The Alternative Scoreboard for
EU Immigration and Asylum Law:
Human Rights Basic Principles
ILPA Response to
the European Commissions Proposal for a Directive on:
MINIMUM STANDARDS OF TEMPORARY PROTECTION
IN THE EVENT OF A MASS INFLUX
On 25 May 2000 the European Commission introduced a proposal for a Council Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving and bearing the consequences thereof (COM(2000)303 final). This is not the first time the European Commission has made a proposal in the field or the first time ILPA has responded. In 1997 the Commission proposed a Joint Action on the same subject, to which ILPA responded extensively both when the matter was considered by the UKs House of Lords Committee on the European Communities and in its European Updates. The previous proposal was the subject of much discussion in the Council, and the tying together of the responsibility to accept displaced persons with the concept of sharing the consequences was particularly contentious.
Now in the context of the new powers and obligations of the Community in this field, the Commission has presented a new proposal. The previous one would have had consequences for each Member State depending on the legal effect of international agreements within the national legal system. This proposal, if adopted will be binding on the Member States within their national legal system, though the UK will have to decide whether to exercise its opt out and either accept this binding effect or refuse to participate.
In accordance with our practice of assessing proposals in Title IV EC relating to immigration and asylum on our scoreboard we present our analysis and assessment of the proposal.
Overview of the Score for the Temporary Protection Proposal
1. Compliance with the European Convention on Human Rights: 3/10
2. Compliance with other international treaties: 4/10
3. Compliance with principles of EU migration and asylum law: 6/10
4. Safeguarding and strengthening rights at national level: 6/10
Explanation of marking:
For the reasons set out below relating to international obligations, the proposal does not specify that Article 3 ECHR applies to persons denied temporary protection status pursuant to Article 29 of the proposal. It must make clear explicitly that a non-refoulement obligation applies to all persons, even those denied temporary protection status pursuant to Article 29.
The proposal is also defective as pointed out in the same section, because it fails to give full effect to Article 8 ECHR rights to family reunion and formation as applied to all persons facing a risk under Article 3 ECHR, who cannot therefore enjoy family rights in the country of origin.
Additionally the very limited references to remedies in the proposal would breach Article 13 ECHR as it relates to rights guaranteed under the convention, and more broadly to all rights guaranteed under national law by way of the directive, once Protocol 12 to the ECHR enters into force. This would also breach the broader EC law principle of effective remedies as defined by the ECJ and included in the recently-agreed EU Human Rights Charter (see remedies section below).
The proposal risks undermining the application of the Geneva Convention because it allows for suspension of Convention claims for a full two years without consideration (see remedies section below). It also fails to take full account of situations in the state of origin after termination of the temporary protection regime (see remedies section below) and the safeguards after termination of the regime are far weaker than Article 1.C of the Geneva Convention (see international obligations section below). Also, because it allows Member States to transfer beneficiaries of temporary protection to asylum-seeker status if they make a claim for recognition of their status as a refugee under the Geneva Convention, it would seriously deter beneficiaries from making such claims in practice.
The proposal gives a high standard of protection to some extent comparable to that of recognised refugees, but falls short in several respects (see international obligations section below). Additionally it does not give rights of freedom to travel (see section on consequences for the coherence of Community law and policy below).
The proposal raises status as compared with national systems and creates additional legal certainty, but since it does not preclude the creation of national schemes in future or regulate them if created, it still leaves the risk of national regimes being created with limited rights for applicants.
Purpose of the Directive
The Explanatory Memorandum to the proposed Directive stresses that the Directive is aimed at ensuring that domestic asylum determination procedures do not collapse under the pressures imposed by a mass influx of persons and to promote a balance of effort between Member States in giving that protection. Another means of ensuring that protection is given to such groups without causing undue stress on domestic asylum determination procedures would be for national authorities to grant, in appropriate situations, refugee status to all persons fleeing from a particular country (subject to the exclusion clauses) as happens in many African countries. However domestic authorities might find such a move politically unpalatable and might consider that it would function as an immigration pull factor. The proposed Directive takes the immediate protection of persons who form part of the mass influx within the remit of the EU Council, rather than leaving this entirely to domestic authorities to determine.
The Directive and International Obligations
The Commissions proposed Directive, once adopted, will constitute the first specific binding legal obligations concerning the grant of temporary protection by states and the rights that such a status affords the persons affected. However, there are already a number of general international refugee and human rights standards of relevance to the concept of temporary protection. Relevant binding international refugee standards covering the scope of the proposed Directive are:
Although the Geneva Convention is most important because it has been accepted by all EU Member States, the other regional instruments should not be ignored in assessing the Commissions proposal, particularly as the proposed Directives definition of "displaced persons from third countries who are unable to return to their country of origin" (Art. 2(c)) clearly has its origins in the broader definition of "refugee" in these instruments.
