To recall, The Hague Programme provided for the Common European Asylum System to be established in 2010 and called for the establishment of a common asylum procedure and a uniform status for persons in need of international protection valid throughout the EU. In the European Pact on Immigration and Asylum, adopted in October 2008, the EU leaders asked the Commission to put forward concrete proposals for establishing a single asylum procedure comprising common guarantees and for adopting a uniform status for refugees and the beneficiaries of subsidiary protection.
Last December, the Commission presented the first proposals of the second phase of the asylum legislation: proposals amending the Directive on reception conditions for asylum-seekers, the Dublin Regulation and the Eurodac Regulation. The Commission also proposed the establishment of a European Asylum Support Office and a joint EU resettlement scheme.
On 21 October, the European Commission has taken another legislative step towards a single asylum system for the whole EU as it adopted proposals to amend the Directive on qualification and status of persons in need of international protection and the Directive on asylum procedures. The UK may ‘opt out’ from measures establishing a Common European Asylum System. The Government has recently decided to opt out from the revision of the EU Directive on Reception Conditions for Asylum Seekers but it was the first time that it has decided to opt out from an asylum measure. The development of a common European asylum system will have a significant impact on the UK’s future asylum policy. While commenting the Commission’s proposals, Timothy Kirkhope MEP has said that "Britain stands to lose a central pillar of its sovereignty: the ability to decide who can and cannot enter the UK.”
Presently, Member States still have some flexibility to establish their own rules. However, the Commission has pointed out that Member States have different decision-making practices and provide different levels of rights. Consequently, it has put forward a proposal for a recast of the 2004 Qualification Directive which will further harmonise protection standards for the qualification and status of beneficiaries of international protection. According to the Commission the proposal aims to simplify decision-making procedures in order to enable national authorities “to apply the criteria more robustly and to identify more quickly persons in need of protection and those who are not.”
The proposal would eliminate the differences on the rights granted to refugees and beneficiaries of subsidiary protection. Hence, there would be no longer different conditions and procedures for issuing residence permits and travel documents, for granting access to employment, social welfare, healthcare and benefits for family members as well as to integration programmes. The draft Directive removes the Member States discretion to decide whether to grant those rights to people with subsidiary protection. The Parliamentary Under-Secretary of State at the Home Office, Meg Hillier, has explained to the European Scrutiny Committee that the UK already provides for a single procedure for refugees and people with subsidiary protection, therefore, in this regard, no changes would be required in the UK.
Member States are required, under the existing directive, to ensure family unity and to provide family members with the same benefits as the person granted protection. However, the draft proposal broadens the definition of “family members” and provides more categories. The Government is particularly concerned about such extension as it believes that the risk of “using an alleged family connection as a cloak for trafficking in human beings” would be greater.
The Qualifications Directive would also be amended in order to require Member States to ensure equal treatment between beneficiaries of international protection and nationals as regards recognition procedures for foreign diplomas and certificates as well as to ensure that they have access to appropriate schemes for the assessment and validation of their learning. Member States would be also obliged to offer beneficiaries of international protection access to training courses and employment offices’ counselling services. Moreover, member states would be required to ensure access to accommodation to beneficiaries of international protection under the same conditions as nationals.
Presently, Member States are allowed to reduce employment and social benefits granted to a refugee or beneficiaries of subsidiary protection if their status “(…) has been obtained on the basis of activities engaged in for the sole or main purpose of creating the necessary conditions for being recognised as a refugee.” However, this is scrapped from the draft directive.
The Commission also presented a proposal for a directive on minimum standards on procedures in Member States for granting and withdrawing international protection which is a recasting of the 2005 Directive. The Commission has pointed out that Member States have different procedural arrangements enjoying therefore “a wide margin of discretion.” Thus, it presented this proposal whereby Member States would no longer be allowed to have their own procedural arrangements. Meg Hillier has said to the European Scrutiny Committee that the Government is concerned that the proposal would “impede Member States’ ability to tackle abuses of the asylum system.”
The Commission has proposed to widen the scope of the Directive which would also apply to applications for international protection made in the territorial waters of the Member States. This would be a major concern for the UK taking into account its territorial waters and Gibraltar.
