Explanatory Memorandum to COM(2009)551 - Minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted - Main contents
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| dossier | COM(2009)551 - Minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of ... |
|---|---|
| source | COM(2009)551  |
| date | 21-10-2009 |
This proposal is a recasting of Council Directive 2004/83/EC of 29 April 2004, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted i (the 'Qualification Directive' or 'the Directive').
The Hague Programme invited the Commission to conclude the evaluation of the first-phase legal instruments and to submit the second-phase instruments to the Council and the European Parliament with a view to their adoption before the end of 2010. In the Policy Plan on Asylum i the Commission proposed the completion of the second phase of the Common European Asylum System (CEAS) through raising the standards of protection and ensuring their consistent application across the EU. The European Pact on Immigration and Asylum ("Pact"), adopted on 16 October 2008, provided further political endorsement and impetus to this objective, by calling for initiatives to complete the establishment of the CEAS with a view to offering a higher degree of protection.
At present, the Commission has at its disposal a large amount of information regarding the implementation of the Directive, including extensive information on the deficiencies concerning the terms of the Directive and the manner in which it is applied in practice.
- In June 2007 the Commission presented a Green Paper i which aimed at identifying possible options for shaping the second phase of the CEAS. In response to this public consultation, it received 89 contributions from a wide range of relevant stakeholders , including a significant number of Member States and NGOs i, putting across a broad range of ideas on possible amendments to the Directive.
- The Commission has collected information about the transposition and implementation of the Directive through its regular monitoring activities and has also taken into account several studies produced by UNHCR and different NGOs i which evaluate the implementation of the Directive as well as a report carried out, on behalf of the Commission, by the academic network Odysseus i.
- Further data was collected in response to detailed questionnaires addressed by the Commission to all Member States and to civil society.
- Moreover, an external study was conducted on behalf of the Commission, analysing the existing evidence and results of consultations and questionnaires, for the purposes of the preparation of the Impact assessment accompanying this proposal i.
- Additionally, the Commission organised several experts' meetings to discuss possible amendments to the Directive: a meeting with judges, academics, UNHCR and a selected number of experts from MS on 26.06.2008; two meetings with MS (one at experts' level on 19.11.2008 and another one in the context of the Committee on Immigration and Asylum on 12.12.2008) and two meetings with NGOs , on 8.1.2009 and 23.2.2009.
On this basis, the Commission identified as a main problem that the minimum standards adopted are vague and ambiguous. As a result
- they are insufficient to secure full compatibility with the evolving human rights and refugee law standards
- they have not achieved a sufficient level of harmonisation and
- they impact negatively on the quality and efficiency of decision-making.
The same conclusion was drawn with respect to the Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status ("Asylum Procedures Directive) i.
This proposal is adopted together with the recast of the Asylum Procedures Directive with the aim to ensure a higher degree of harmonisation and better substantive and procedural standards of protection, on the present legal basis, towards the establishment of a common asylum procedure and a uniform status, as called for by the Hague Programme. The amendments are expected:
a) to simplify decision-making procedures and lead to more robust determinations at first instance, thus preventing abuse ;
b) to streamline procedures for granting rights, thus improving the efficiency of the asylum process, and
c) to ensure coherence with the jurisprudences of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR).
More specifically:
a) As a result of the vagueness and ambiguity inherent in several of the Directive's provisions, decision-makers have difficulties to reach quickly robust decisions, whereas the possibility to interpret concepts in different ways results in intensive recourse to appeals and to subsequent applications, and in high rates of successful appeals against negative decisions. By reducing room for uncertainty and administrative error, by clarifying the legal concepts and thus simplifying their application, the proposal strengthens the capacities of the authorities to deal with cases of unfounded and abusive applications and more generally to process claims more rapidly while reaching solid decisions, which are not frequently overturned on appeal, so as to avoid prolonged litigations. This will also lead to quicker access to the rights set out in the Directive for persons genuinely in need of protection while at the same time supporting Member States' efforts to rapidly remove from the territory failed asylum seekers and improving the credibility of the whole process.
