ILPA's submission
on the Commission's Proposal for a Council Directive laying
down minimum standards for the qualification and status of
third country nationals and stateless persons as refugees, in
accordance with the 1951 Convention relating to the status of
refugees and the 1967 protocol, or as persons who otherwise
need international protection (COM(2001)510)
Part I:Executive
Summary
Part II:
Detailed Analysis
Part III:
Proposed Amendments
Part I:
Executive Summary
ILPA welcomes the
Commission's Proposal for a Council Directive laying down
minimum standards for the qualification and status of third
country nationals and stateless persons as refugees, in
accordance with the 1951 Convention relating to the status of
refugees and the 1967 Protocol (the "Refugee Convention"),
or as persons who otherwise need international protection (the
"Proposed Directive") as a significant step in the
creation of a common European asylum system. It is clear that
harmonisation of interpretation of international obligations
as regards those seeking asylum is necessary given the wide
divergence in interpretation across Member States at the
present time.
However ILPA is
anxious that any harmonisation should be at the highest
levels only.Whilst ILPA considers that harmonisation of the
asylum systems across EU Member States could potentially
provide for better protection for refugees, fairer procedures
and more uniform access to reception conditions, we are
concerned that this will not ultimately be the case.
It is
unsatisfactory that this directive, arguably the central
plank to the asylum system, has been the last of the asylum
directives to be proposed by the Commission. However of
greater concern is the fact that it was the
last to be considered by the Council. Given the number of
issues that need to be resolved which underpin all the
directives such as the ambiguity in whether any of the other
proposed asylum directives will apply to those who are
seeking protection outside the ambit of the Refugee
Convention, it is essential that a full discussion of this
directive takes place immediately.
Scoreboard
1)
Compliance
with the European Convention on Human Rights (ECHR)
6/10
2)
Compliance with other international treaties
6/10
3)
Compliance with the principles of EU migration and asylum
policy
8/10
4)
Safeguarding and strengthening rights at national level
6/10
Total
26/40
1.
ILPA considers that the inclusion of "subsidiary
protection" categories in this proposed directive is
essential. However we are concerned at the references to the
temporary nature of subsidiary protection and the limitation
of rights afforded to those in need of such protection. Given
the fact that the proposed directive defines the scope of
those in need of subsidiary protection in a limited way, it
is entirely unjustified that protection afforded should be
any more temporally limited than that protection afforded to
those under the Refugee Convention, or that the rights
accruing to such person should be any less than that which
accrue to those qualifying as refugees.
2.
Whilst the Explanatory Memorandum makes reference to the
primacy of the Refugee Convention as justification for the
temporal and qualitative difference in the protection
offered, this does not provide a reason to grant those who
are in need of subsidiary protection any lesser standard of
protection. It is entirely undesirable and unjustifiable that
those who may not be refouled as a result of the
protection afforded by Article 3 of the European Convention
on Human Rights (ECHR) for instance are provided with a
lesser standard of protection than those protected by the
Refugee Convention.
3.
ILPA welcomes the apparent reaffirmation of commitment to the
Refugee Convention in the preamble to the proposed Directive
and the fact that the proposed directive is made without
prejudice to Member States’ obligations under
international human rights instruments. However ILPA is
concerned that the proposed directive appears to be laying
down rules for the interpretation of the Refugee Convention
which may fall short of the requirements of Article 1(A) of
the Refugee Convention and that primacy is not given to the
Refugee Convention in cases of conflict between the Refugee
Convention and the proposed directive. ILPA considers that it
is essential that the proposed directive is amended to make
specific reference to the primacy of the obligations of
Member States under the Refugee Convention.
4.
ILPA acknowledges that in certain areas, particularly as
regards non-state agents of persecution, the directive will
raise standards in some Member States. However ILPA is
concerned that the temporal restrictions on the residence
permits granted to subsidiary protection categories and the
limitation on certain rights will permit the lowering of
standards of protection in many Member States where those
protected by Article 3 ECHR will be given rights equivalent
to refugee status. ILPA is also concerned that the areas of
conflict between the Refugee Convention and the proposed
directive as outlined below may encourage Member States to
lower their standards.
Part II: Detailed
Commentary by Articles
Article 2 (Definitions)
5.
