STATUS OF REFUGEES
Draft Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection.
|Legal base:||Articles 63(1)(c), 63(2)(a) and 63(3)(a) EC; consultation; unanimity
|Deposited in Parliament:||19 November 2001
|Basis of consideration:||Minister's letter of 11 February 2002
|Previous Committee Report:||HC 152-xiv (2001-02), paragraph 1(23 January 2002)
|To be discussed in Council:||No date set
|Committee's assessment:||Legally and politically important
|Committee's decision:||Not cleared; further information requested
7.1 The Conclusions of the European Council held at Tampere
in October 1999 included reference to a Common European Asylum
System. Such a system would include the approximation of rules
on the content of refugee status and its recognition and would
be complemented by measures on subsidiary forms of protection.
The present proposal, which we first considered on 23 January
2002, sets out rules for determining which applicants for international
protection qualify for refugee status under the 1951 Geneva Convention
and which applicants qualify for subsidiary protection status.
The proposal forms part of a process which is intended to lead
to the adoption, in the longer term, of a common asylum procedure
and a uniform status for those granted asylum which would be recognised
throughout the European Union.
7.2 Although all Member States are party to the 1951
Geneva Convention and the 1967 New York Protocol, there have been
divergent interpretations of the Convention and Protocol, notably
in relation to granting refugee status where the fear of persecution
is in relation to the acts of persons other than the State where
the State of origin is unable or unwilling to provide effective
protection. As we
noted on 23 January, the scope of the draft Directive is limited
to specifying rules for determining which applicants qualify for
refugee status under the Geneva Convention and which qualify for
subsidiary protection. It does not apply to the situation of third
country nationals or stateless persons who are allowed by a Member
State to remain on its territory for compassionate or humanitarian
reasons not related to any need for international protection.
The draft Directive contains provisions on the minimum rights
and benefits to be enjoyed by the beneficiaries of refugee and
subsidiary protection status, but it does not deal with the procedure
whereby refugee or subsidiary protection status is granted or
7.3 When we considered the proposal on 23 January, we
agreed with the Minister in welcoming the setting of minimum standards
by which the qualification for refugee and subsidiary protection
status was to be determined by the Member States. We nevertheless
put a number of questions to the Minister, to which she has replied
in her letter of 11 February.
The Minister's letter
7.4 In her letter of 11 February the Parliamentary Under-Secretary
of State at the Home Office (Angela Eagle) confirms that the UK
opted in to negotiation of this measure on 28 January. In response
to our question on the extent of any consultation with the United
Nations High Commissioner for Refugees and with relevant non-governmental
bodies, the Minister comments as follows:
"I agree [that] it is important that the United Nations High
Commissioner for Refugees (UNHCR) and relevant non-governmental
bodies have the opportunity to share their views on the implications
of the whole package of asylum measures under consideration by
the Council of the European Union. My officials have regular meetings
to discuss European developments in the immigration and asylum
field with a selection of non-governmental bodies. The last such
meeting was on 24 January 2002. The prevailing view amongst non-governmental
bodies seems to be that the package of proposals offers an adequate
starting point for a common European asylum system. However, there
is concern at the slow rate of progress in negotiations and a
fear that the proposals will be diluted in order to reach agreement.
The Government is doing all it can to facilitate the swift adoption
of the proposed asylum measures and remains committed to securing
a package of minimum standards that are also meaningful ones.
"I understand that the Commission consulted the UNHCR and
various non-governmental bodies during the drafting of its asylum
proposals and that the UNHCR's views were held to be particularly
important with regard to the refugee qualification Directive.
In November last year the UNHCR submitted to the Council of the
European Union its observations on the Commission's proposal for
a Directive on qualification as a refugee (CN 14109/01, Asile
54). In it, the UNHCR gave a general welcome to the proposal,
judging it to be an adequate basis for discussion of the relevant
issues and an important step in the process of building a common
European asylum system. I consider the criticisms raised by the
UNHCR in their observations to be relatively minor ones but nonetheless
expect them to help inform debate during negotiations at the asylum
7.5 We noted that the chosen legal basis for the Commission
proposal is Articles 63(1)(c), 63(2)(a) and 63(3)(a) EC.
In her Explanatory Memorandum of 4 December 2001, the Minister
had herself drawn attention to the 'arguable lack of an explicit
legal basis' for the inclusion in the proposal of rules setting
out the content of the rights attaching to refugee and subsidiary
protection status (as opposed to rules on the qualification of
persons as refugees). We therefore invited the Minister to explain
this point more fully.
7.6 The Minister comments as follows:
"The Explanatory Memorandum simply intended to draw attention
to the potential ambiguity of Article 63(1)(c) TEC. This states
that Member States should adopt 'minimum standards with respect
to the qualification of third country nationals as refugees'.
The text of this paragraph, particularly in other language versions
such as French, can
be read as limiting the scope of the obligation to laying down
the preconditions for qualifying as a refugee rather than extending
to the rights and benefits attached to any status granted.
"However, it is arguable that Article 63(1)(c) is referring
to the conditions that need to be established before a status
is granted and it is inherent in any status that it must imply
rights and obligations to avoid being simply an empty shell. It
is also clear from Tampere conclusion 14, which refers to the
'recognition and content' of refugee status and from other asylum
related Commission proposals such as the Reception Conditions
Directive, that there is a political acceptance of the need to
define the rights and benefits associated with refugee status.
There are also grounds for using Article 63(3) as justification
for including the content of refugee status because this paragraph
provides for laying down rules on conditions of entry and residence,
which logically includes those persons recognised as refugees.