b) The proposal seeks to streamline procedures and reduce administrative costs and burdens associated with maintaining two protection statuses . As a result of the approximation of the rights granted to the two categories of beneficiaries of protection, the authorities will no longer need to apply distinct conditions and procedures for issuing residence permits and travel documents and for granting access to employment, social welfare, healthcare and benefits for family members and to integration programmes. Relevant administrative procedures will be streamlined and costs associated with creating and maintaining different infrastructures will be reduced.
c) Finally, to the extent that refugee and human rights obligations are the subject of a constantly evolving authoritative interpretation by competent national and international bodies and jurisdictions, the proposal seeks to ensure the full compatibility of the standards of the EU acquis with the standards developed since the adoption of the Directive by the case law of the ECJ and the ECtHR.
As concerns the financial and administrative burdens arising from the envisaged measures for those Member States which are faced with specific and disproportionate pressures on their asylum systems, due in particular to their geographical or demographic situation, the resources of the European Refugee Fund will be mobilised to provide adequate support to these Member States and to ensure that the burden will be shared more fairly between all Member States. In addition, the European Asylum Support Office will coordinate and support common action to assist Member States faced with particular pressures, and, more generally, help Member States identify the most cost-efficient ways to implement the envisaged measures through the pooling of good practice and the structured exchange of high-level expertise.
During the first phase of the CEAS, the goal set by the Tampere European Council was to harmonise Member States' legal frameworks on the basis of common minimum standards. The Qualification Directive was thus adopted with a view to define common criteria for the identification of persons in need of international protection and to ensure that at least a minimum level of benefits is available for these persons in all Member States.
This proposal aims to address the deficiencies identified during the first-phase of the asylum legislation and to ensure higher and more harmonised standards of protection, thus progressing towards a common asylum procedure and a uniform status, as set out in the Tampere conclusions and reiterated in the Hague programme. Detailed analysis of the problems identified in relation to this Directive and concerning the preparation carried out for its adoption, the identification and assessment of policy options and the identification and assessment of the preferred policy option are included in the Impact Assessment, annexed to this proposal.
This proposal is fully in line with the Tampere European Council Conclusions of 1999 and the Hague programme of 2004 in relation to the establishment of the CEAS.
Based on the suggestions put forward in response to the June 2007 Green Paper and on the abovementioned studies evaluating the implementation of the Directive, the Commission drew valuable information regarding the issues to be addressed in the amending proposal. As set out in detail above, the Commission also organised a series of consultations to informally discuss a broad outline of the proposed amendments with Member States, NGOs, UNHCR, refugee law judges and academics.
Parties consulted expressed support for further harmonisation regarding both the grounds and the content of protection. Member States were divided on the question of broadening the definition of family members and regarding an amendment of the definition of a 'particular social group'. There was general consensus amongst Member States on the need to approximate the rights attached to the refugee status and subsidiary protection, while maintaining two separate statuses. In contrast, UNHCR and civil society favor the establishment of a single uniform status. Stakeholders further stressed the need for clarification of Article 15(c).
The Commission is proposing a pragmatic approach, consisting in broadening the definition of family members to the extent necessary to ensure coherence with the Proposals amending the Dublin Regulation i and the Reception Conditions Directive i. As to the definition of the ground 'membership of a particular social group', the focus is on providing more concrete guidance on the weight to be attached to gender-related aspects. Furthermore, the amendments aim to remove all differences in the treatment of the two categories which cannot be considered as objectively justified, thus progressing towards uniformity of protection while maintaining the distinction between the two statuses.
