INTERNAL SECURITY AND INTERNATIONAL PROTECTION
Commission working document the relationship between safeguarding
internal security and complying with international protection obligations and
|Document originated:||5 December 2001
|Forwarded to the Council:
||7 December 2001|
|Deposited in Parliament:
||17 January 2002|
|Basis of consideration:
||EM of 30 January 2002|
|Previous Committee Report:
|To be discussed in Council:
|Committee's assessment:||Politically important
|Committee's decision:||Not cleared; further information requested
10.1 This working document is the Commission's direct
response to the request
by the Extraordinary Justice and Home Affairs Council Meeting
of 20 September 2001 that the Commission should examine urgently
the relationship between safeguarding internal security and complying
with international protection obligations and instruments.
10.2 The Parliamentary Under-Secretary of State at the
Home Office (Angela Eagle) helpfully summarises the document,
"The working document analyses existing legal mechanisms
for excluding persons from international protection, the legal
remedies open to Member States, the possibilities of action at
a European level and the adequacy of internal security related
provisions in existing and proposed EC legislation. The overriding
premise is that it is necessary to find an appropriate balance
between national security and the principle of refugee protection.
"This chapter summarises existing mechanisms for excluding
undeserving applicants from refugee status. It notes that terrorists
can be excluded from the refugee status under article 1(F)
of the Geneva Convention and draws attention to ongoing European
level efforts in this area, such as the Proposal for a Council
Framework Decision on Combating Terrorism.
It also highlights the exception to the principle of non-refoulement
provided by article 33(2)
of the Geneva Convention and recommends that Member States make
full use of both it and article 1(F).
"In terms of the asylum procedure, the document argues that
in order to be excluded applications for asylum should first enter
the asylum procedure, even if they are to be subsequently fast-tracked
or 'frozen'. Any such 'freezing' would require amendments to the
Proposal for a Council Directive on minimum standards on procedures
in Member States for granting and withdrawing refugee status.
"This chapter examines the legal options for dealing
with those persons who have been excluded from a form of international
protection. It looks at the options for criminal prosecution and
the barriers to their removal or deportation. It highlights in
particular the problem caused by the interpretation by the European
Court of Human Rights of article 3 of the European Convention
on Human Rights (ECHR).
"It also raises the question of the legal status of persons
excluded a protection status but who remain on the territory of
a Member State and notes the existing discrepancies in Member
State practice. The decision by the UK to temporarily suspend
its obligations under article 5 ECHR
in order to detain persons who are judged to be a security risk
but who are not currently removable is also noted.
"This chapter summarises the two-stage approach being
adopted by Member States to create a Common European Asylum System.
It draws attention to the relevant Commission Communications and
the recent recommendation for the use of an open co-ordination
method in the asylum field.
"This chapter summarises existing and proposed EC legislation
in the immigration and asylum fields and their relation to security.
It concludes that they are largely compatible with the aim of
denying the rights and benefits included in them to persons who
are deemed to be a risk to national security. However, the Commission
also suggests that the various measures be re-examined in the
light of recent events and also proposes minor additions to several
of the proposed immigration and asylum Directives."
The Government's view
10.3 The Minister begins with a general comment about
the document, saying
"The Commission working document sets out to review relevant
current and proposed legislation and practice in order to highlight
key areas of concern. It is a swift reaction to conclusion 29
that identifies many questions and offers some constructive suggestions
but is limited in its attempts to reach any comprehensive conclusions.
The Government considers it should be viewed as a valuable summary
of the area in question and as a helpful impetus to debate in
what will be an ongoing process, rather than a solution to the
problem in itself."
10.4 She continues:
"The Government welcomes the Commission's response to
conclusion 29 of the Extraordinary Justice and Home Affairs Council
Meeting of 20th September 2001 and is largely supportive
of the suggestions that it makes. As the issues raised appear
in a Commission working document they have no direct implications
for policy because they require no changes to existing or proposed
UK legislation or practice. However, there are some potential
indirect policy implications which merit comment.
"The Government supports the proposal for European guidelines
on the use of exclusion clauses and the idea of information exchange
mechanisms to help ensure all Member States are making full and
similar use of them. The suggestion for a common list of 'Refugee
Convention excluded persons' is also considered to be worth exploring
"The Government agrees that the lack of European harmonisation
in terms of the status of those persons who are excluded from
a protection status but who cannot be removed is a cause for concern.