The provisions of the Directive must also comply with universal and regional international human rights treaties, in particular
The following "soft law" standards, drafted by the UNHCR Executive Committee and the Council of Europe are also especially relevant:
The UNHCR EXCOM Conclusions are sensitive to the problems created for states by large-scale influxes and support the grant of temporary protection status provided that this is recognised as an exceptional measure and does not undermine the fundamental principle of non-refoulement. The Conclusions also underscore the need of persons granted temporary protection to enjoy treatment in accordance with basic humanitarian standards.
The contours of the recent Recommendation of the Council of Europes Committee of Ministers are broadly similar in content to the Commissions proposed Directive, although the Recommendation is far more general particularly in terms of the temporary protection period for which no time-limit is set (compare here with the Commissions proposal and also Parliamentary Assembly Recommendation 1348 (1997) which outline a maximum period of two years) and the lack of any guidance on the problem of defining a "mass influx" (see below).
Compliance with International Obligations
The Commission is at pains to underline that the Directive is to be compatible with Member States international obligations as regards refugees and must not "prejudge the recognition of refugee status" under the Geneva Convention (see Preamble, paragraph 10). Access to the asylum procedure is to be guaranteed and is to be granted no later than the end of the temporary protection period (Article 16), which cannot exceed a maximum of two years (Article 4). Member States retain the discretion whether or not to permit asylum applications to be made during the temporary protection period. However, if persons are permitted to apply for asylum, a positive provision is Article 18 stipulating that the persons concerned may continue to enjoy temporary protection in the event of a negative decision until the end of the temporary protection period (see further below regarding the proposed time period).
Whether the concept of temporary protection undermines the Geneva Convention and access to asylum procedures would seem to depend in part on how frequently the Council would be willing to establish a situation of "mass influx" (see below). A possible negative scenario is where Member States in the Council would be prepared to establish temporary protection quite readily with a view to returning persons to countries of origin within the maximum temporary protection period of two years while at the same time exercising their discretion under the Directive not to grant access to the domestic asylum procedure during this period or where the fact that a person enjoys temporary protection and is thus protected from refoulement limits their ability to access full refugee status.
The provisions referring to compelling humanitarian reasons for a person enjoying temporary protection not returning to their country of origin refer to cases in which return is impossible or unrealistic(Art 20) and thus appear to be narrower than the Cessation Clauses (Art 1C) of the Geneva Convention which clearly focus on the effect of return on the individual and the references in the UNHCR Handbook which refer to a person not being excluded from refugee status where it would be unreasonable to expect him/her to relocate within their own country. The change of focus from the individual appreciation to a state one is problematic.
Two provisions of the Geneva Convention which are noticeably absent in the proposed Directive are: 1. the provisions as to naturalisation and 2. the provisions as to free movement within the host country. While the first is consistent with a proposal which aims to give temporary protection the absence of the second raises questions - is it proposed that Member States should be allowed to limit the free movement of persons enjoying temporary protection within their territory? The right of free movement within a state is provided for in Protocol 4 of the ECHR, but this protocol has not been ratified by all States Parties, thus the provision (Art 3.2) that rights under ECHR should apply to persons enjoying temporary protection will not be a full remedy for this omission (see further below).
International human rights standards
On the whole, the economic and social rights afforded displaced persons with temporary protection status in the Directive are extensive and are broadly compatible with those granted to recognised refugees. In this regard, it should be noted that many EU Member States in practice grant recognised refugees more favourable treatment than the minimum levels of economic and social treatment specified in the Geneva Convention. The scope of most of these rights protections would therefore also appear to comply with other international human rights standards, particularly those enumerated in the ICESCR. An exception, however, is the right to medical care, which may be limited in the proposed Directive to "emergency care and the treatment of illness" (Article 11(2)). In this respect, the recent recommendation of the Council of Europes Committee of Ministers appears broader by stating that persons benefiting from temporary protection should have access, at least, to "appropriate health care" (para. 3). EXCOM Conclusion No. 22 also refers to the need to provide "basic sanitary and health facilities" (para. B.1.(c)). Moreover the provisions concerning special medical or other assistance to persons with special needs (Art 11) refer to torture, rape ... sexual violence in a manner which fails to acknowledge the jurisprudence of ECHR (Aydin v Turkey) and other international tribunals that rape will or may amount to torture; a different formulation of this provision might be torture (including rape) ... sexual violence.
The family reunion obligation (Article 13) is inconsistent with international human rights standards, particularly Articles 8 and 12 ECHR. It only applies to the reunion of families already established in the country of origin and not to family formation or reunion with family members lawfully resident in third countries (see pp.18-19 of the Commentary to the proposal and further below).
The proposed Directive devotes insufficient attention to Article 3 ECHR and the accompanying jurisprudence of the European Court of Human Rights. In particular, the Chahal,v UK and Ahmed v Austria decisions underlining the absolute nature of Article 3 are not taken into account in Article 29 of the draft Directive concerned with the grounds upon which Member States may exclude persons from temporary protection.
