these courses of action.

    (iv)  We accept that it is possible that circumstances might arise in the future where it would be appropriate for EU Member States collectively to help one or more Member States particularly affected by an influx. We are not persuaded that a framework which provided for a response based essentially on financial support using community funding would be the right answer. Firstly it may be that there would be circumstances where sharing responsibility in terms of people should be an element of the solution. Secondly, decisions on the distribution of community funding could only govern how money is allocated, not how much money individual Member States contributed to the budget. This would mean that the distribution of Community funding could not fully take account of the fact that some Member States were making contributions to a crisis in terms of military and humanitarian aid. These were recognised as important factors in any decisions under the 1995 Resolution on burden sharing.

    (v)  I think it extremely unlikely that these proposals would be ready for agreement before the Amsterdam Treaty enters into force. If they were, it would not be surprising if the Commission came forward with proposals to replace them with First Pillar instruments. Whether the UK would wish to exercise its right to participate in such measures I cannot say at this stage. We have, I think, a clear interest in co-operating with our neighbours in responding to a future mass influx, but much would depend on the form the measure took and on a careful assessment of our national interest.

  You also asked for comments on points raised by JUSTICE in their letter of 11 November by Tom Mohan. I attach an annex dealing with their concerns.

  Finally, you asked for a report on progress made at the Justice and Home Affairs Council on 3-4 December. There is little of substance to report. There was an exchange of views on the proposal. We made our position clear and a number of other Member States indicated that they had some fairly fundamental reservations. The Presidency concluded that work should continue on the draft Joint Actions under the German Presidency.

16 December 1998

Letter from Lord Tordoff, Chairman of the Committee, to Kate Hoey MP, Parliamentary Under-Secretary of State, Home Office

  Thank you for your letter of 16 December enclosing the revised Presidency texts discussed by Ministers at the December Justice and Home Affairs Council. Sub-Committee F considered these documents at its meeting on 3 February.

  The Committee expressed regret and concern that the revised texts had not been made available to it sooner. The changes introduced by the Presidency appear not only to affect the level of protection available to the individuals concerned but also alter substantially the nature of the obligations to be assumed by the Member States. The Committee expects to be informed of such changes more promptly and, in particular, to have early sight of revised texts prepared for Council meetings.

  Having examined the revised proposals, the Committee would be grateful for clarification of the following matters:


  You state that, under the revised Presidency text, beneficiaries of a temporary protection regime would not necessarily be entitled to social provision equal to that available to recognised refugees. This is reflected in Articles 8 and 9. Access to employment and general education, remuneration, social security and other working conditions would be available on the same terms as apply for "legally resident aliens". Access to medical care would be "according to (their) immediate needs". Member States would not have to apply the same criteria as govern the provision of housing to recognised refugees. Under Article 7, there would no longer be a right to family reunification, merely a possibility.

  What does the Government understand by the term "legally resident aliens" and what is their position under domestic law in relation to the matters covered by Articles 7-9? To what extent, if any, does this differ from the position of recognised refugees? Could you please comment further on the impact of the White Paper "Fairer, Faster And Firmer—A Modern Approach To Immigration and Asylum" will have on the social provision available to "legally resident aliens" who have not been recognised as refugees? Is the White Paper approach consistent with the Presidency's revised text?

(ii)   Solidarity

  As you note in your letter, the central thrust of the solidarity mechanism has shifted from that of financial support to the distribution of people according to an agreed allocation scale. The Presidency's revised text creates an obligation (where previously there was a discretion) to agree a burden sharing mechanism whenever a temporary protection regime is set up. There is no longer a requirement to consult the United Nations High Commissioner for Refugees before establishing such a regime

  Does the Government support the shift in emphasis towards burden sharing in terms of people rather than funds? Would it be possible, in your view, to establish a mechanism for Community funding which took into account military or humanitarian aid provided by Member States from their national budgets? How significant a problem will this be once the new financing arrangements (under Article 28 of the consolidated Treaty on European Union) for action taken within the framework of the EU's common foreign and security policy enter into force?


  You state that "it would be irresponsible of us to agree to a measure that might mean that the UK would have to provide protection to unlimited numbers of displaced persons". The Council Decision establishing a temporary protection regime must stipulate the specific group of persons to which it applies. The burden sharing mechanism is intended to limit the number of displaced persons taken in by each Member State by means of an agreed allocation scale. Does the Government accept that, if all Member States sought the same flexibility as the UK to limit the scope of the regime after it had been agreed, this would undermine substantially the principle of solidarity?


  You express concern that secondary migration might be a serious problem. Can you explain why you believe this to be the case, since Community law does not currently provide for the free movement of third country nationals. Do you not consider that the Amsterdam Protocol concerning the application of Article 7a adequately safeguards the UK's position if the other Member States agree to lift internal border controls on third country nationals under the new Title IV once the Amsterdam Treaty is in force?


