Examination of Witnesses (Questions 1-19)|
CBE, MR IAIN
WEDNESDAY 14 MAY 2003
1. Lord Filkin, thank you very much for coming
again to help us with our scrutiny. I think that Mr Douglas has
been before, but I am not sure whether Mr Walsh has.
(Mr Walsh) I was here once.
2. We are grateful to both of you for coming.
The subject we wanted to have your help on is the new proposal
for defining the minimum standards for the status and qualification
of refugees and applicants for subsidiary protection. This was
the subject of a report which the Select Committee produced in
July last year, since which time, as I understand it, the proposed
Directive has undergone considerable drafting changes. Lord Filkin,
what have been the main changes in the Directive since we last
saw it and reported on it?
(Lord Filkin) There have been, as you say, quite a
range of developments, so I hope you will bear with me if I run
through those. In the last part of last year, they focused on
the cessation and exclusion clauses in the Directive, and these
now oblige Member States to exclude from refugee or subsidiary
protection status an applicant who fulfils the criteria set out
in Articles 14 and 17. If a person's refugee status was up for
renewal, it would also be refused if the person had ceased to
be a refugee in accordance with Article 13. Next, Article 15,
which defines serious harm, has also been narrowed and brought
more into line with Articles 2 and 3 and Protocol 6 of ECHR. Member
States agreed that it would be preferable to include this as a
baseline for this definition, as there were widely diverging views
on what should comprise serious harm. Turning to this year's discussions,
they have focused on the rights and benefits attached to refugee
status and subsidiary protection. Member States have agreed that
it is reasonable that the difference between refugee status and
other forms of international protection is acknowledged in this
part of the Directive, and that it is reasonable for the Directive
to allow flexibility at the domestic level, for Member States
to make appropriate arrangements for subsidiary protection. Some
non-governmental organisations have queried the scope for differentiation
in rights and benefits between refugee status and subsidiary protection,
but most Member States, including ourselves, agree that there
should be some differentiation to acknowledge the primacy of refugee
status and the often more temporary nature of subsidiary protection.
Member States have widely divergent approaches in the European
Union to subsidiary protection, ranging from the guarantee of
the same treatment as refugees as in the Netherlands to only guaranteeing
protection at very basic levels of provision, as in Greece, for
example. Clearly, that range of differences has accounted for
some of the difficulty in seeking to reach a consensus. That is
why this Directive guarantees a minimum level of provision, and
we believed that that is welcomed. But these are minimum standards,
and this is the first step in this direction for some Member States.
Our general view is that it is beneficial to have established
minimum levels, as the documentation would state, if and when
it is agreed. We are aware that one cannot expect to go too fast
at this stage, and it is envisaged that a greater harmonisation
of approaches to subsidiary protection should take place perhaps
at a later stage in the building of a common system.
3. Picking up your last point, that a greater
degree of harmonisation may take place later, is that anything
more than an aspiration?
(Lord Filkin) In a sense, it is open to debate within
the European Union about the balance to be struck in the development
ofto use a shorthand termthe common European asylum
policy, as to what extent primacy should be given to further harmonisation
of rules and processes, and to what extent effort should be put
on action to address some of the problems at their source and
try to increase the ability of Member States to co-operate on
operational matters rather simply on procedural matters. That
is an active debate that is going on within the Justice and Home
Affairs Committee currently. One expects in practice that we will
be doing both in the future; it is the balance between them that
is the debate.
4. As you rightly said, the Directive is setting
minimum standards, and that is to be welcomed because that will
require some Member States to raise their standards to the minimum
required level. The other possibility is that this may lead to
a lowering of standards by those countriesand I am sure
we are among themthat offer rather better rights and guarantees
to refugees and those seeking subsidiary protection, than the
minimum standards require. When you spoke of harmonisation, I
was wondering whether there was any danger that there would be
a levelling down.
(Lord Filkin) We expected that the main thrust of
the regulation would be a movement upwards of those who currently
have extremely low levels of protection, particularly the subsidiary
protection. The debate about harmonisation of standards, of course,
is in part a debate as to what extent harmonisation of protection
is weighted towards ensuring that there are minimum decent standards
for applicants, and to what extent it is a prime measure to reduce
the totality of flows into the European Union, or to address secondary
5. I was going to ask what the state of play
is regarding this particular Directive. There has not yet been
any agreement in any respect concerning it, I think.