Problem of Defining Mass Influx
The Directive defines "mass influx" as "arrival in the Community of a large number of displaced persons from third countries who are unable to return to their country of origin, who come from a specific country or geographic area" (Article 2(d)). The Commentary provides some further assistance in this respect (p.14), but there is no detailed guidance as to what is meant by "large numbers". Would a significant arrival of displaced persons in only one Member State count as a "mass influx"? If so, should any account be taken of the size of the particular country affected? Similar concerns were raised by ILPA in its response to the Commissions 1997 draft joint action on temporary protection. However, even less guidance is provided by the existing Council of Europe and UNHCR EXCOM soft law standards. For example, the recent recommendation of the Council of Europes Committee of Ministers merely speaks of an "unexpected, massive and sudden influx" (para. 7) whereas EXCOM Conclusions No. 19 and 22 refer to a "large-scale influx" (paras. (a) and I.1 respectively).
As noted above, it is rather unclear in what circumstances the proposed Directive would be used. The Explanatory Memorandum gives examples of two countries/regions from which there have been mass influxes: Kosovo and former Republic of Yugoslavia more generally. However, in relation to Kosovo an immediate problem was not mass influx into the EU, but the refusal of EU nations to grant entry to these groups. The proposed Directive makes no reference to entry for temporary protection - not even to the extent of the OAU Convention which states that Member States shall use best endeavours ... to receive refugees. Moreover it is noticeable that the only examples given of mass influxes are from European countries - there is no reference to persons from countries such as Sri Lanka, Sudan and China from which many persons have fled into the EU in recent years.
Lessons to be learnt from the UK experience with temporary protection
The UK has granted forms of temporary protection to nationals of a large number of countries/regions in recent years including: Kosovo, FRY, Somalia and Sierra Leone. In January - November 1999 there were a total of 10,670 applications for asylum from Federal Republic of Yugoslavia (which would include Kosovo), but this was closely followed by the applications from Somalia which numbered 7,110. In general the protection granted to these persons - as exceptional leave to remain - has provided these persons with fewer rights than persons with full refugee status and exceptional leave to remain is only granted after an application for asylum has been considered and rejected. In the case of the Somalis the way in which temporary protection was granted resulted in years of protracted litigation through the courts and much misery to those involved. Yet the mass influx from Kosovo was into Macedonia and Albania not into EU states directly. Similarly, the mass influx relating to Somalia was into Kenya, Ethiopia and Djibouti not the EU. The proposed Directive is to be welcomed for providing for rights on a broadly equal terms to those recognised as refugees. In relation to persons from Sierra Leone after long periods of adjourning their asylum appeals, these persons were finally granted four years exceptional leave to remain when it became apparent that returning them to their country of origin was impossible. This group will include some persons who, as war refugees, would not be strictly entitled to protection under the Refugee Convention however, in respect of those persons who do have well founded refugee claims the existence of four years temporary protection has barred their effective access to refugee status on the basis that they are not in danger of refoulement. The proposed Directive is to be welcomed for stressing that protection under the Directive should not prejudice well founded refugee claims - it must be ensured that this is the case in practice.
Access to the asylum procedure
Whilst ILPA acknowledges that the proposal does guarantee a person granted temporary protection access to the procedure for determining refugee status if they so wish, real concern arises concerning the ability of Member States to suspend access until the end of the temporary protection period. This, in fact, could lead to the nullification of the guarantee of access to the asylum procedure for in practice ILPA considers that most Member States will suspend access to the asylum procedure until the end of the temporary protection period. In many cases the conditions which gave rise to the individuals leaving their countries of origin and indeed being granted temporary protection would have changed or become more complex over the course of time. That complexity will make it more difficult for the individuals to establish that they are 1951 Convention refugees when it would have been relatively simple for them to so establish when they first fled their country of origin.
Taking for instance the case of ethnic Albanians from Kosovo, it is beyond doubt that in 1997/8 ethnic Albanians from Kosovo were prima facie 1951 Convention refugees. However the application of the Humanitarian Evacuation Programme and the general suspension of the determination of asylum claims until recently in the United Kingdom has lead to a great deal of uncertainty and confusion. There are individuals who can more readily establish a claim for refugee status, for instance where they refused to assist the KLA and now face persecution at their hands. However for the majority their claims are more complicated. The arguments revolve around analogies to the cessation clauses regarding which party (either applicant or decision maker) has to prove that the circumstances which gave rise to the individual fleeing Kosovo subsist and around effectiveness of protection offered by KFOR in a non-autonomous region of a country where in general ethnic Albanians would not be welcome.
The complexity is further added to because for some individuals returning to a region which has been almost entirely burnt to the ground is more practicable than others. What of, for instance, the children who will have no schools to return to or the sick who will have no functioning hospitals to return to not to mention inhospitable living conditions and lack of housing and sanitation?