Under the draft proposal Member States would be required to provide for training programmes for staff examining and taking decisions on applications for international protection. Moreover, Member States would be obliged to guarantee access to organisations providing legal advice and counselling to applicants of international protection at the border crossing points and detention facilities.
The draft directive introduces new requirements that Member States’ competent authorities have to respect while conducting a personal interview for an application for international protection. They would not be allowed to wear a uniform and a transcript must be made of every personal interview.
The Commission has also proposed a six months limit for completing procedures at first instance. Consequently, Member States will have to adapt their national procedures with the proposed time limits as they will be required to process applications for international protection within six months.
Furthermore, the possibility to omit a personal interview in accelerated procedures is scraped from the draft directive. In fact, the draft proposal provides for a limited and exhaustive list of grounds under which member states may accelerate the examination of an application of international protection. According to the Government the Commission’s proposal would seriously restrict the UK use of the accelerated procedure for the examination of applications and would jeopardize the UK’s “detained fast track” scheme. Moreover, the draft directive expressly states that Member States must ensure that applicants for international protection have the right to an effective remedy before a court or tribunal, against first instance decisions. It also provides for automatic suspensive effect of appeals against these decisions. Hence, the UK would be prevented of using non-suspensive appeals in cases of manifestly unfounded asylum claims.
The proposals are subject to co-decision and qualified majority voting in the Council. The Government has opted into the 2005 Procedures Directive and the 2004 Qualification Directive. It remains to be seen whether it will opt into the draft directives. On 30 November, the Justice and Home Affairs Council held its first discussion on the Commission’s proposals. According to the Council conclusions there are “a number of issues which will need to be addressed in the coming negotiations within the Council and with the European Parliament.”
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Meg Hillier, the Parliamentary Under-Secretary of State at the Home Office, has recently explained to the European Scrutiny Committee that the Government has decided not to opt into the draft Qualifications Directive as it “would pose a significant risk to the UK’s asylum system.” The Government is particularly concerned with the broader definition of “family members” which includes “the parents of unaccompanied minors whose claims are granted.”
Meg Hillier has said “We fear that that would lead to a significant increase in the number of applications we receive from minors (currently about 3500 a year, or 12% of our intake) — possibly as a result of parents sending their children ahead of them in the hope of being able to join them if they are granted status. That would be deeply prejudicial to the welfare of the children concerned and is in our view, the wrong direction to go in when numbers of UASCs [unaccompanied asylum seeking children] arriving in Europe have already significantly increased.” Moreover, she pointed out that the Government already spends around £140m a year in caring for unaccompanied asylum seeking children, and the Commission proposal would entail further costs.
The Government has also decided not to opt into the draft directive on minimum standards on procedures in Member States for granting and withdrawing international protection, as it “would prevent the UK from operating the Detained Fast Track procedure on its current terms.”
Nevertheless, according to Meg Hillier the Government will continue to participate in the negotiations with the view to opt in after the proposals are adopted if its concerns have been removed.
In the meantime, on 30 October, the European Council has called for further “efforts to adopt, implement and evaluate instruments to continue with the realisation of the Common European Asylum System, addressing the issue of internal secondary movements as well as the need for tangible and effective solidarity with Member States under particular pressure.”
Moreover, in order to enhance the operational capacities of Frontex, the European Council asked the Commission to present proposals in 2010 to increase “operational cooperation between Frontex and countries of origin and transit” as well as to examine “the possibility of regular chartering financed by Frontex of joint return flights.”
It is important to mention that the European Council Conclusions are in line with a joint letter sent by Silvio Berlusconi and Nicolas Sarkozy to José Manuel Barroso, on 23 October, calling for regular flights to deport illegal immigrants funded and operated by Frontex.
UK and France have recently co-operated on a charter flight that deported Afghans to their country of origin.
It is important to recall that the UK is not bound by the Frontex regulation but it is allowed to participate in joint operations on a case-by-case basis with the agreement of the Frontex Management Board. Nevertheless, the UK Government is committed to Frontex and makes an annual financial contribution to it.