(Lord Filkin) You are absolutely right. I suppose
the short answer is that the main problem is really with Germany,
and we spent most of our time on this measure when we discussed
it at the Justice and Home Affairs Committee last week, and the
difficulties that Germany was having in coming into line with
6. Is that the non-state actor point?
(Lord Filkin) It essentially relates to their problem
with the overturn of their immigration legislation by their constitutional
court, and how they are trying to bring their legislation into
accord with their constitutional court position, and the politics
of that, and also the relationships on so doing with the
7. It is not the substance of the proposals
so much as the internal constitutional arrangements for getting
(Lord Filkin) I think there are issues of substance
as well, again in summary around subsidiary protection, particularly
around the issue of whether employment, for example, might be
one of the issuesemployment rights of people and subsidiary
8. But there has not yet been anything that
could be described as an agreement or a general approach or anything
(Lord Filkin) You are absolutely right in that respect.
There has not, and therefore the last Justice and Home Affairs
discussion on this was that we all felt it was bound to be stalled
because the work had not been resolved within Germany. Since then,
although we have not yet seen it, we gather that the Greek presidency
is about to bring forward for the attention of Member States revised
proposals by the Germansand it will then be deposited .
Whilst I have not received this, I gather there is some movement
in those, and therefore we are looking forward to seeing them.
9. I would like to ask you about the new, rather
stricter, definition of "family member" in Article 2J.
When we were looking at the then current version last year, the
expanded definition of "family member" was very greatly
welcomed by some of the NGOs whose representatives gave evidence
to us. They particularly liked what was then Article 2J(c) with
the additional chance of including as family members people who,
though not blood relatives in the narrow sense, lived with as
though part of the family. That has now gone. There has not been
any consultation or representations that you have received from
any of the NGOs about this change?
(Lord Filkin) Let me address the substance and then
ask Phil Douglas to deal with what we have heard domestically
from NGOs on it. What has happened in essence is that the proposed
definition of the Directive has now been made consistent with
that which was agreed and adopted in the Dublin 2 Regulations.
From our perspective, we think that is right for two reasons:
there is, in principle, an attractiveness in having consistent
definitions running through, with respect to agreements; and,
second, we do not wish from the UK perspectiveand others
share our viewto see a wider or inconsistent definition
in the text. That is because we believe there is a need for some
caution in that distant relationships can be more difficult to
establish. In the case of minors, there are certain risks as well,
as we know from the Victoria Climbié case. Therefore, the
Directive starts from a position of using the nuclear family as
the definition of "family". Again, of course, these
are minimum positions, and therefore it is open for the States
to go further, either in principle or on the merits of an individual
case, according to their own judgments.
10. The text of the previous version I have
in front of me had a paragraph which referred to "other close
relatives who lived together as part of the family unit at the
time of leaving the country of origin, and who were wholly or
mainly dependent on the applicant at that time." That has
come out. I think the UK Government agreed to that at the time.
Do they still think that that is a good idea?
(Lord Filkin) I think that our view is as I have just
described it; we think that using a consistent definition of a
Dublin 2, focused on the family definition, is a sound principle;
and I reiterate that that leaves it open to any Member State to
go further if they would wish to do so. (Mr Douglas) It
is open to Member States to go further if they consider a case
is worthy of that. On the consultation with the NGOs, we do consult
with representatives from NGOs four or five times a year on these
Directives, and we have detailed discussions. We have maintained
that position of consistency with the other regulations with the
NGOs. In some respects, we would have liked to have seen a slightly
wider definition; however, it is what can be agreed during the
negotiations which is important. We felt it was important to stick
with the consistency that we had achieved with Dublin 2 for the
practical reasons that Lord Filkin has just explained.
Lord Lester of Herne Hill
11. I would like to try and work out what this
means in practice. I take it that the definition of "family
members" is important for Article 21 on maintaining family
unity because that is where one has the idea of family members
brought in. Is that right? Then, if one looks at Article 21, it
is quite narrowly drawn, is it not? It says: "Member States
must ensure that family members of the beneficiary 1/4 who do
not individually qualify for such status, are entitled to claim
the benefits referred to in this chapter 1/4 (2) That protection
does not apply when the family member is, or would be excluded
from, refugee or subsidiary protection status pursuant to Chapters
3 and 4." We are dealing with quite a narrow scope of protection
in Article 21, are we not?
(Lord Filkin) Yes.
12. If we then go back to the definition of
"family member", by cutting it down in order to mimic
the Dublin Convention definition, does this not mean that somebody's
grandmother, an elderly dependent grandmother, who has been living
as a member of the family in the country of origin and who, going
back to Article 21, would otherwise be included in refugee or
subsidiary protection under Chapters 3 and 4she is no longer
to be within the protection of this instrument unless a Member
State chooses to be more generous.