As has been pointed out in the past by UNHCR and others, 1951 Convention refugee status was always itself intended to be "temporary" in the sense that if the conditions really do improve to such an extent that it can be demonstrated that the circumstances which lead to the person seeking international protection no longer subsist, that person may be returnable. The fact that in practical terms this does not happen because of the integration of refugees into the Member States' communities should not detract from the fact that any temporary protection scheme should ensure that 1951 Convention refugees are recognised as such or at least have the opportunity to be recognised and must not be a mechanism for excluding 1951 Convention refugees from the protection regime that international law provides for.
It is of great concern to ILPA in this regard that under the Commission's proposal access criteria and mechanisms are left to the Member States' discretion. In the light of a general move towards positive harmonisation of asylum and immigration policies in the European Union, it is unnecessary and undesirable that Member States' should be afforded such a wide discretion in this area.
Article 4 of the proposed Directive sets out the normal duration and maximum duration of temporary protection. Normal duration is for one year and it may be extended by six monthly periods for a further year. The maximum duration for temporary protection may not exceed two years in total. Despite this very clear limitation on temporary protection it is unclear what will happen at the end of this two year period to people who have been granted protection and who cannot be returned to their countries of origin. ILPA is of the opinion that people granted status under the temporary protection measures should be allowed access to the asylum system at the latest within one year of the declaration of a mass influx and the corresponding temporary protection measures. The rights granted under temporary protection should remain in force at the end of the temporary protection period until enforcement action is taken against an individual and should not cease immediately at the point of withdrawal of temporary protection measures.
Article 5 sets out how temporary protection will be implemented. The Council is to act by qualified majority on the proposals from the Commission. However, there is no time limit setting out how long after the proposal of the Commission, the Council has to vote. In addition, although the Member States can make requests which are to be examined by the Commission, there is no time limit set out in which the Commission must act. To ensure that mass influxes are recognised quickly and the European Union is able to react appropriately, it is vital that defining the mass influx becomes a matter of urgency and that tight time limits are set accordingly. ILPA suggests that the Council vote on a recommendation by the Commission within three months. A request by Member States to the Commission should be submitted to the Council within one month if the Commission finds it appropriate.
Another area which the Directive does not address are the time limits for Member States to carry out the obligations set out in Chapter 3. For example, there is no time limit for the granting of residence permits or documents showing that people granted temporary protection have access to employment. Parallels should be drawn with Directive 64/221 which clearly sets out that Member States should take a decision about the issuing of a residence permit as soon as possible. ILPA believes the time limit should be three months from the date of an application for a permit. This relatively tight deadline should be adhered to in order to ensure an effective right, given that the maximum duration of temporary protection has been set at two years.
Free movement of persons
The Proposed Directive does not address the issue of free movement of persons enjoying temporary protection. It appears from the Explanatory Memorandum (paragraph 5.6) that there are two reasons for this.
Firstly, the Commission are of the view that the existing rules governing the taking back of persons holding residence permits in one Member State and residing unlawfully in another Member State must be simply applicable. Secondly, the Commission is to present proposals for measures concerning free movement of third country nationals in the Member States and the conditions governing them in due course.
The first point does not address the issue of free movement at all, nor does it adequately explain why the question of free movement is not specifically provided for in the proposal. Dealing with those unlawfully present in a Member State does not create any free movement rights. One of the objectives on migration policy identified by the European Council of Tampere in October 1999 was that concrete steps should be taken with a view to improving the legal situation of legally resident third country nationals and their families. The opportunity to further this objective has not been seized in respect of this Proposed Directive.
The second reason simply perpetuates further delay. The Vienna Action Plan (December 1998) identified measures to be implemented within 5 years including the determination of the rights and conditions under which third countries nationals who are legally resident in a Member State may reside in other Member States. The Tampere European Council (October 1999) decided to adopt legislation approximating national law on initial admission of third country nationals as soon as possible, but failed to speed up the process of adopting legislation concerning free movement of third country nationals. In response to the Tampere Conclusions ILPA urged the Council to adopt the Commissions proposal on equal treatment for social security for resident third country nationals and the Commissions proposals on facilitation of resident third country nationals rights to provide services in other Member States without further delay.
The objectives of the Commission proposal set out in the Explanatory Memorandum include:
Therefore, the failure to provide a framework for free movement of persons enjoying temporary protection is inconsistent with these aims.
Consequences for the coherence of Community law and policy
The establishment of a single market requires the removal of barriers for the free movement of persons. The failure to address free movement rights to those granted temporary protection means that they are prevented from cross border movement and are excluded from the internal market.
The free movement rights of third country nationals are limited to a period of three months under the Schengen acquis. Third country nationals have to satisfy several conditions in order to move freely for that short period. The condition to have "sufficient means" or to be "in a position to acquire such means legally" will be difficult for someone granted temporary protection to satisfy. Article 10 of the Proposed Directive only gives access to the employment on equal terms as a refugee in the Member States granting temporary protection.