Article 2(c) defines a refugee as a third country
national or stateless person who fulfils the requirements of
Article 1(A) of the Refugee Convention as interpreted by the
rules laid down in the proposed directive. ILPA's concerns
about this definition are two fold: firstly the restriction
by nationality of the applicant and secondly the limitation
to qualification by reference to the rules laid down by the
proposed directive.
6.
ILPA considers that limiting the definition to third
country nationals or stateless persons does not accord with
the definition of a refugee as set out in the Refugee
Convention itself and observe that this definition does not
replicate the precise wording of the refugee definition
contained in the Refugee Convention. Whilst it is
acknowledged that it is very unlikely that nationals on the
present EU Member States would have a need for refugee
protection, this does not justify restricting the definition
of a directive which purports to give effect to an
international instrument. Similarly, the protection of
Article 3 ECHR is not limited by nationality.
7.
It should be recalled that in the coming years the European
Union will be expanding to include a number of States, some
of which are still refugee producing. Furthermore the
European Union should consider the "exportability"
of its concepts and definitions in this field and consider
the repercussions for other regions of the world if some
States were to refuse to receive refugees from their
neighbours.
8.
As regards ILPA's second concern, we consider that the
qualification by reference to requirements of the rules laid
down in the proposed directive itself does not give
sufficient primacy to the Refugee Convention. If the rules
laid down in the proposed directive were to conflict with the
Refugee Convention then the later would need to be given
supremacy. The definition of a refugee is a person who
fulfils the requirements of Article 1(A) of the Refugee
Convention without any further qualification.
9.
Article 2(e) defines international protection for
persons not entitled to refugee status but who are otherwise
in need of international protection as “subsidiary
protection”. ILPA regards the term “complementary
protection” as more preferable, reflecting the
fact that those who are in need of international protection
do not form a lesser category of persons than Refugee
Convention refugees, but are a category of persons protected
by complementary international human rights
instruments, which are legally binding on Contracting States.
Article 4 (More
favourable provisions)
10.
Article 4 provides that Member States may retain or introduce
more favourable standards in determining who qualifies as a
refugee or as a person in need of subsidiary protection. As
with all the other proposed directives in the asylum field,
ILPA strongly believes that a standstill clause be included
within the directive, to specifically preclude Member States
from lowering their standards. Given the fact that there are
weak provisions giving a great deal of flexibility to Member
States included in all the proposed directives and there
remains underlying the ultimate desire of Member States to
protect themselves against “secondary movements of
asylum seekers”, it is essential that the harmonisation
process does not become a process whereby existing rights are
eroded and standards are lowered in a race to the bottom. If
Member States are committed to the highest standards of
refugee protection, as many would claim, then a standstill
clause should present no difficulties to them.
Article 5 (Elements
of International Protection)
11.
Article 5 defines the "elements of international
protection". In Article 5(1) the personal scope of a
refugee is again restricted to third country nationals and
stateless persons. ILPA repeats its concerns about such
restrictions and considers that Article 5(1) should be
amended to reflect Article 1(A) of the Refugee Convention
more accurately.
12.
Article 5(2) makes provision for those who might qualify for
subsidiary protection. ILPA is concerned at the reference in
this paragraph to necessity of demonstrating that the
applicant has suffered "serious and unjustified
harm". ILPA finds this qualification somewhat
extraordinary given the fact this provision would purport to
give effect to international human rights law and more
particularly the European Convention on Human Rights. With
regards to the ECHR serious harm may never be justifiable
under Article 3, for instance, no matter what the
circumstances in the country of origin or the behaviour of
the applicant concerned. The explanation offered for the
inclusion of the word (“that there are circumstances in
which a state may be justified in taking measures that cause
harm to individuals such as in the event of a public
emergency or national security”) is wholly unconvincing
in this respect and is given without reference to the fact
that Article 15 permits no derogation whatsoever from Article
3 in any event.
Article 6 (Extension
of international protection to the accompanying family
members)
13.
Article 6 provides that accompanying family members
should be entitled to the same status as the applicant for
international protection. Whilst ILPA welcomes this proposal,
we consider that this provision must be amended to include
those members of the applicant’s family who seek to join
the applicant, as set out in the UNCHR Handbook, to ensure
fair treatment for those family members who cannot join the
refugee or person with subsidiary protection until later.
14.
Furthermore it is essential that family members of a person
seeking international protection should have access to the
asylum procedure and procedure for applying for subsidiary
protection in their own right if they so wish.
Article 7 (Assessment
of applications for international protection)
15.
