Examination of Witnesses (Questions 20-39)|
CBE, MR IAIN
WEDNESDAY 14 MAY 2003
Lord Lester of Herne Hill
20. As the sponsor of the Civil Partnerships
Bill in this House, of course I am very pleased to see that the
definition gives protection to gay and lesbian couples in stable
relationships, if the national law allows it. However, what I
simply cannot understand at all is why the negotiators have moved
from the position last year where the elderly dependant grandmother
was protected and had not even written in a provision like the
one for gay and lesbian couples. There is not even that protection
and I simply do not understand what has induced other Member Statesbecause
I am sure it cannot be our ownto adopt such a narrowly
restrictive approach, unless it is the mindless bureaucratic rubber-stamping
of Dublin, which cannot be in itself sufficient explanation since
the measure presumably was not meant simply to be Dublin writ
large, as it were. Can I have an explanation as to what is behind
(Mr Douglas) Most Member States that
perhaps would have liked a slightly more favourable provision
for Article 2J are able to give a more favourable interpretation
by virtue of Article 4, which says that Member States may introduce
or retain more favourable standards for determining who qualifies
as a refugee, and in determining the content of international
protection in so far as those standards are compatible with the
Directive. There is nothing to stop a Member State from accepting
the grandmother or great-grandmother as a member of the family
if they wanted to do so.
21. The draft clauses of the new constitution,
or some of those we have seen in this Committee of the Giscard
D'Estaing proposals for the new constitution, refer to the values
of the Member States of the European Union. Surely, the terms
of a Directive such as this ought to reflect those values? I find
it very difficult to believe that the responsibility for aged
parents, who have become dependent, does not form part of the
values of the European Union that ought to be reflected in the
minimum standards that find their way into this Directive. If
that is right, should the UK Government not be pressing that point?
(Lord Filkin) Our job is to press to
try to get what we think are the best set of standards that can
be agreed. What I mean by that is that we press on many issues
on these negotiations, but if it is a choice between pressing
for an issue and getting a total failure to agree, our position
is that we would be worse off in that situation than getting an
agreement that does at least not require us, or others who have
got higher standards, to lower them; but it does require those
who have got extremely poor standards indeed to raise them. That
is the nature of these negotiations that one is making some progress
but not as much as everyone would ideally wish.
22. So far as getting agreement is concerned,
is agreement from the entrant countries being obtained?
(Lord Filkin) No. In essence, the accession states
are not negotiators to this agreement. They now sit infor
the first time on the last occasionthe Justice and Home
Affairs meeting; but they are not decision-makers. If and whenand
we hope it will be sooner rather than laterthere is agreement
to this measure, then the accession states are obliged to implement
it in full. That is, of course, a further benefit, in the sense
that it ensures that some of those who would have very weak systems
or protection measures are therefore obliged to meet them.
Lord Plant of Highfield
23. Given that going beyond the minimum standard
within a particular state is a matter for discretion, could you
either explain or speculate about how that would be dealt with
within a jurisdiction like the United Kingdom? It looks as though
it is going to be a highly discretionary kind of judgment that
is made by whoever is making the judgment. How far will reasons
be given for refusing the admission of a grandmother in one case
and allowing the admission of a grandmother in another case, if
this discretion is exercised against the background of assumed
cultural differences such that this family coming from place X
expects to support the grandparents, whereas with another family
coming from place Y that would not be the expectation? If things
are as discretionary and individualised as that, is this not going
to be a Mare's Nest for appeals and reviews and so forth by authorities?
I cannot quite see how the system can be as discretionary as that
without getting into a bigger mess.
(Lord Filkin) It is not discretionary
in very many respects. In the Framework Agreement, if it is agreed
between the 15 Member States, there is an obligation on all 15
Member States to adjust their national law, to ensure that their
national law is compliant. Therefore, there is no discretion not
to meet that minimum standard. The only discretion comes about
whether the State chooses in its own legislation or procedures
to go further; and then every State has to look at every individual
application on their merits and make judgments on their merits
against the regulations, laws and rules that they have in place,
including the Framework Agreement to do so. I do not wish to over-labour
the point about the North and the South to extremes, and there
are very, very many different reasons for why people would choose
to lodge an asylum claim in different countries; but if you look
at the level of asylum claims that are currently registered in
the southern European States and compare them with the northern
European States, there are absolutely massive differences. Some
of those reasons may be differences in opportunities for employment
in those areas; but some of it will certainly be because the levels
of protection and support have been historically so much lower
in southern European States and the process that underpin that,
than has been the case with the northern States. I do not think
we expect this measure by itself, or even the raft of four or
five measures that make up the temporary asylum process, by themselves
transform the world. They do start to raise some of the minimum
standards for some States that are at very low standards indeed,
in terms of their processes and the protections and support that
they give to people who qualify.