The residence authorisation is limited to the State granting temporary protection (Article 26) and the Schengen acquis does not grant a freedom of residence in the Schengen zone. Therefore, without a right of residence, it is unlikely that a third country national will be able to secure employment in another Member State. In any event the difficulties in obtaining employment for such a short period cannot be ignored.
Residence is determined at national level. Disparity in the residence authorisation (Article 2 of Proposed Directive) is likely to result in discrimination and inequality in treatment of those granted temporary protection. For example, in the UK a residence authorisation for asylum seekers is "temporary admission" which does not amount to a right to enter the UK and lapses if the person leaves the UK. For the purposes of the Schengen Convention temporary admission does not amount to a right of residence and therefore a third country national will require a visa. Further, persons granted temporary protection in those countries that are not parties to the Schengen Agreements will have to obtain visas to travel in the Schengen zone. By the Council decision of May 2000, this part of the Schengen acquis has now been incorporated into the EC Treaty under Article 62 EC.
Delay in obtaining travel documents or residence permits will prevent third country nationals from obtaining visas and/or travelling in the Schengen area. On entry into the Schengen area from non-contracting countries, third country nationals will be subject to checks under Article 6 Schengen Convention. ILPA suggests that persons granted temporary protection should at least have the freedom to circulate within the Member States, particularly since they may wish to visit family members in other Member States. A minimum requirement is that the document, which is issued to a person granted temporary protection, is a specified document under Article 62(3) EC ie the person will be able to meet the "Schengen" criteria and have a "Schengen" right to freedom of travel. For those outside the Schengen area (eg the UK) freedom of travel should be assured to and from the Schengen area.
A person enjoying temporary protection in one Member State is at risk of being expelled from the Schengen area if they reside illegally in another Member State. This is contrary to the purpose of temporary protection and may lead to breaches of the ECHR and/or the Geneva Convention.
The Presidency conclusions issued following the Tampere European Council meeting October 1999 have not been addressed, in particular:
The absence of legislation at Community level concerning the rights of third country nationals means that no rights of movement would exist beyond the two-year period which is a major barrier to integration. Also the two-year time limit for temporary protection means that those benefiting from the Proposed Directive are unlikely to be considered long-term residents and will therefore be outside the proposed legislation on the equal status of long-term residents. (See also The Amsterdam Proposals published in March 2000 by ILPA and MPG and "The Amsterdam Proposals or how to influence policy debates on asylum and immigration" April 2000 edited by Jan Niessen and Susan Rowlands.)
The failure specifically to provide for free movement rights for persons enjoying temporary protections is a significant obstacle to the free movement of persons within the Community. It is inconsistent with the aim for a uniform asylum status valid throughout the Union and the need for measures granting immigrants and refugees rights and obligations comparable with EU nationals, promoting equality of treatment and eliminating discrimination.
The proposal refers only to the conditions for maintaining an existing family unit for the duration of the temporary protection. Although the language of Article 13 (1) seems to place a clear obligation on Member States ("shall authorise the entry and residence") the explanatory memorandum states that the proposal specifically excludes "right" to family reunification, such as that granted in the family reunion proposal. This is justified on the basis of the temporary nature of the situation.
Definition of Family Members
The broad definition of family members given in the proposal is to be welcomed. The definition covers both spouses and unmarried partners in a stable relationship where unmarried partners have equal rights to married couples in the receiving Member State. This reflects the proposed amendments to Regulation 1612/68 and is to be welcomed on the basis of providing rights comparable to EU citizens contained in the Tampere Proposals. A difficulty may arise with proving co-habitation, particularly where family members are coming from countries where official correspondence and other such documents are unusual. However, Article 13 (4) gives a duty to Member States to take into account of all facts and specific circumstances in assessing the validity of the evidence submitted, which will hopefully cover problems with obtaining official documentation.
With regard to children, the proposals include both legitimate and illegitimate children, whether or not they are minors and who must be unmarried and dependent. Children who are not minors, and who are not dependent, must demonstrate that they are objectively unable to meet their own needs or cannot do so because of their state of health. The proposal seems to fail to recognise that overage children, particularly women, may live with their family for a considerable time although they are not in poor health and would be able or are already able to meet their own needs. In addition, the requirement for children to be unmarried fails to take into account of cultural differences in many countries from which persons are displaced, where married children and their spouses can and do live with the family for a considerable time.
Finally, Paragraph 13 (1) (c) refers to other family members who are dependent on the other members of the family. The broad definition, which to some extent reflects on Article 10 (2) of Regulation 1612/68, is to be welcomed.
Family reunion is specifically excluded where family members are lawfully resident in a third state. This would include even the position where the family members are in a third state as visitors for very short periods. This leads to the rather ridiculous situation where these family members would have to wait until their lawful residence had expired (and therefore become illegal) before the principal could apply for family reunion. Moreover, it cannot be guaranteed that the third state in question would authorise reunion of the family; in such cases, Article 8 ECHR will be infringed because there is no possibility of enjoyment of family life except in the Member State in question.