Article 7 sets out the matters to be taken into account when
assessing a claim for international protection. ILPA is
anxious that when assessing such claims that there is close
adherence to the evidentiary standards and burdens laid down
in the UNHCR Handbook and that applicants are given “the
benefit of the doubt”.
16.
To this end ILPA concerned that the reference in
Article 7(e) to whether there is "credible evidence that
laws or regulations are in force and applied in practice in
the country of origin which authorise or condone the
persecution or the infliction of other serious harm to the
applicant" might be taken to impose aparticular
evidentiary burden on the applicant. There will be many
instances where laws or regulations on their face appear to
be in line with international standards but in fact mask
persecution of certain groups or persons.
17.
Indeed ILPA is concerned that Article 7 as a whole does not
reflect the substantive consideration which should be given
to statements made by the applicant himself and that there
may be an over-emphasis on an assessment of “objective”
evidence concerning the applicant’s country of origin,
which may be difficult to obtain and may in any event be out
of date or inaccurate.
Article 8 (International
Protection needs arising sur place)
18.
Article 8 provides that a claim for international protection
may be based on events which have taken place since the
applicant has left his country of origin. Article 8(2),
however, excludes from protection those who have engaged in
activities for the sole purpose of creating the necessary
conditions for making an application for international
protection.
19.
ILPA is acutely concerned at this qualification. Put shortly
the assessment of a claim for international protection must
be based on the need for that protection and the
repercussions for the applicant if they are to be refouled,
not on why that need comes about. Whilst there will doubtless
be close scrutiny of an application that is based on “self
serving” activities, if risk of harm is nonetheless
established international protection must be given. There is
no “good faith” requirement as such in the Refugee
Convention or the ECHR. There is a real danger that this
provision will result in an over-emphasis in assessment of
the motivations of the applicant rather than the assessment
of the well foundedness of the claim that the applicant faces
a risk of persecution on return to his country of origin. In
any event ILPA considers that the assessment of motivation is
extremely difficult for decision-makers. ILPA is also
concerned that such a test may not be compatible with Article
3 ECHR given that the conduct of the individual is irrelevant
in assessing whether his expulsion would be in breach of
Article 3 (Chahal v UK (1996)).
Article 9 (sources of harm and
protection)
20.
ILPA welcomes the provision in Article 9(1) outlining the
sources of persecution in that it accords with the
internationally accepted view and common jurisprudence of the
majority of Member States that non-state actors may be agents
of persecution for the purposes of Article 1(A) of the
Refugee Convention. In ILPA’s view there is nothing in
the language of the Refugee Convention that can support a
suggestion that persecution must emanate from the State or be
attributable to the State. ILPA’s experience suggests
that the opposite view taken by a few Member States in the
European Union is causing great difficulty in the working of
the Dublin Convention, demonstrated by the number of cases
taken to the courts in the UK, for instance, on the
difference in approach. If this provision is not preserved by
the Council, the cohesion of the European asylum system will
be severely undermined.
21.
ILPA has serious concerns about the remainder of Article 9
however. As regards Article 9(2) the Explanatory Memorandum
explains that for the system to offer effective protection
the State must be able and willing to operate it, such that
there is no significant risk of persecution or other serious
harms being realised. Unfortunately the wording of Article 9(2)
itself does not reflect this and instead presents a rather
more categorical and inflexible standard which does not
address the complexities of the assessment that needs to be
made.
22.
ILPA is alarmed by the provision in Article 9(3) that
international organisations and stable quasi-State
authorities may be considered as “State” protection
for the purposes of the proposed directive. ILPA does not
consider that non-state or quasi-State bodies can provide
“protection” which is equivalent to that provided
by a State. International organisations and quasi-State
authorities are not parties to international human rights
instruments and are therefore unaccountable in international
law.
23.
There are numerous examples in last century of the inadequacy
of protection offered by international organisations (e.g.
Rwanda) which is unsurprising given that an international
organisation is only likely to have limited control and
authority over territory and will not be able to carry out
the full functions of a State. Indeed we can think of no
examples where international organisations have been given a
sufficiently broad mandate over a sustained period of time to
ensure sustained compliance with international human rights
standards and full systems of law and order. Following the
case of Bankovic v Belgium and others (European Court
of Human Rights, December 2001) the question of the
accountability of international organisations in
international human rights law remains unresolved.
24.