It recognises that differences in Member State practice in this
area is a potential cause for unwarranted secondary movement between
Member States and would support greater European co-operation
in this area in the interests of promoting a more level playing
"The Commission working document suggests that amendments
could be made to the proposed Directives on asylum procedures,
qualification as a refugee and reception conditions in order to
strengthen further their capacity to exclude from their scope
persons who present a security risk or who do not deserve protection.
The Government will wish to examine very carefully the exact text
put to the Asylum Working Groups but in principle is supportive
of such an initiative."
10.5 The Minister then identifies some key areas of concern.
She tells us:
"The Government is supportive of the recommendation that
criminal proceedings, internally or in terms of an extradition
process, should take precedence over the conducting of an asylum
procedure. However, the document argues for the initial inclusion
in the asylum procedure of potentially excludable cases in the
interests both of complying with the Geneva Convention and from
a practical security perspective. Our recent emergency Anti-terrorism,
Crime and Security Act allows for asylum applications to be refused
solely on the grounds that they stand to be excluded from the
Geneva Convention under its articles 1(F) or 33(2). We will need
to make every effort to ensure that amendments to proposed European
asylum legislation are able to accommodate this position.
"The Government welcomes the inclusion of a discussion on
the difficulties posed to national security by the interpretation
of Article 3 ECHR. It recognises that returning anyone to face
death or torture is unacceptable but notes the Commission's apparent
hope that future judgements by the European Court of Human Rights
may allow for a greater balance between individual protection
needs and the security needs of a state. The government will continue
to play an active role in the EU to explore how this issue of
balance can be taken forward."
10.6 We recognise that this is simply a working document.
However, the Minister suggests that it will be used as "a
helpful impetus to debate". For this reason, and because
it raises some fundamental issues, we consider that it merits
a substantive report to the House.
10.7 The Minister describes the document as "a
valuable summary of the area in question". We agree that
it sets out the situation clearly, revealing the inevitable tension
between safeguarding internal security and honouring international
protection commitments. We are less happy with what appears to
be an underlying assumption that the balance between the two positions
needs redressing in favour of internal security. While we would
not go as far as Statewatch in stating that the paper "displays
flagrant disregard for basic human rights obligations",
we detect a wish to "find a way round" some of the Articles
of the European Convention on Human Rights (ECHR).
10.8 In particular, we have concerns about the Commission's
suggestion that there might be a "balancing act" between
individual protection needs and the security interests of a state
in relation to the prohibition in Article 3 ECHR against torture
or inhuman or degrading treatment or punishment. We recall that
Article 15 ECHR expressly provides that no derogation may be made
from Article 3 ECHR, even in time of war or other public emergency
threatening the life of the nation. Moreover, Article 3 is expressed
in absolute terms and does not allow for any exceptions or qualifications.
We therefore see no proper basis under the ECHR for such a "balancing
act" as suggested by the Commission. We ask the Minister
if she shares the view expressed by the Commission, and if so,
to explain her reasons for doing so.
10.9 We shall hold the document under scrutiny pending
the Minister's reply.
1(F) states that refugee status can not be granted to any person
with respect to whom "there are serious reasons for considering
(a) he has committed a crime against
peace, a war crime, or a crime against humanity, as defined in
the international instruments drawn up to make provision in respect
of such crimes;
(b) he has committed a serious non-political
crime outside the country of refuge prior to his admission to
that country as a refugee;
(c) he has been guilty of acts contrary
to the purposes and principles of the United Nations." Back
12647/01; see HC 152-x (2001-02), paragraph 4 ( 12 December 2001).
Article excludes from non-refoulement ( the prohibition
of expulsion or return to a country where the life or freedom
of the individual would be threatened) "a refugee whom there
are reasonable grounds for regarding as a danger to the security
of the country in which he is, or who, having been convicted by
a final judgement of a particularly serious crime, constitutes
a danger to the community of that country". Back
13620/01; see HC 152-xiv (2001-02), paragraph 1 (23 January 2002). Back
3 ECHR provides that no one shall be subjected to torture or to
inhuman or degrading treatment or punishment. It does not admit
of exceptions, and may not be derogated from. Article 3 ECHR
also applies to the extradition or expulsion of a person who would
face a real risk of exposure to inhuman or degrading treatment
in the receiving state cf Soering v UK, Chahal v UK. Back
UK is relying on Article 15 ECHR which permits a derogation from
Article 5 (and from all other Articles of the ECHR except Articles
2, 3, 4(1) and 7) 'in time of war or other public emergency threatening
the life of the nation'. See the Schedule to the Human Rights
Act 1988 (Designated Derogation) Order 2001, SI 2001/3644. Back
analysis: no 10: Critique of the European Commission's paper
on asylum, protection and internal security. Back