Lord Neill of Bladen
24. You earlier gave an answer about what, in
effect, it is like to negotiate. I must say that I was a little
bit depressed by what you said because we are really dealing with
this definition which raises ethical questions of who should be
entitled to the protection and benefit of this. The question is
how you define this and what you try to negotiate for. If it is
a matter of justice or basic ethical positions, should not our
Government try to argue for what is right? You may get driven
off that and you may find that the other States will not accept
your position, but should that not be the beginning, rather than
to start with a compromise, which I read into your rather pessimistic
approach that you would not persuade other States to accept the
definition that some sitting around this table would like to see?
(Lord Filkin) I probably gave a wrong
gloss on that. I was describing the later stages of a negotiation,
the choice faced by all Member Statesand that is why the
pressure comes on all Member Statesas to whether it is
worth compromising to get something out of the negotiation rather
than having the whole negotiation collapse. This has been in negotiation
for how long, would you say?
(Mr Douglas) For approximately nine or ten months.
We started at the beginning of the Danish presidency.
(Lord Filkin) It must be longer than that because
we gave evidence on this a year ago; it must be substantially
longer than that.
(Mr Douglas) The discussions in the working group
began under the Danish presidency.
(Lord Filkin) All I was signalling is that there comes
a point at which you have to start making those compromises. Currently,
there is massive pressure on the Germans by the other 14 Member
States who are close to wanting to make it, but we are hopeful
that that will not lead to a collapse of the negotiation but a
movement from the German because of the pressure that an isolated
State feels in that negotiation when they are the only one effectively
blocking an agreement.
Lord Lester of Herne Hill
25. In answer to Lord Plant's question, I was
not clear about the precise position that will obtain in the UK.
Am I right in thinking that so far as immigration rules are concerned,
it is clear that family membership includes elderly dependent
relatives? Will there not be a similar definition for the purpose
of refugee status in UK law that will cover the elderly dependant
grandfather or grandmother so that the kind of problems raised
by Lord Plant will have been regulated in the rules that the adjudicator
has to apply?
(Mr Walsh) We have a mix of things, depending
on different circumstances. As you say, there are things in the
immigration rules which might deal with elderly dependants. If
you look at the position on asylum-seekers or refugees, there
are things in our published policy instructions that are not immigration
rules but instructions we are obliged to follow, which talk in
very general terms about people who, although they may not be
spouses or children under 18, are nevertheless considered to be
dependent upon the asylum-seeker or the refugee. In a way, this
emphasises some of the difficulties about getting agreement on
a Directive because even in the UK law, although we do apply more
generous terms than are set out in this Directive, it is not as
if we have a clearly set-out categorised and highly-defined set
of groups of dependants who would qualify; it is a case of taking
account in individual cases of various different circumstancescaseworkers
guided by policies to try and take decisions. Those decisions,
if they are not in immigration rules, would be susceptible to
judicial review. If they are in the immigration rules they can
form part of appeals. It is a difficult area because there are
lots of individual circumstances to take into account, and trying
to fit all of that into a neat definition in a Directive is a
challenge in itself, quite apart from the differences of view
expressed around that table.
26. Lord Filkin, can you help me with a mystery?
The document that has been deposited with us has, under Article
6, which appears to have been removed, in brackets "(see
new Article 21A)". The document does not contain an Article
21A. Are you able to throw light on this puzzle?
(Lord Filkin) I shall certainly seek
help from my officials.
(Mr Douglas) I am not sure we have a copy of that,
but we can certainly write to you.
27. Is it something we do not have but which
we ought to have?
(Mr Douglas) I do not think so; I think it would have
been something that was moved from one part of the Directive to
28. It certainly has not been put into Article
21A, because there is not one.
(Lord Filkin) We will write to you.
29. Article 7 sets out various procedures to
be followed in dealing with an application for refugee status
or subsidiary protection status, as the case may be; but it starts
by saying: "Member States may consider it the duty of the
applicant to submit 1/4" That sounds as though these procedures
are to be optional. Is that right or wrong?