Quasi-State authorities tend to be similarly transient, they
may be unstable and their control will not necessarily even
be accepted. Their political instability and the fact that
they are not parties to international human rights
instruments make them entirely unsuitable as protectors of
human rights standards.
Article 10 (Internal Protection)
25.
Article 10 provides for the circumstances in which an
applicant might be reasonably expected to return to another
part of their own country. ILPA welcomes the provision which
provides that there shall be a strong presumption against
finding an internal flight alternatives if the agent of
persecution is, or is associated with, the State. ILPA
further welcomes the inclusion of the personal circumstances
which should be taken into account when considering the
viability of internal flight alternative.
26.
However ILPA does caution generally against the use of the
internal flight alternative concept. The concept is too
readily used by Member States without a good understanding of
the interconnection between different State and non-State
bodies within a country of origin and without an
understanding of the difficulties that an individual can face
in internally relocating in a country in which he has been
persecuted or faces a risk of persecution.
27.
ILPA is concerned that the assessment of whether an applicant
can be “reasonably” returned to another part
of the country must ensure that the applicant can safely
access the area of internal protection; that the internal
flight alternative offers durable protection so that the
applicant will not be forced back into the area where there
is a risk of serious harm and that the protection afforded to
the applicant is by a State body and not a non-State actor.
Article 11 (the Nature of
Persecution)
28.
Article 11 outlines the nature of persecution to be included
in the qualification for refugee status. ILPA welcomes the
fact that this provision does not preclude the further
development of the law in this area and lays down only
minimum standards. ILPA further welcomes the inclusion of
prosecution and punishment in Article 11(1)(c.) and the
inclusion of conscientious objection to military service (Article
11(1)(d)).
29.
ILPA has concerns however that Articles 11(1)(a) and
(b) may be too prescriptive in so far as they purport to
limit persecution to circumstances where there is a risk to a
certain limited set of rights, namely “life, freedom or
security” as being the only areas of concern or worthy
of protection. ILPA considers that the serious infringement
of any core human rights would constitute persecution (UNHCR
Handbook para. 51).
30.
ILPA is further concerned at the absence of reference to
civil war and internal armed conflict as being a type of
persecution in Article 11. Whilst it is accepted that not all
civil wars or armed conflicts would give rise to persecution
within the meaning of Article 1(A) of the Refugee Convention,
it must be acknowledged that war and violence may be carried
out in a way which victimises people on ethnic or religious
grounds and that they may be instruments of persecution.
Further, the claim for refugee status may be unrelated
to an internal armed conflict. Shortly stated
situations of internal armed conflict and civil wars are
not of themselves mutually exclusive with refugee
status.
Article 12 (Reasons for
Persecution)
31.
Article 12 outlines the reasons for persecution which may
give rise to refugee protection. ILPA welcomes the fact that
these appear to be broadly interpreted and are couched in
sufficiently permissive language so as to allow for further
development in the law in this area.
32.
ILPA is concerned however that the concept of “political
opinion” may not be sufficiently broadly construed to
take into account of a person’s beliefs or thoughts
rather than simply their “opinion” and would
suggest the need for clarification of the term “political
opinion” to include thoughts and beliefs.
Article 13 (cessation of refugee status)
33.
Article 13 outlines the circumstances in which refugee status
may be revoked. ILPA welcomes the fact that this provision
broadly concurs with Article 1C of the Refugee Convention and
that the burden of proving that a person has ceased to be in
need of protection is placed on the Member State.
34.
However ILPA is concerned at the absence of any reference to
humanitarian or compelling reasons for a refugee refusing to
avail himself of the protection of his country of origin.
These might be due to the social, family and other ties that
the refugee has made in the Member State and also due to the
serious nature of the harm suffered by the refugee in the
past making it unacceptable for him to ever return to his
country. ILPA suggests that this provision is amended to
include the provisions of Articles 1(c)(5) and (6) of the
Refugee Convention.
Article 14 (Exclusion from
Refugee Status)
35.
Article 14 outlines the circumstances in which Member States
may exclude a person from attaining refugee status. ILPA
accepts that this provision broadly concurs with Article 1F
of the Refugee Convention. However ILPA is concerned that
family members of persons excluded under this provision
should be given the opportunity to claim asylum in their own
right.
Article 15 (Grounds for
subsidiary protection)
36.
