08 March 2001
1. The Commission's proposal is broadly very welcome. It is a comprehensive attempt to address the definition of refugee and subsidiary protection status and to define the content of that status, and generally aims at a high level of protection. It would therefore, subject to certain improvements discussed below, achieve the aim of reducing 'secondary movements' of asylum-seekers without damaging the Community's or Member States' human rights obligations. The UK's support for the proposal is therefore also very welcome.
2. The principal risk with this proposal is that some Member States might wish to reduce the minimum standards in the proposal to a lower level, or might lower their standards to the level set out in the Directive (if the standards are presently higher). The Commission should at the outset have suggested a 'standstill' clause which would prevent the Member States from reducing the standards applicable in these areas from the date at which the Directive is adopted. This will be particularly necessary if the minimum standards in the final version of this Directive fall below the level which the Commission has initially proposed. For the same reasons, it is unfortunate that the Commission did not propose 'standstill' clauses in the other asylum and migration proposals which it has made to date (in particular, the proposals on asylum procedures, reception conditions for asylum-seekers, family reunion, migration for employment or self-employment and long-term residents).
3. The biggest absence from this proposal is the lack of provisions concerning subsidiary protection other than rules on the definition and content of subsidiary protection status. The Commission has previously justified the absence of rules on procedures for determining such status, on reception conditions and on family reunion for persons with subsidiary protection, on the grounds that such matters could not be addressed until Member States had common rules on the definition of the status. Now that the Commission has proposed such common rules, there is no justification for waiting until the 'second stage' of the Common European Asylum System to address such issues. This proposal should therefore contain an additional chapter containing rules on such issues, placing persons with subsidiary protection status on an equal footing with recognised Convention refugees.
4. Similarly there is no longer any convincing need to wait until the second stage of the Common European Asylum System to address the relationship between Geneva Convention status and subsidiary protection status. This proposal should therefore have included provisions providing for an 'one-stop' application (the simplest and most efficient way of considering claims for either form of status) and a simplified procedure for appealing a decision to refuse Geneva Convention status if subsidiary protection status is recognised instead.
5. Several aspects of the specific details of the proposal could be improved. The concept of 'serious unjustified harm' implies that 'serious harm' could potentially be justified, and an alternative phrase should be used to indicate that, for example, criminal sanctions against a person are not necessarily tantamount to persecution on Geneva Convention grounds or a risk of treatment covered by Article 15 of this proposal.
6. The concept of 'internal protection' could be satisfied, according to proposed Article 9(3), include a concept of 'non-state protection'. This concept would be difficult to apply in practice, because non-state agents controlling some or all of state territory are not signatory to human rights treaties and have intrinsic problems guaranteeing safety upon the entire territory. These entities would not have been trusted with the job of administering a territory if there were not a risk or a reality of conflict in the relevant territory to begin with, and moreover their role is in principle transitional.
7. The 'cessation' clause applying to persons with subsidiary protection (Article 16) does not specify (as does Article 13(2)) that Member States have the burden of proof when applying the clause. Moreover, neither Article 13 nor Article 16 refer to the principle in the UNHCR Handbook on refugee status that cessation should not be applied to a person whose experiences in the country of origin were so traumatic that return would be psychologically impossible, regardless of any change in circumstances.
8. The distinctions suggested between persons with refugee status and subsidiary protection status are not convincingly defended. Since both categories of persons are fleeing human rights violations, there is no logical reason to have different rules on residence permits, access to employment and vocational training, or access to integration programmes.
9. The 'freedom of movement' clause (Article 30) only concerns movement within one Member State. At present, the residence permits which some Member States grant to beneficiaries of subsidiary protection are not recognised by the Schengen rules for the purpose of freedom to travel in the Schengen area. Similarly, the documents which the UK grants to persons with exceptional leave to remain are not necessarily recognised as valid travel documents by other Member States. This proposal should therefore have addressed in tandem the recognition of travel documents issued to persons with subsidiary protection (Article 23(2)) for both freedom to travel within the Schengen states and travel to and from the UK and Ireland and the Schengen states. Article 23(2) should also be amended to cover the situation where it would be dangerous to attempt to obtain a national passport; the current wording appears to cover only those cases where it would be legally or physically impossible to obtain one.
10. Finally, the proposal does not address the status of persons who would be excluded from both Convention refugee status and subsidiary protection status on grounds of their activities, but who still have a claim under international human rights instruments (such as the ECHR and the UN Convention Against Torture) to protection from removal to their country of origin (Articles 14 and 17). This absence could be significant if Member States take a wide view of the application of the 'exclusion' clauses following the attacks on the United States. It would have been preferable either to address the status of such persons in this proposal, indicating what status should be extended to such persons, or to indicate that a separate proposal on such persons would be made in the near future.
Prepared by Steve Peers, Reader in Law, Essex University
Statewatch, 8 March 2001
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