(Lord Filkin) They are of the nature of recommendations
to Member States about the factors that they should consider when
they are making judgments on asylum applications. They are advisory
in that respect.
30. How do these mesh with the provisions of
the Draft Procedures Directive, which is the final part that has
not yet been agreed, as I understand it?
(Lord Filkin) You are quite right. It is envisaged
that the Procedures Directive will refer directly to Article 7
in the Articles that relate to the personal interview and the
obligations of the determining authority of the applicant; so
there will be cross-reference.
31. Somewhere, will minimum standards for procedures
be expressed, rather than leaving it simply in the optional sense
that is conveyed by the use of the word "may"?
(Lord Filkin) Article 7, in a sense, covers the assessment
of the facts of the circumstances of a claim for international
protection. As I indicated, they are recommendations to Member
States of what are the key elements of a State's determination.
They cover the facts that should be looked at, and how to assess
the relationship between the person's circumstances and the persecution
or exposure to serious harm. Some Member States thought that this
might be better placed in the Procedures Directive as it does
detail a list of procedures to be followed. In its explanatory
memorandum, the Commission said that the applications should be
examined on a case-by-case basis, which must be right, in relationship
to the objective conditions known to exist in the country of origin
or habitual residence at the time of making the application or
a plea for refuge. Therefore, we thought it made sense to offer
guidance in this Directive on the assessment and the information
required, which would help Member States assess the relationship
between the applicant and the circumstances of the country of
32. For example, is paragraph 3 of this Article
also optional, or is that going to constitute a minimum standard?
It reads, "The assessment is to be carried out 1/4. These
are things that must be taken into account."
(Mr Douglas) That is right. If a Member State is going
to consider it the duty of the applicant to submit as soon as
possible all the elements needed to substantiate the claim, then
the elements must follow the sequence that is set out in Article
33. Once an application has been made, it has
to be assessed; and the assessment requires to be taken into account,
as I read (3), the various matters referred to in the five sub-paragraphs.
(Mr Walsh) That is right because (3) is somewhat different
from (1) and (2) in that it is mandatory to all. Where (1) and
(2) come in is in sub-paragraph (v).
34. I am grateful; so (1) and (2) are optional
and (3) is mandatory.
(Lord Filkin) We believe that that is the case. I
am going to put this into writing to you to make sure it is beyond
35. On the footing that (1) and (2) are optional,
I imagine that the United Kingdom will adopt the approach contained
(Lord Filkin) Yes.
36. Are other Member States likely to do so?
What is the position about that, or do you not know?
(Mr Douglas) We expect so because these are the key
principles of assessing a claim, and these are the key principles
of a State's determination, referred to, for example, in the UNHCR
handbook on criteria for determining claims. We expect that most
Member States, if they are going to determine a claim, would go
about it in this way.
Baroness Thomas of Walliswood
37. Is this at all linked to the question of
having to be dealt with in the country of first entry?
(Lord Filkin) I do not think so.
38. I was thinking of people who had not had
to submit a claim in country A because country A would do it much
more slowly and would not require them to do it as soon as possible,
because that is what (1) is about, is it not? It has to be done
as soon as possible.
(Lord Filkin) You are correct, but it is not related
to whether they should have claimed in Greece rather than in Britain.
Of course, Dublin 2 bites on that. It would be up to us if we
believed there was documentation.
Baroness Thomas of Walliswood: I just wondered
whether that was going to raise its ugly head again.
Lord Lester of Herne Hill
39. I apologise for asking a technical question,
but I do not understand the phrase in Article 7(5)(c) "specific
and general information relevant to his/her case". As I understand
it, this is a very complicated paragraph. I think it is saying
that you do not need confirmation if you are applying Article
7(1) and the following conditions are met; you do not need to
check. One of them, at (c), is, "if the applicant's statements
are found to be coherent and plausible and do not run counter
to available specific and general information relevant to his
or her case". I understand "specific information"
or "information", but what I do not understand is why
it says "specific and general". I am thinking simply
of fairness here. It has got to be relevant to his or her case,
but what is this talking about when it talks of "general"
information as distinct from "specific" information?
(Mr Douglas) It is the way these things
are drafted. They often come out in rather peculiar ways. When
we talk about specific information, we mean specific information
relating to that person's claim, which the determining authority
may or may not know bout, for example if they belong to a certain
political party and they organised a demonstration on a certain
date, that may be documented. The general information would be
that police descended on that demonstration on that day, and that
generally members of that political party are persecuted in that
country. You are quite right to say that really it is to do with