Article 15 outlines the grounds on which a person may be
granted subsidiary protection. ILPA welcomes the inclusion of
subsidiary protection categories in this proposed directive
which gives effect to Member State’s obligations under a
range of international human rights law instruments, most
particularly Article 3 ECHR but also the UN Convention
against Torture. However ILPA considers that it is essential
to ensure that subsidiary protection is not used where
refugee status would in fact be applicable. There are a large
number of cases which could clearly fall into both refugee
status and subsidiary protection categories. However in ILPA’s
view, particularly given the lesser rights that accrue to
those with subsidiary protection status under this directive,
it should only be granted where the person clearly
falls outside of the Refugee Convention.
Article 16 (Cessation of
subsidiary protection status)
37.
Article 16 provides for the circumstances in which subsidiary
protection status may be withdrawn. As with the cessation of
refugee status, ILPA considers that the burden of proof for
establishing that the circumstances in the country of origin
have changed or cease to exist must lie with the Member
States.
Article 17 (Exclusion from
subsidiary protection status)
38.
Article 17 provides for the circumstances in which a person
is be excluded from attaining subsidiary protection status.
The provision specifically obliges Member States not to grant
subsidiary protection to an applicant in specified
circumstances. ILPA is extremely concerned at this provision.
As the subsidiary protection status is intended to give
effect to Member States obligations under international human
rights law and most particularly Article 3 ECHR, the exclusion
from status is unjustifiable and may bring States potentially
into breach with international law instruments.
39.
The European Court of Human Rights has, on a number of
occasions, made clear that to remove a person to face
torture or inhuman or degrading treatment or punishment would
be a breach of the sending State’s obligations under
Article 3, no matter what the conduct of the applicant has
been or what crimes he is accused of. Whilst the
proposed Article 17 does not oblige States to remove
applicants who fulfil the exclusion criteria, the failure to
grant any status to such persons, who as a result of
international law are irremovable, may in itself be inhuman
or degrading and may lead to suffering and destitution by the
applicant and his family members. Since in relation to
Article 3 ECHR it is now trite law that such protection is
wider than that contained in the Refugee Convention (see for
example Ahmed v Austria (1997) 24 EHRR 278) ILPA can see no
justification whatsoever for this provision. It could also be
considered to infringe the right to human dignity, as
guaranteed by national constitutions of the Member States and
forming part of the general principles of Community law (see
Cases C-13/94 and C-377/98), and now guaranteed by the EU
Charter of Fundamental Rights.
Article 21 (Residence Permits)
40.
Article 21 provides that refugees and their accompanying
family members be granted residence permits which are valid
for five years and renewable automatically. It further
provides that persons granted subsidiary protection status
should be granted a residence permit valid for one year and
automatically renewed until such time as the authorities
establish that protection is no longer required. ILPA objects
to the short duration of the residence permits granted to
those afforded subsidiary protection status.
41.
ILPA considers that residence permits of such duration will
create unacceptable insecurity amongst people recognised as
being in need of international protection and lead to their
social exclusion. ILPA also considers that the annual renewal
of residence permits places an undue administrative burden on
the authorities which will lead to delays and further
insecurity for the individuals concerned. The reality is that
persons in need of international protection who fall outside
of the Refugee Convention often have protection needs which
are as long lasting in duration as refugees. Given the
fact that the proposed directive already provides for the
cessation of subsidiary protection status where the
protection need no longer exists (Article 16) ILPA does not
see that there is any justifiable reason for the short
duration of the residence permits.
Article 24 ( Access to employment)
42.
Where as Articles 24(1) and (2) provide that refugees should
be granted access to employment and vocational training
immediately upon being granted refugee status, those granted
subsidiary protection status may be required to wait 6 months
before being permitted to work and one year before being
permitted to access vocational training. ILPA finds the
differentiation between the treatment of refugees and those
with subsidiary protection status unacceptable and
unjustified. Access to employment and vocational training are
essential for the integration of persons within a community,
allowing them to live with dignity in society and to provide
for themselves.
Article 31 (Access to
integration facilities)
43.
Article 31 provides that refugees are eligible for
integration programmes as soon as they attain refugee status,
whereas those gaining subsidiary protection status may be
precluded from such programmes for up to a year. ILPA again
finds the difference in treatment between refugees and those
with subsidiary protection status unjustifiable and
unacceptable. It is essential that all person in need of
international protection are given facilities to promote
their integration within society as soon as possible in order
that they maintain their dignity and are able to participate
in all aspects of society as soon as possible.