The requirement of the existence of a 'serious and individual threat' in Article 15(c) was interpreted by the ECJ in its judgment of 17 February 2009, C-465/07 i. The Court defined the conditions under which such a threat can be exceptionally considered as established in the case of an applicant who is not specifically targeted by reason of factors particular to his/her personal circumstances and provided guidance on the use of the degree of indiscriminate violence characterising the armed conflict as a criterion for assessing the existence of a serious and individual threat. In this context, the Court examined the logic, structure and wording of several provisions of the Directive and found that they all coherently support and validate this interpretation. Moreover, it concluded that this interpretation is fully compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), including the case-law of the ECtHR relating to Article 3. Therefore, in view of the interpretative guidance provided by this judgment and of the fact that the relevant provisions were found to be compatible with the ECHR, an amendment of Article 15(c) is not considered necessary .
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- Grounds for and objectives of the proposal
- On this basis, the Commission identified as a main problem that the minimum standards adopted are vague and ambiguous. As a result
- b) to streamline procedures for granting rights, thus improving the efficiency of the asylum process, and
- General context
- Consistency with other policies and objectives of the Union
- Consultation of Interested Parties
- Summary of the proposed action
- 1. Actors of protection
- 2. Internal protection
- 4. Membership of a particular social group
- 5. Cessation of refugee and subsidiary protection status
- 6. Differentiation regarding the content of the two protection statuses
- 7. Content of protection
- 8. Family members
- Legal basis
- Subsidiarity Principle
- Proportionality Principle
- Impact on fundamental rights
- ê 2004/83/EC
The main objective of this proposal is to ensure
- higher protection standards regarding both the grounds and the content of the protection in line with international standards, and in particular in order to ensure the full and inclusive application of the Geneva Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967 ("Geneva Convention") and full respect for ECHR and the EU Charter of Fundamental Rights ("EU Charter"); and
- further harmonisation of protection standards in order to reduce secondary movements in so far as these are due to the diversity of national legal frameworks and decision-making practices and to different levels of rights provided in different Member States.
To this effect, the proposal addresses a series of issues presented below. A detailed explanation of the amendments is presented in the Annex to this Proposal.
The lack of clarity of the concept allows for wide divergences and for very broad interpretations which may fall short of the standards set by the Geneva Convention on what constitutes adequate protection. For instance, national authorities interpreting broadly the current definition have considered clans and tribes as potential actors of protection despite the fact that these cannot be equated to States regarding their ability to provide protection. In other instances, authorities have considered non-governmental organisations as actors of protection with regard to women at risk of female genital mutilation and honour killings, despite the fact that such organisations can only provide temporary safety or even only shelter to victims of persecution. In order to prevent such protection gaps and to ensure full compatibility with the Geneva Convention and enhanced quality and efficiency of decision-making as well as interpretative consistency and coherence with other provisions of the Directive, the proposal clarifies the criteria for assessing the nature of the protection.
Where the Directive establishes indicative lists, it uses terms such as 'include' or 'inter alia'; therefore, the absence of such terms in Article 7 is already an indication of the exhaustive character of the list. However, for the sake of enhanced clarity, it is useful to explicitly specify that the list of actors of protection is exhaustive.
It is also necessary to specify that protection should be effective and durable and that non-state actors of protection should be willing and able to enforce the rule of law. The notion of 'willingness to protect' reflects the requirement already set in Article 7 i of the Directive, according to which the applicant should have access to protection. The mere fact that an entity is able to provide protection is not sufficient; it should also be willing to protect the particular individual. Inversely, mere ' willingness to protect' is not sufficient in the absence of the 'ability to protect'. Moreover, even actors who are willing and able in principle to provide protection but not providing it in reality or who can provide protection only on a transitional or temporary basis are excluded from the scope of the concept. The reference to the enforcement of the rule of law gives more prominence to a condition already set in Article 7 i, namely the operation of an effective legal system .
Finally, the condition that protection should be effective and durable ensures coherence with Article 11 i of the Directive, which requires, for the purposes of cessation, that the change of circumstances in the country of origin should be significant and of non-temporary nature .