The possibility of family members transferring temporary protection from one Member State to another where they wish to be reunited is to be welcomed (Article 13 (5)). However, the position of those lawfully resident in another Member State in a temporary capacity (for example as students nearing the end of their studies) would not seem to be covered by this article, which refers to those already granted temporary protection.
Finally, the obligation for Member States to determine the application as quickly as possible is welcomed. However, as temporary protection can only be given for a maximum of two years, it is vital for any family reunion application to be dealt with extremely quickly. A maximum period of three months should be set down within which to deal with the application. The remedies against breach of this time limit would be pointless in view of the length of judicial proceedings, so it is also suggested that failure to deal with the application within the given time should lead to the automatic grant of a visa and entry and residence authorisation.
The Commission's proposal is notable in its lack of a general remedies clause and this again causes deep concern to ILPA. There will inevitably be individuals or groups of individuals who for whatever reason are excluded from a temporary protection scheme and who believe that such exclusion is unfair or wrong. It is highly undesirable for there to be no procedure by which a person who is denied temporary protection can challenge or question the decision to deny him or her temporary protection. There may be individuals who do fit with the protection mandate but who have erroneously been excluded from protection, for instance because of a dispute concerning ethnicity. To return to the example of the ethnic Albanians from Kosovo it is ILPA's experience that a number of such individuals have been denied refugee status or temporary protection following an allegation that the individual was in fact not from Kosovo. In many cases a challenge to that allegation has lead to it being dropped and/or acknowledged that the allegation was founded on suspicion rather than fact.
Not only is it undesirable for persons denied protection not to have access to a remedies procedure, it is in contravention of fundamental principles of international human rights law. Article 13 of the European Convention on Human Rights provides that in respect of the rights protected by the Convention, an individual must have an effective remedy for any breach. Arguably many of the persons who would be envisaged by a temporary protection scheme would have arguable claims under Articles 3 and 8 of the European Convention on Human Rights if they were returned to their country of origin and that Convention commands that they be afforded accessible and effective remedies in respect of any arguable breach.
In ILPA's view a remedies clause should include remedies against the failure to provide temporary protection, the failure to recognise family reunion rights and the failure to issue a recognised individual with the documentation necessary to access social security and other welfare benefits within a reasonable period of time. Any remedy should provide for recourse to an independent judicial body in order for that remedy to be real and effective.
Conclusions and Proposed Amendments
For the reasons set out above we believe that the proposal needs to be revised substantially to meet the objectives of the Union to provide real protection for displaced persons who need it. We include here the proposed amendments that we think would assist to make the draft acceptable from the perspective of the Member States human rights obligations and stated objectives.
1) A new Article 3a should be added as follows:
(1) No Member State shall expel or return (refouler) a person falling within the scope of the Decision established pursuant to Article 5, or any national extension of the scope of that Decision pursuant to Article 7, or any national scheme established pursuant to Article 3b, or a family member of such a person, in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion, or where he or she faces a real risk of torture or inhuman or degrading treatment.
(2) No Member State shall expel or return (refouler) a person referred to in paragraph 1 to a third state which might effect an expulsion or return as prohibited in paragraph 1.
This amendment would apply the non-refoulement principle found in the Geneva Convention and in Article 3 ECHR and Article 3 UNCAT fully and explicitly to any national or Community temporary protection scheme.
2) A new Article 3b should be added:
(1) Member States may establish national temporary protection schemes for persons not falling within the scope of a Community scheme established pursuant to Article 5 or a national extension of a Community scheme adopted pursuant to Article 7, where a mass influx of persons pursuant to Article 2(d) has occurred but that influx affects fewer than one-third of Member States.
(2) Any national schemes adopted pursuant to paragraph 1 shall be subject to Article 4, Chapters III to V and Chapter VII of this Directive.
(3) Where more than one Member State establishes a national scheme pursuant to paragraph 1, beneficiaries of such schemes shall not be transferred between Member States without their consent.
In order to avoid distortions to asylum applications it is also necessary to extend the key rules in this Directive to any national temporary protection schemes. Otherwise it will be tempting for Member States to vote against establishment of a Community scheme pursuant to the Directive with the knowledge that they will then be free to establish national schemes with lower standards for beneficiaries. However, where a mass influx only affects a small number of Member States it is appropriate to allow those Member States to establish a national regime. Paragraph (1) therefore authorises national schemes, under the condition that a mass influx has in fact occurred and affects relatively few Member States. Paragraphs (2) and (3) apply the main provisions of this Directive to such national schemes; paragraph (3) is based on the principle underlying Article 26(1) of the Directive.
3) A new line should be inserted to become the second line of Article 5(1) as follows:
The Council shall decide on the Commission proposal within three months of receiving that proposal, and the Commission shall make a decision on any request by a Member State to submit a proposal to the Council within one month.
This amendment would impose deadlines on the institutions, which is necessary in light of the urgency of the issue.