(Lord Filkin) You are correct.
13. Does that not seemif I can put it
in a moderate waya remarkably mean and ungenerous approach
to the concept of family, when even somebody's dependent grandmother
who has been living with the family is now, under this change,
to fall outside the scope of protection?
(Lord Filkin) I think the problem is essentially (a)
of defining where one draws the line on thisand Member
States could reach a consensus around nuclear family, and therefore
have done so. Certainly, in many cases the United Kingdom would
go further than that in the circumstances you have instanced,
if we believed that that was genuinely the situation that pertained
in that family. In a sense, it is the nature of these agreements
that what can be reached, even though it may not go as far as
some would wish, is significantly better than making no progress
14. Has the British Government been trying to
adopt a more generous approach and failed to do so? Is that the
(Mr Douglas) I do not think it is quite as simple
as that. It is a process of negotiation. If we look at Article
2J(I) for example, we have the phrase "or her unmarried partner
in a stable relationship where the legislation or practice of
the Member State concerned treats unmarried couples in a way comparable
to married couples under its law relating to aliens". That
is an example of the kind of compromise which these texts often
produce. When Angela Eagle gave evidence here a year ago, she
made what she described later as a throw-away remark; but she
said it was the Liberal north versus the Catholic south on these
kinds of issues. I think there is some truth in that. We have
to arrive at a definition that is acceptable to all Member States,
and that often makes for difficult drafting like that. In that
instance, for example, the UK would have supported an unmarried
partner in a stable relationship full-stop, but other Member States
wanted to qualify that. We saw no reason
15. There is surely not a difference in approach
as between the liberal north and the catholic south if one is
considering the position of dependent mothers of the applicants.
(Mr Douglas) No, of course not in cases
Baroness Thomas of Walliswood
16. I would like to return to the dependent
grandmother. If a person seeking refugee status actually qualifies
for that refugee status, he or she will have suffered, or be likely
to suffer, persecution, hardship, damage or whatever it is, whether
by the state in which he or she is a citizen or by non-state powers,
that is, by revolutionary forces or whatever it is in that state.
My feeling would be that almost anybody who had lived with such
a person would be classed by the state as just as likely to have,
as it were, their nose chopped off as the person himselfyou
are guilty by association with your son or whatever it is, especially
if you have been living in the same household. I do not know whether
that is a relevant consideration, and whether we, in facing up
to a number of people coming in, would allow that consideration
to be a valid argument in favour of granting asylum or some kind
of protective status to an accompanying dependent adult.
(Lord Filkin) In a sense, although I
should be cautious about giving "in principle" answers
when dealing with varying circumstances. What I signalled previously
is that if, in the circumstances you described, our assessment
did lead us to the conclusion that the grandmother had been part
of that family in those circumstances, it could well be that we
would have granted protection, along with other family members.
In a sense, there is not a full answer to what you are arguing
other than the fact that this is a process of negotiation that
requires one to reach agreement; and in a sense it is a statement
about what it looks has been agreeable to all 15 Member States,
leading to an appreciable levelling of the minimum standards in
some areas. By definition it goes further than some are comfortable
with, and does not go as far as others would wish.
17. The concept of a nuclear family is a modern
Western concept. It is relatively recent, even in this country
in the state where we are nowtwo adults normally, or even
one adult living with their children: that is the nuclear family.
Even when I was young, that was not necessarily the typical family;
and in other countries it certainly is not the typical family.
That is why the use of the words "family members" could
be deceptive to the people who were applying.
(Lord Filkin) At one level you are right. In a sense
it touches on some of the difficulties that underpin the discussions
on this. In the circumstances you have described, whilst it is
a very plausible argument that you are making, that a grandmother
who had been living with the rest of the family in such a situationthat
would appear to be very valid. The same would not necessarily
go to every other family member.
18. I understand that.
(Lord Filkin) There is an enormous difficulty about
whether you draw a line at first, second or thirdnot to
be trivial. In a perfect world, of course, these would not be
issues, because everybody presented for asylum would be telling
the truth. I do not need to go into those issues and pressures.
19. Those who themselves are in danger of all
the things which prevent family members would come in as their
own applicants, as it were. So a brother or sister who was equally
in danger, and who had established that, would have their own
(Lord Filkin) Indeed so, yes.
(Mr Walsh) I was going to make that very point, that
under the UK provisions, and is covered by the procedures Directive,
if someone wishes to make a claim in their own right, they must
be entitled to do so; and a family member is just as entitled
as anyone else to apply. If they do qualify, then, yes, indeed,
they are subject to the main provisions.