The purpose and content of international protection are not limited to non-refoulement. It is necessary thus to specify that it may be withheld only where protection is available in at least part of the country of origin. It is also necessary to ensure the compatibility of the concept of internal protection with Article 3 ECHR, as interpreted in a recent judgment of the ECtHR i. The current definition not only omits essential requirements flowing from this judgment, but also outright contradicts the conditions set by this Court. The proposal thus:
- introduces verbatim the pre-conditions set out in the above judgment for the applicability of the concept of internal protection, namely that the applicant should be able to travel, gain admittance and settle in the alternative location
- deletes the possibility to apply the internal flight alternative despite technical obstacles as incompatible with the above requirements
- includes a reference to the obligation of the authorities to obtain precise and up-to-date information on the general situation in the country, thus reflecting Article 8 i of the Asylum Procedures Directive.
3. The 'causal link' requirement
In many cases where the persecution emanates from non-State actors, such as militia, clans, criminal networks, local communities or families, the act of persecution is not committed for reasons related to a Geneva Convention ground but, for instance, with criminal motivations or for private revenge. However, it often happens in such cases that the State is unable or unwilling to provide protection to the individual concerned because of a reason related to the Geneva Convention (for example religion, gender, ethnicity etc). To address potential protection gaps, the proposal makes explicit that the requirement of a connection between the acts of persecution and the reasons for persecution is also fulfilled where there is a connection between the acts of persecution and the absence of protection against such acts.
Gender as such is normally not sufficient as a criterion for the definition of a particular social group; it is generally used in combination with other factors, such as class, marital status, ethnic or clan affiliation. However, women may form a particular social group in some societies, as evidenced by discrimination in their fundamental rights. The ambiguous wording of the last phrase of Article 10(1)(d) allows for protection gaps and for very divergent interpretations. In order to provide clear and useful guidance and ensure consistency, the amendment specifies that gender should be given due consideration for the purposes of defining a particular social group.
References to the exceptions to the “ceased circumstances” cessation clauses, set out in Articles 1C i and 1C i of the Geneva Convention, have been omitted from the Qualification Directive. These exceptions provide for the continuation of protection for 'compelling reasons arising out of previous persecution' and are interpreted as reflecting a general humanitarian principle. The proposal introduces these exceptions with regard both to refugee status and to subsidiary protection.
An amendment expected to significantly simplify and streamline procedures and to reduce administrative costs is aimed at approximating the rights granted to the two categories of beneficiaries of protection. When subsidiary protection was introduced, it was assumed that this status was of a temporary nature. As a result, the Directive allows Member States the discretion to grant them a lower level of rights in certain respects. However, practical experience acquired so far has shown that this initial assumption was not accurate. It is thus necessary to remove any limitations of the rights of beneficiaries of subsidiary protection which can no longer be considered as necessary and objectively justified. Such an approximation of rights is necessary to ensure full respect of the principle of non-discrimination, as interpreted in recent case law of the ECtHR i, and of the UN Convention on the Rights of the Child. It responds moreover to the call of the Hague Programme for the creation of a uniform status of protection.
To ensure the effective exercise of the rights formally granted to beneficiaries of protection, it is necessary to address the specific integration challenges they face.
a) Recognition of qualifications: In order to address the practical difficulties flowing from their inability to provide documentary evidence and their limited financial capacities, the proposal encourages Member States to adopt alternative appropriate procedures and exempt them from the fees involved or grant them financial assistance, where necessary.
b) Access to vocational training and employment: Beneficiaries of protection are often unable to work for years or they are unfamiliar with labour market requirements and recruitment practices. The proposal obliges Member States to offer them access to training courses to upgrade their skills and to counselling services offered by employment offices.
c) Access to integration facilities: The effective integration opportunities of beneficiaries of protection would be significantly enhanced if the different educational and professional backgrounds or other specificities of their situation were adequately taken into account in the integration facilities. The proposal requires Member States to develop in their integration policies the response that they consider appropriate to meet those specific needs.