  The Committee would welcome your views on Article 4(3). This would seem to allow a temporary protection regime to be phased out by default. It also omits the requirement, included in the earlier text, that priority be given to voluntary repatriation. Given the potential hardship for the individuals concerned, do you consider that a failure to act on the part of the Council provides a sufficient basis for the withdrawal of temporary protection?

  The Committee has also considered your comments on the points raised by JUSTICE and notes, in particular, that the Government will take these into account when deciding whether to opt in to proposals under Article 63 of the consolidated EC Treaty establishing a common EC asylum and immigration policy. The Committee wishes to express its concern at the statement in the Explanatory Memorandum that the Government's policy in relation to Third Pillar asylum and immigration proposals is not developed in consultation with outside interests. This is a significant omission. The Committee believes that the Government should consult extensively on matters affecting individual rights and liberties.

4 February 1999

Letter from Kate Hoey MP, Parliamentary Under-Secretary of State, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 4 February advising of the areas on which the Committee sought further clarification.

  My officials have forwarded to the Clerk of your Committee a further revision of the text of the proposal on temporary protection and a separate discussion document on solidarity in burden sharing which the Presidency has prepared (Documents 5682/99 and 5645/99). I attach a supplementary Explanatory Memorandum in relation to these texts. I will of course continue to keep you informed of significant developments with these proposals.

  I should emphasise that there is still no real consensus on the way forward on these proposals. There was some discussion at the Informal Justice and Home Affairs Council in Berlin on 11-12 February on some new ideas from the Presidency on burden sharing. These are set out in the discussion document. It was agreed only that discussions should continue on these. It is likely that we will see a number of further revisions of the texts of proposals over the coming months.

  Recent developments have overtaken one or two of the points on which you sought clarification of the Government's position.


  You asked about our understanding of the term "legally resident alien" in Article 8 and the sort of social provision such persons would be entitled to now and under the proposals outlined in the White Paper. The term "legally resident alien" which was proposed by the Presidency did not have a clear meaning for a number of Member States and has now been replaced. There is a reference not to equality of treatment between beneficiaries of a temporary protection regime and recognised refugees in terms of "remuneration and other working conditions" in Article 8. Otherwise the text proposes leaving the matter of social provision under Articles 7 to 9 as things to be governed by national law. The Presidency has done this because of the difficulty it has experienced in identifying an acceptable common approach. This change has not been subject to any detailed discussion and it should not be assumed that such an approach reflect any consensus between Member States. For our part, we recognise the difficulty of finding acceptable minimum standards but some such standards would be desirable in terms of helping reduce pull factors to particular Member States.

  As to what social provision might be afforded persons granted temporary protection in the UK, most persons allowed to stay for humanitarian reasons at present are generally granted Exceptional Leave to Remain (ELR). As such they benefit from broadly the same social provision as recognised refugees. The only significant difference being that they have to wait four years for family reunion rights. It does not follow, however, that we would argue that such standards should apply in all future circumstances. We believe that the Commission's proposal should contain some flexibility. What is appropriate in a particular situation may depend on the precise circumstances of any influx. The protection might, for instance, only be needed for a relatively short period during which it would not be appropriate to provide the full range of entitlements associated with ELR.

  The revised support arrangements in the Asylum and Immigration Bill are not directly relevant to this issue. These arrangements will apply to asylum seekers; not to persons we decide to grant temporary leave to remain on humanitarian grounds.


  You ask the Government's views on the shift of emphasis to burden sharing in terms of people rather than funds. As you will see from the Presidency's discussion paper, both elements feature strongly. The Presidency are suggesting an arrangement under which Member States declare at an early stage of any crisis the numbers of persons they would be prepared to accept and under which Member States would receive financial support in relation to those persons to whom they provide protection.

  Our general attitude to this issue that any arrangements under which it is decided that there was a case for Member States assisting each other should be flexible so as to take full account of the many factors which would be relevant to deciding whether and what assistance should take place. It is possible to envisage circumstances where a case could be made for either physical or financial burden sharing and also circumstances where neither or both would be appropriate. We are examining the Presidency's new proposals and discussing them in the relevent EU fora.

  You ask whether it would be possible to establish a mechanism for Community funding which took account of spending by Member States in areas such as military and humanitarian aid. I do not see any straightforward way that this could be achieved under the structures of the Amsterdam Treaty. The contribution each Member States makes to individual Community funding programmes cannot be adjusted to take account of such factors. As for the financing arrangements for action within the framework of the EU's common foreign and security policy, I do not see that there would be any significant read across to the burden sharing proposals. These arrangements are not intended to subsidise large scale involvement by Member States on the ground in a crisis region.