4) A new line should be inserted at the end of Article 7 as follows:
Any such extension shall terminate at the same time as the Council Decision is terminated and shall be governed by the same rules as the Council Decision.
This wording would make it clear that any national extension is subject to the same rules regarding termination, rights for beneficiaries, and treatment of persons after termination of the Decision, for the reasons set out above (see proposed amendment 2).
5) A new line should be inserted at the end of Article 8(1) as follows:
Such permits shall be issued or refused as soon as possible and in any event not later than six months from the date of application for the permit.
This amendment adapts Article 5(1) of Directive 64/221, applying to Community nationals and their family members who move within the Community. It is appropriate to extend such rules to persons benefiting from a temporary protection regime because of the practical importance of residence permits and other documents for such persons.
6) A new Article 8(4) should be added as follows:
Member States shall allow beneficiaries of temporary protection entry onto their territory.
Without a right of entry onto the territory, the principle of temporary protection status is meaningless. Such a right is the necessary corollary of temporary protection status, and should be provided for expressly.
7) A new Article 8a should be added as follows:
(1) Beneficiaries of temporary protection shall have the right to move freely within the territory of the Member State which has recognised their status, subject only to restrictions justified on the grounds of public policy, public security and public health as defined by Directive 64/221.
(2) Beneficiaries of temporary protection shall have the freedom to travel within the territory of the Member States during a period of up to three months, subject to the conditions set out in Title II of the Schengen Convention. Member States shall ensure that the documents issued pursuant to Article 8(1) may be used for this purpose.
(3) Paragraph 2 shall also apply to the United Kingdom and Ireland.
Beneficiaries of temporary protection should be allowed to move freely within a Member State, subject only to the rules applying to EC nationals. This right is guaranteed by the Fourth Protocol of the ECHR and other international human rights instruments. In addition, beneficiaries of temporary protection should not be excluded from the core right to freedom to cross internal borders set out in Article 14 EC and implemented by the Schengen Convention. In our view, the UK and Ireland should opt in to all aspects of the Schengen Convention, upon agreement upon necessary reforms to the Schengen rules (see proposed Directive 2000/04 in The Amsterdam Proposals). In any event, even if they still decline to opt into all such rules, there will be sufficient harmonisation of law in the field of temporary protection if this Directive is adopted to justify extending freedom to travel to beneficiaries of temporary protection regimes to and from the UK and Ireland and other Member States.
8) The first line of Article 10 should be amended as follows:
...under the same conditions as recognised refugees.
This would correct what appears to be a typographical error in the proposal.
9) Article 13(1)(b) should be amended as follows:
or of the applicant, on condition that they resided with the couple or the applicant in the country of origin and without distinction
To take account of cultural difference, all children resident with their parents should be admitted to join them.
10) Article 13(5) should be amended as follows:
enjoy temporary protection or are otherwise resident or present in different Member States, the Member States shall
The Directive should ensure family unity for all persons in the Community where one person enjoys temporary protection status, regardless of the status of the other family members. This would avoid a needless wait for a family member to apply and obtain temporary protection status before being reunited.
11) Two new lines should be added to the end of Article 13(6) as follows:
Member States shall make a decision on the application within three months at the latest. If an application is still outstanding at this date, Member States shall issue a visa and entry and residence authorisation to the family member(s) in question.
Because of the short period of temporary protection, decisions must be subject to a definite time limit and an effective remedy.
12) A new Article 13(8) should be added as follows:
Chapters III to V, Article 26 and Chapter VIII shall apply to family members admitted pursuant to this Article.
Community law extends the rights conferred on migrants to members of their families. This proposal should expressly do the same.
13) A new Article 13(9) should be added as follows:
The provisions of this Article shall also apply to the formation of families and to family members residing in third countries where it is not possible for the family to live together except in the territory of the Member State where the beneficiary of temporary protection resides. The definition of family members in paragraph 1 shall apply.
This amendment is necessary to take account of the jurisprudence of the European Court of Human Rights, according to which Article 8 ECHR obliges Member States to admit family members if it is impossible to live as a family in another country.
14) Article 16(1) should be amended as follows:
...to the procedure for recognising refugee status and/or the status of complementary [subsidiary] protection if they so wish.
This amendment recognises first, in accordance with the UNHCR Handbook, that Member States do not determine refugee status; they recognise that such status already exists. Second, the amendment recognises that many Member States also allow claims to be made for determination of complementary (subsidiary) protection status, alongside or simultaneously with claims for Geneva Convention refugee status.
15) New Articles 16(1a) and 16(1b) should be inserted as follows:
(1a) Member States shall not suspend consideration of claims for determining refugee status and/or the status of complementary [subsidiary] protection during the period of temporary protection.
(1b) By way of derogation from paragraph 1a, a Member State may suspend for six months the consideration of claims for determining refugee status and/or the status of complementary [subsidiary] protection during the period of temporary protection for persons falling within the scope of the Decision taken pursuant to Article 5 or its extension pursuant to Article 7, where there is objective evidence that the asylum system in that Member State cannot process the influx without significant adverse effects for its efficient operation. A Member State may suspend such consideration for one additional further period of six months, on the same grounds, after obtaining the approval of the Commission.