d) Access to accommodation: Many beneficiaries of protection experience direct and indirect discrimination in the housing market. In line with the approach advocated in the Handbook on Integration i, the proposal calls on Member States to put in place policies aimed at preventing discrimination and achieving equality of opportunity.
e) Possibilities for reduction of benefits in cases of 'manufactured' claims: These possibilities are not conducive to integration and raise concerns from the perspective of the principle of non-discrimination. Furthermore, their limited use in practice points to their limited added value. It is thus proposed to delete these possibilities.
The definition of family members is extended so as to take into account the case where the beneficiary of protection is a minor and the wide range of situations where a minor might be dependent, while ensuring that the decisive criterion is the best interest of the child.
This proposal amends Directive 2004/83/EC and uses the same legal base as that act, namely points 1(c), 2(a) and 3(a) of the first paragraph of Article 63 of the EC Treaty.
Article 1 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, states that Ireland and the UK may ‘opt in’ to measures establishing a Common European Asylum System. In accordance with Article 3 of this Protocol, the United Kingdom and Ireland had given notice of their wish to take part in the adoption and application of the current Directive. However, the position of these Member States with regard to the current directive does not affect their possible participation with regard to the new directive.
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not bound by the Directive nor is subject to its application.
Title IV of the EC Treaty ('TEC') on visas, asylum, immigration and other policies related to free movement of persons confers certain powers on these matters on the European Community. These powers must be exercised in accordance with Article 5 TEC.
Due to the transnational nature of the problems related to asylum, the EU is well placed to propose solutions, in particular with regard to issues concerning the qualification and status of beneficiaries of protection. Although an important level of harmonization was reached by the adoption of the current Directive, further EU action is necessary to attain higher and more harmonised standards of protection and to take further steps towards a uniform status. In particular, further efforts towards the achievement of a level-playing field are urgently called for with a view to ensuring that the Dublin System can operate in a fair and efficient manner. As stressed in the Policy Plan, to address the concerns regarding the operation of this system, it is necessary to ensure that asylum seekers falling under it have equal access to protection.
In the Pact, the European Council highlighted its concern that considerable disparities remain between one Member State and another concerning the grant of protection and the forms that protection takes and called for new initiatives to complete the establishment of a CEAS, provided for in the Hague Programme, and thus to offer a higher degree of protection, as proposed by the Commission in its Policy Plan.
The relevant impact assessment assessed each option envisaged as a solution to the problems identified so as to represent an ideal proportion between practical value and efforts needed and concluded that opting for EU action does not go beyond what is necessary to achieve the objective of solving those problems.
This proposal was subject to an in-depth scrutiny with a view to ensuring that its provisions are fully compatible with i) fundamental rights flowing from general principles of Community law, which, themselves, are the result of constitutional traditions common to the Member States and the ECHR, as enshrined, moreover, in the EU Charter, and ii) obligations stemming from international law, in particular from the Geneva Convention, and from the UN Convention on the Rights of the Child.
The proposal will increase access to protection and justice : by clarifying the grounds for protection it will reduce protection gaps and diverse recognition practices and will lead to an overall improvement of the quality of the decision-making. It will also increase access to social protection, to the labour market and overall integration, to the extent that it raises the level of rights of beneficiaries of subsidiary protection and more generally of beneficiaries of international protection and their family members (by approximating the rights of the two statuses, raising the overall level of rights granted to beneficiaries of protection, broadening the definition of family members and eliminating the possibility to reduce benefits in case of 'manufactured' claims). The approximation of rights and the enhancement of the access to protection for women (amendments to the 'nexus requirement' and the 'particular social group') will reinforce the principle of non-discrimination . Finally, several amendments aimed at broadening the definition of family members and increasing the rights granted to beneficiaries of protection and their family members will also have positive impacts in terms of enhancing the rights of the child .
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