Article 33 (Cooperation)
44.
Article 33 provides for measures to be taken to
establish cooperation and exchange of information between
Member States. ILPA is concerned that such cooperation and
information exchanges should be carried out in a transparent
manner enabling non-governmental organisations to be able to
obtain information easily. Furthermore Member States and the
Commission should ensure that there is cooperation with non-governmental
organisations so that their knowledge and resources are used.
Effects of Harmonisation
45.
Finally, ILPA believes that with the harmonisation of the
concept of “complementary protection” at an
adequate minimum standard, there is no possible rationale for
leaving applications for subsidiary protection out of the
proposed EC Directives for reception conditions for asylum-seekers
or procedures for asylum applicants. Such measures must
therefore automatically be amended when this proposed
Directive is adopted. Similarly, with harmonisation,
persons with subsidiary protection must be given equal status
with refugees as regards freedom to travel and family reunion.
Finally, with harmonisation of the two forms of status, it
would also be useful to require Member States to establish a
“one-stop” application system for them, and to
clarify the relationship between the two types of status
within that application system.
Part III: Suggested amendments
1)
Article 1 should be amended as follows:
“…for
the qualification and status [five words deleted]
of persons as refugees or as persons who otherwise need
international protection.”
The Directive
should not have a narrower personal scope than the Geneva
Convention or the ECHR. Corresponding changes must be
made throughout the text, in particular to the definitions in
Article 2(c), (g), (h), (i), (j), (m) and (n) and Article 5.
2)
Article 2(e) should be amended as follows:
“Complementary
protection” means…
It is necessary to change the title
to stress that persons with this status are not in a “lesser”
category than Geneva Convention refugees. Corresponding
changes must be made throughout the text.
3)
A new Article 4(2) should be added as follows:
In the event
of any conflict between this Directive and the Geneva
Convention, the European Convention on Human Rights, the
United Nations Convention Against Torture or any other
international instrument that provides for higher standards
for human rights protection, the other instrument shall take
precedence.
It is important for legal certainty
and the protection of human rights to guarantee expressly the
primacy of human rights instruments that set higher standards.
4)
A new Article 4a should be added as follows:
Member
States shall not reduce the standards applicable to the
definition or content of refugee or complementary protection
status falling within the scope of this Directive.
As this is only the first phase of
the Common European Asylum Policy and there is a risk of a
competition towards lower standards to deter asylum seekers,
this Directive should prevent Member States from lowering
their standards.
5)
Article 5(2) should be amended as follows:
“…and
who, owing to a well-founded fear of suffering serious [two
words deleted] harm set out in Article 15…”
The implication that a person could
be returned to face “justified” harm is a clear
breach of Article 3 ECHR, as defined in the judgments of the
European Court of Human Rights. Corresponding changes
must be made throughout the text.
6)
Article 6(1) should be amended as follows:
“…that
accompanying family members or family members who join
the applicant later are entitled to the same status…”
There is no justification for
limiting the extension of status only to those family members
who are with the family member at first, particularly
considering that it may often be difficult in practice for
family members to flee persecution or serious harm together.
7)
A new Article 6(3) should be added as follows:
If
international protection has not yet been granted, family
members shall be entitled to apply for recognition of
subsidiary protection or refugee status in their own name.
Family members
should also be able to apply for status.
8)
A new Article 7a should be added as follows:
1.
Where there are statements that are not susceptible of proof,
the applicant should be given the benefit of the doubt if his
or her account appears credible, coherent and plausible, and
does not run counter to evidence that proves the contrary.
2.
Persons examining an application for protection must take
into account the difficulty in obtaining documentary proof,
having regard to the situation in the country of nationality
(or, for a stateless person, the country of former habitual
residence) in assessing the validity of any evidence and the
credibility of the applicant’s statements.
It should be made clear that Article
7 does not impose too onerous a burden on the
applicant for protection; the difficulties of proving a claim
must be acknowledged and the benefit of doubt given where
appropriate (as recognised in the UNHCR’s ‘handbook’).
Further, the difficulty of obtaining fully accurate and up-to-date
information on countries of origin should be emphasised.
9)
Article 8(2) should be deleted, and Article 8(1) amended
as follows:
A
well-founded fear of being persecuted or suffering serious [word
deleted] harm may be based on events which have
taken place or activities which have been engaged
in by the applicant since the applicant left his
country of origin.