"I am satisfied that the Commission was entirely justified
in taking the view that it has and fully support the inclusion
of the content of refugee status in this instrument. I believe
the line being taken is the correct one and do not expect there
to be an affect on competence. There are no grounds for believing
that the Commission's interpretation will be challenged but it
is important that we are all aware of the potential weaknesses
in the wording of Article 63 TEC."
7.7 We were concerned about the provisions of Article
10, which permits Member States to examine whether the well-founded
fear of persecution or of suffering serious and unjustified harm
is confined to only a part of a third country, so that a Member
State could find it reasonable to return the person to another
part of that country. In particular, we were concerned that Article
10(1) only provided that there should be a 'strong presumption'
against making such a finding where the agent of persecution is,
or is associated with, the national government. It seemed to us
that this provision gave inadequate protection to the refugee
and that there was no proper case for returning a person to a
territory where the national government was responsible for his
persecution. We were also concerned that the vagueness of these
provisions would introduce new areas of divergence between the
practices of Member States.
7.8 The Minister seeks to deal with our concerns about
the 'strong presumption' in Article 10(1) as follows:
"In Article 10(1) the 'strong presumption' is based on the
grounds that a national government is able [to] and willing to
act throughout its territory. However, there may be cases where
a significant part of a country, for example Northern Iraq, is
not under the control of the national government. In such cases
an individual with a well founded fear of the government could
potentially be returned in relative safety to live under the protection
of a stable state-like authority or international organisation
of a type described in Article 9(3). I am satisfied that Article
10(2) and 9(3) lay down adequate minimum safeguards for the protection
of individuals who would otherwise stand to be returned under
7.9 On the question of the vagueness of Article 10, the
Minister comments as follows:
"Significant divergence in Member States' practice already
exists. I believe that setting out common rules, even broadly
defined as they are in Article 10, can only reduce this divergence.
It is also important, I think, to note that as a Directive, this
proposed piece of Community legislation is intended only to approximate
rules and practice among Member States by laying down minimum
standards, not create a single uniform system. A degree of flexibility
is both necessary and desirable. It is the only way of securing
agreement among Member States in this first stage of creating
a common European asylum system and it allows Member States to
exercise their own discretion when examining certain types of
difficult cases that may be peculiar to them."
7.10 We are grateful to the Minister for her full
reply to the questions we raised. We note the consultation which
has taken place with the United Nations High Commissioner for
Refugees (UNHCR) and we infer from the Minister's reply that this
7.11 We note the Minister's further explanation of
the arguments relating to the legal base under Article 63(1)(c)
EC for measures concerning the rights attaching to refugee status,
as opposed to those concerning the conditions for qualifying as
a refugee. We think the case for relying on Article 63(1)(c) EC
is arguable at best, but we acknowledge the force of the
Minister's argument for relying on Article 63(3).
7.12 We remain concerned about the provisions of Article
10(1). The Minister is, of course, right to point out that the
present proposal is intended only to approximate rules and practice
between the Member States, and not to create a single uniform
system. Nevertheless, we recall that it was the Minister herself
who stated that "a close degree of harmonisation" was
generally desirable in the asylum field in order to "reduce
disparities between Member States and so reduce secondary migration".
7.13 In this regard, we think that there should be
more than the "strong presumption" in Article 10(1)
against the return of a person to another part of a country where
the Government of that country is, or is associated with, the
agent of persecution. We ask the Minister to explain how the provisions
of Articles 9(3) and 10(2) lay down adequate minimum safeguards
in such cases.
7.14 We repeat our concern that the "strong presumption"
in Article 10(1) provides insufficient protection to the refugee,
and we ask the Minister if she agrees that there should be a rule
prohibiting return in such cases unless the relevant part of the
third country is under the control of a stable entity other than
the Government which is, or is associated with, the agent of persecution.
7.15 We shall hold the document under scrutiny pending
the Minister's reply.
protection' is not a term used in the 1951 Geneva Convention.
It is defined in Article 2(f) of the draft Directive as 'a form
of international protection status, separate but complementary
to refugee status, granted by a Member State to a third country
national or stateless person who is not a refugee but is otherwise
in need of international protection and is admitted as such to
the territory of this Member State'. Back
i.e. the Geneva Convention relating to the Status of Refugees
of 28 July 1951, as supplemented by the New York Protocol of 1967. Back
and Germany, for example, maintain that victims of persecution
from non-State agents should not qualify for refugee status. The
UK maintains that such victims do so qualify. Cf. R v. Secretary
of State for the Home Department ex parte Adan and Aitseguer
(House of Lords) 19.12.2000). Back
63(1) provides for the adoption by the Council of measures on
asylum relating to the status of refugees within a number of specified
areas, one of which is 63(1)(c)- 'minimum standards with respect
to the qualification of nationals of third countries as refugees'.
Article 63(2)(a) provides for the adoption of measures on refugees
and displaced persons in the areas of 'minimum standards for giving
temporary protection to displaced persons from third countries
who cannot return to their country of origin and for persons who
otherwise need international protection'. Article 63(3)(a) provides
for the adoption of measures on conditions of entry and residence,
and standards on procedures for the issue of long term visas and
residence permits. Back
refers to 'normes minimales concernant les conditions que doivent
remplir les ressortissants des pay tiers pour pouvoir prétendre
au statut de réfugié'. It does indeed suggest that
Article 63(1)(c) is concerned with the conditions for achieving
refugee status, and not with the rights attaching to that status
once it is achieved. Back
13620/01; HC 152-xiv (2001-02), paragraph 1.22 (23 January 2002). Back