  As I outlined in my letter of 16 December, we believe flexibility is very important in terms of the nature of a temporary protection regime as well as in respect of burden sharing. What might constitute an appropriate response by an individual Member State to a mass influx of persons is a matter where particular national circumstances could have a significant bearing. Much may depend on the scale or the rate of the influx into a particular Member State and on that State's links with the crisis region.

  It is likely that it would be very difficult in practice to enforce any decision which sought to limit the numbers of persons for whom a particular Member State would be responsible. Substantial numbers of persons would be likely to have entered the territory by the time any decision was made to establish a temporary protection regime and the influx would be likely to continue over an extended period. Many persons would probably make their own travel arrangements ahead of or bypassing any centrally organised distribution scheme. Some would have reasons for making their way to particular Member States and some would be likely to move on to what they felt might be better circumstances in another Member State. Also we could find, as we have with the Kosovan situation, that people not in need of protection impersonate those belonging to the target group. Once persons in such a situation arrived on a Member State's territory it could be very difficult to remove them, even if there was another Member State willing to take them.

  Such factors argue for a degree of national discretion in deciding how beneficiaries of such a regime are to be treated. For instance, one Member State might be so overwhelmed by numbers that it would not make sense for it to continue providing the social benefits normally associated with the regime to new arrivals.

  In addition, once a temporary protection regime had been established, circumstances might arise where there was a divergence of view among Member States as to whether the regime was still necessary—perhaps there had been an improvement but not a resolution of the crisis in the region of origin. Unless there was flexibility to withdraw from the scheme, some Member States could find that they were forced to grant protection which they considered to be unnecessary. Such an approach would, I believe, go beyond the framework of co-operation provided for by the Amsterdam Treaty. A key feature of any successful arrangement must be, I think, that it is voluntary. Immigration and asylum matters are not ones over which some Member States are ready to relinquish national control in this way.


  The concerns about "secondary migration" I expressed in my letter of 16 December were in relation to illegal migration. Whatever Community law provides in respect of the free movement of third country nationals, it cannot prevent them moving between Member States altogether. A very large proportion of persons who claim asylum in the UK have travelled across the EU illegally and many of these we know have had their asylum claims rejected in other Member States.


  As I have explained, I think it important that any EU temporary protection regime operates with the consent of all Member States. If a regime has run its course and there is not the consensus to extend it, this does not mean that each Member State will cease to provide protection to those in need of it. A failure to act on the part of the Council does not alter individual Member States responsibilities. Member States will continue to be bound by their obligations under the 1951 Convention and the European Convention on Human Rights, in particular, not to remove persons who would face serious harm.


  I am grateful for you commenting on the reference to our consultation arrangements in last years' Explanatory Note on these proposals. This statement does not reflect our policy and should not have been included in the Note. I am sorry for this error. Consultation arrangements on Third Pillar asylum and immigration proposals are decided on a case by case basis. In addition to the comments you have forwarded from JUSTICE, my officials have discussed these particular proposals informally with representatives of UNHCR, Refugee Council and ILPA. We value the views of these organisations on these matters.

25 February 1999

Letter to Lord Tordoff, Chairman of the Committee, to Kate Hoey MP, Parliamentary Under-Secretary of State, Home Office

  Thank you for your letter of 25 February enclosing a revised Presidency proposal for a joint action on temporary protection and a discussion paper on solidarity in burden sharing. The Committee has also considered your Supplementary Explanatory Memorandum. It has decided to hold both proposals under scrutiny.

  The Committee has noted your comment that there is no real consensus on the proposals and that there is likely to be a number of further revisions over the coming months. The question of the UK's opt-in will also arise once the Amsterdam Treaty enters into force. The Committee questions whether the degree of flexibility you are seeking is consistent with the post-Amsterdam arrangements. You emphasise the need for a "voluntary" arrangement, as "immigration and asylum matters are not ones over which some Member States are ready to relinquish national control in this way". This may be the case for the UK and Ireland, with their flexible opt-in rights, and for Denmark with its opt-out. But the remaining 12 Members are required, under Article 63(2) of the amended EC Treaty, to set minimum standards for temporary protection and to adopt measures promoting a balance of efforts between Member States "in receiving and bearing the consequences of receiving". It seems to the Committee that the question of whether the UK will wish to exercise its opt-in to Title IV measures lies at the heart of many of the points you have raised.

  Finally, the Committee welcomes your comments on consultation. We hope that consultation with interested organisations will become a regular feature of the Government's approach to Third and, in future, First Pillar proposals on asylum and immigration.

23 March 1999

3   Printed in correspondence with Ministers, 11th Report, Session 1997-9. Back

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