The limitation suggested by the
proposed Article 8(2) is likely incompatible with the Geneva
Convention and the ECHR.
10)
A new Article 9(2a) should be added as follows:
The
assessment in paragraph 2 must consider whether the system of
protection is sufficient and accessible to all members of the
population, and whether the State is able and willing to
operate that system, such that there is no significant risk
of persecution or other serious harm. Member States
shall consider the following factors in this assessment:
a)
the general conditions in the country of origin;
b)
the State’s complicity with respect to the infliction of
harm at stake;
c)
the nature of the State’s policies with respect to the
infliction of harm at stake, including the effective
application of its criminal law;
d)
the influence which the alleged perpetrators have on State
officials;
e)
the effectiveness of any action taken in practice;
f)
any pattern of State unresponsiveness;
g)
denial of State services;
h)
whether any steps have been taken by the State to prevent
infliction of harm;
i)
evidence by the applicant that the alleged persecutors are
not deterred by actions of the State;
j)
the quality of the applicant’s access to State
protection, in particular whether the applicant is part of a
group that in practice does not enjoy effective legal
protection; and
k)
any steps taken by the applicant to obtain protection
from State officials and the State response to such attempts.
Article 9(2) as drafted is rather
inflexible. The Directive should spell out further what
the assessment should include, taking into account the
elements set out in the Commission’s explanatory
memorandum.
11)
Article 9(3) should be deleted.
There is no effective system for
ensuring that international organizations or quasi-state
bodies follow international human rights law, which does not
bind them.
12)
Article 10(2) should be amended as follows:
“…including
the respect of human rights; to the durability of the
internal protection in question, which must be provided by
the state; to the safety of transit to the relevant part of
the territory; and to the personal circumstances of
the applicant…”
Further conditions for application of
the “internal protection alternative” must be added
to ensure the safety of any person sent back in such
circumstances.
13)
Article 11(2)(c) should be amended as follows:
“…in
which many or all persons face the risk of generalised
oppression, inter alia in the context of civil war or
internal armed conflict.”
The Directive should make it
clear that the conditions for granting Geneva Convention
refugee status can still be met pursuant to situations of
armed conflict.
14)
Article 12(5) should be amended as follows:
“an opinion,
thought or belief on a matter…whether or not
that opinion, thought or belief has been acted
upon…”
The Directive should also apply to less tangible
expressions of opinion.
15)
A new Article 13(3) should be added as follows:
Member States
shall not cease refugee status where, in accordance with
Articles 1.C(5) or (6) of the Geneva Convention, it is
unacceptable for the refugee to return to his country of
origin or nationality due to the serious nature of the harm
suffered by the refugee there, or where the refugee has
formed lasting social, family or other ties in that Member
State.
The
Directive should reflect the conditions set by the Geneva
Convention on the application of cessation, as well as the
protection for long-term residents conferred by Article 8 of
the ECHR, according to the case law of the European Court of
Human Rights.
16)
A new Article 16(3) should be added as follows:
The Member
State which has granted complementary protection bears the
burden of proof to establish that an individual has ceased to
be in need of international protection for a reason
stipulated in paragraph 1.
The test for
ending complementary protection should be consistent with the
test for refugee status.
17)
A new Article 16(4) should be added as follows:
Member States
shall not cease complementary protection status where it is
unacceptable for the person concerned to return to his
country of origin or nationality due to the serious nature of
the harm suffered by the person concerned there, or where the
person concerned has formed lasting social, family or other
ties in that Member State.
The
Directive should set conditions on cessation of complementary
protection status analogous to the conditions set by the
Geneva Convention on the application of cessation. It
should also take account of the protection for long-term
residents conferred by Article 8 of the ECHR, according to
the case law of the European Court of Human Rights.
18)
Article 17 should be deleted.
The concept
of ‘exclusion’ from subsidiary protection status
may mean that Member States will not grant any status at all
to persons falling into the ‘exclusion’ clauses of
the Geneva Convention but within the scope of Article 3 ECHR.
Such a lack of status may infringe the ECHR and the right to
human dignity guaranteed by the EU Charter of Fundamental
Rights and the general principles of Community law.
19)
Article 21(2) should be amended as follows:
“…a
residence permit [word deleted] which must be
valid for at least four years and renewable
automatically. [sentence deleted].”
Since the
situations giving rise to subsidiary protection are often
long-lasting, the length of the residence permit should
reflect this.