These amendments make clear that suspension of claims for refugee status must be the exception, not the rule. The threshold for proving that consideration of claims must be suspended must therefore be higher than the threshold for deciding on the existence of mass influx (see Article 2(a)), which only refers to the risk of adverse effects. Because Member States should be able to adjust their asylum systems to an increased number of claims within a reasonable period, they should be allowed to suspend consideration of claims for a maximum of only six months, with a possible further extension of six months with Commission approval.
16) Article 16(2) should be amended as follows:
Without prejudice to paragraphs 1a and 1b, access shall be granted...
This amendment is consequential to amendment 15.
17) Article 18(1) should be amended as follows:
The status of temporary protection shall continue while applications are under consideration.
If persons enjoying temporary protection status are reduced to the status of asylum-seekers (pending Community legislation which should improve that status, as recommended in proposed Directive 2000/1b in The Amsterdam Proposals) there will be a huge deterrent to applying for Convention refugee status. This should not be authorised by Community law.
18) Article 18(2) should be amended as follows:
...has been examined, the refugee status or complementary protection status of a person eligible for temporary protection is not recognised, the Member States shall...
Refugee status is recognised, not granted (see amendment 14).
19) Article 19 should be replaced as follows:
(1) When the temporary protection ends, the persons previously covered by such a scheme shall either:
a) return voluntarily to the country of origin, in accordance with Article 21; or
b) resume or make an application for recognition of refugee status or complementary protection status. The relevant Community or national rules governing responsibility for considering a claim for refugee status, the procedures for considering claims and the definition of refugee status or complementary protection status shall apply.
(2) Until the voluntary return referred to in paragraph 1(a) is complete or the application referred to in Article 1(b) is definitively rejected and an expulsion order pursuant to that decision is enforced, the persons concerned shall continue to enjoy the rights set out in Chapter III.
It is highly objectionable to return all persons subject to the temporary protection scheme to the status of subsidiary protection, asylum-seeker or illegal migrant upon termination of the temporary protection scheme, as Article 19 implies, unless the Community first adopts legislation providing for adequate protection of such groups (see proposed Directives 2000/1f, 2000/1b and 2000/6 in The Amsterdam Proposals). This is because such status under national law gives persons a marginal level of rights in many cases. Therefore following termination of a temporary protection scheme, its beneficiaries should continue to be governed by the substantive rights in Chapter III until they leave the country voluntarily or until an expulsion order following definitive rejection of an asylum claim is enforced.
20) Article 20 should be replaced as follows:
If a person benefiting from a temporary protection regime objects to returning to the country of origin following termination of the relevant scheme, Member States shall determine in an objective and verifiable manner and on an individual basis whether or not there are reasons for concluding that such person should return, given the circumstances prevailing in the country of origin at that time.
Where the housing, economy, schools and health care in a country of origin giving rise to a mass influx of persons have in large part been damaged or destroyed, there should be a careful consideration of the appropriateness of return in each particular case. The proposed Directive wrongly presumes that persons should return unless there are extreme circumstances which would make it impossible or unrealistic, rather than requiring a more balanced test to determine whether persons should leave. The proposed change is based in part on the UNHCR Handbook comments on Article 1.C of the Geneva Convention (concerning cessation of Geneva Convention refugee status due to change in circumstances in the country of origin), although it does not go so far as to require Member States to show compelling reasons why a person should leave.
21) Article 21(3) should be deleted.
In place of discretionary continuation of rights under Chapter III of the Directive for one class of former beneficiaries, all persons formerly covered by the regime should continue to enjoy such rights automatically (see amendment 20).
22) Article 27 should be deleted.
The entirety of this proposal should be subject to the non-refoulement principle (see amendment 1), not just one Chapter. Such an approach is entirely at odds with the basic principles of human rights law.
23) Article 29(1) should be amended as follows:
Without prejudice to Article 3a, the Member States may exclude...
The proposal must make clear that even persons who can justifiably be excluded from the status of temporary protection on the grounds set out in this Article are still entitled to insist upon a non-refoulement right if they face a risk pursuant to Article 3 ECHR (see judgments of the European Court of Human Rights, notably Chahal v. UK and Ahmed v. Austria).
24) An Article 30a should be inserted as follows:
In addition to the specific rights set out in this Directive, Member States shall maintain or introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by a failure to grant the rights set out in this Directive by judicial process, whether or not they have had recourse to other competent authorities.
This text is based on clauses which appear in the ECs social law and data protection directives, and in addition reflects the effective remedies and fair trials principles of the ECHR and Community law as reflected in Article 47 of the recently-agreed EU Human Rights Charter. It is unacceptable, according to these principles, to limit access to remedies to a tiny handful of rights in the Directive (cf Articles 13(6) and 29(2)).