20)
Article 24(1) should be amended as follows:
“Member States
shall authorise refugees and beneficiaries of
subsidiary protection status to engage in…”
Access to
employment is a basic aspect of day-to-day life that should
not be delayed for any person with a recognised need for any
form of international protection.
21)
Article 24(2) should be amended as follows:
“…are
offered to refugees and beneficiaries of subsidiary
protection status, under the same conditions as
nationals.”
This follows
from amendment 20.
22)
Article 24(3) and (4) should be deleted.
This follows
from amendments 20 and 21.
23)
Article 24(5) should be amended as follows:
“…in
accordance with paragraph 1, refugees and…”
This follows
from amendment 20.
24)
Article 31(1) should be amended as follows:
“…the
integration of refugees and beneficiaries of subsidiary
protection status into the society…”
Access to
integration programmes should not be delayed for any person
with a recognised need for any form of international
protection.
25)
Article 31(2) should be deleted.
This follows
from amendment 25.
26)
A new Chapter Va should be added as follows:
Article
32a
On the date
set out in Article 37(1), Directive 2002/xx [on minimum
standards for reception conditions for asylum-seekers] shall
be applicable to persons requesting complementary protection.
Since the
concept of “complementary protection” would be
subject to the minimum standards set out in this Directive in
all Member States, persons applying for such status should be
treated the same way as asylum applicants as regards
reception conditions and procedures. However this
treatment must be subject to the condition that the standards
for subsidiary protection must not be lowered from the
standards in the Commission’s proposal.
Article
32b
On the date
set out in Article 37(1), Directive 2002/xx [on procedures
for asylum applications] shall be applicable to persons
requesting complementary protection.
See reasons
for proposed Article 32a.
Article
32c
On the date
set out in Article 37(1), Chapter [xx] of Directive 2002/xx [on
the right to family reunification] shall be applicable to
persons with complementary protection status.
Since the
concept of “complementary protection” would be
subject to the minimum standards set out in this Directive in
all Member States and the content of that status would be
nearly identical to Geneva Convention status, it is logical
that the rules for family reunion for refugees in the
proposed family reunion directive would also apply to person
with subsidiary protection status.
Article
32d
On the
date set out in Article 37(1), Directive 2002/xx [on freedom
to travel] shall be applicable to all persons with
complementary protection status.
Since the
concept of “complementary protection” would be
subject to the minimum standards set out in this Directive in
all Member States, there would no rationale for Member States
to continue granting a form of complementary protection
status which does not confer a corresponding freedom to
travel. In fact, there is no convincing reason for this
distinction at present, as ILPA has pointed out in its
response to the proposed Directive on freedom to travel.
Article 32e
1.
At the latest from the date set out in Article 37(1), Member
States shall consider all claims for complementary protection
status and Geneva Convention status in the context of a
single application.
2.
If an applicant meets the conditions for recognition of both
complementary protection status and Geneva Convention status,
a Member State shall recognise the applicant’s Geneva
Convention status.
Since the
concept of “complementary protection” would be
subject to the minimum standards set out in this Directive in
all Member States and the content of that status would be
nearly identical to Geneva Convention status, there is no
reason that Member States should have separate procedures for
determination of status. However, the ‘single
application’ system should always give preference to
refugee status, as third states give greater recognition to
Geneva Convention travel documents.
Article
32f
At the
latest from the date set out in Article 37(1), Member States
shall permit appeals from all persons whose complementary
protection status has been recognised in that Member State
who have been denied Geneva Convention refugee status. Articles
32, 33(1), 33(4), 34, and 38 of Directive 2002/xx [on asylum
procedures] shall apply.
Since third
states would still draw a distinction between complementary
protection and Geneva Convention status, it is still
necessary to permit persons with the former status to apply
for the latter status if their claim for such status is
unsuccessful. There is a cross-reference here to the
original version of the proposed asylum procedures directive
(COM (2000) 578) but this might have to be amended following
the Commission’s forthcoming revision of that proposal.
27)
A new Article 33(2) and (3) should be added as follows:
2.
Member States and the Commission shall also consult regularly
with the UNHCR and concerned non-governmental organisations
as regards the application of this Directive.
3.
The information exchanged pursuant to paragraphs 1 and 2
shall be made public.
It is
necessary to recognise the role of the UNHCR and NGOs as
regards refugee law, and to guarantee public scrutiny of the
consultations undertaken.