UNHCR summary observations on the Commission proposal for a Council Directive on minimum standards for giving temporary protection in the event of a mass influx
(COM(2000) 303, 24 May 2000)
The Office of the United Nations High Commissioner for Refugees (UNHCR) welcomes the Commission proposal for a draft Directive on temporary protection in the event of a mass influx as a comprehensive proposal that provides a sound basis for establishing a European approach to temporary protection. UNHCR considers the provisions of the Commission proposal as being largely in accordance with internationally agreed principles embodied in the Conclusions of the Executive Committee of UNHCR (EXCOM) as well as other standards advocated in various UNHCR documents .
UNHCRs detailed commentary on the Commission proposal is annexed. The purpose of this summary note is to highlight those elements of the Commission proposal which UNHCR considers fundamental and to summarise its proposals for amendment.
UNHCR welcomes the emphasis in the Commission proposal to approach temporary protection as an exceptional measure and a pragmatic tool to address particular situations of large-scale influx where national asylum systems may be overwhelmed. As the Commission emphasises in its proposal, temporary protection must not be used as an instrument to circumvent States obligations pursuant to the 1951 Convention.
UNHCR supports the proposed inclusion of a burden-sharing mechanism in any future European approach to temporary protection. Were such a mechanism whether financial only or also including a physical distribution of persons not to be established, the absorption and reception capacities of Member States most affected by the influx are likely to come under undue pressure. This, in turn, could jeopardise the fair and effective functioning of any future co-ordination for the provision of temporary protection at the level of the European Union.
UNHCR appreciates that the Commission has chosen the Directive as the most appropriate legal instrument, which allows it to lay down minimum standards while leaving to the national authorities the choice of the most appropriate form and methods for their implementation. This can include the adoption of more favourable standards and provisions (Article 3 (5) ) and leaves unaffected national temporary protection schemes adopted prior to the establishment of a European regime (Article 3 (4) ).
UNHCR welcomes the various references to the need to consult and inform the Office at the inception, implementation and termination of temporary protection, as well as the establishment of a burden-sharing mechanism.
II. Fundamental elements of the Commission proposal
Among the elements in the Commission proposal which UNHCR considers fundamental to any Directive to be adopted in Council are the following:
III. Proposals for amendments
Notwithstanding its generally positive assessment of the Commission proposal, UNHCR recommends the following amendments:
IV. Specific issues for consideration
UNHCR notes a few specific issues in the Commission proposal which have caused some controversy in the context of discussions with Member States related to previous Commission initiatives and on which the Office would clarify its position.
As any temporary protection regime should be considered as an exceptional measure of a truly temporary nature - resulting in suspension of access to the asylum procedure for a limited period of time Member States must not avoid their international obligations to examine, at some point, the needs for protection in an individual determination procedure. It is generally understood that many of the beneficiaries of temporary protection qualify for refugee status under the 1951 Convention, and any asylum claim should be determined as soon as possible, but no later than the moment the temporary protection regime is lifted. UNHCR is opposed to practices previously adopted by some States offering those arriving in large-scale influxes a one-time choice of lodging an application for asylum or benefiting from a temporary protection regime. In the view of UNHCR, as also proposed by the Commission, access to the asylum procedure must always be guaranteed.
UNHCR strongly supports the proposal to provide beneficiaries of temporary protection with standards of treatment which approximate to the rights and benefits of recognised refugees, on the understanding that many beneficiaries may qualify for refugee status. Such an approach is all the more justified where the need for protection continues to exist over an appreciable period of time.
UNHCR, as stated above, recommends that the draft Directive expressly provide for the right to freedom of movement save for those legitimate restrictions set out in international and regional human rights instruments within each Member State.
As regards the right to employment, UNHCR has regularly appealed to States to provide beneficiaries of temporary protection with this right, since early access to the labour market may help to diminish dependency on social assistance and also facilitate the reintegration upon eventual return to the country of origin. UNHCR supports the Commission proposal in this regard (Article 10) as well as the need to apply equal treatment of beneficiaries of temporary protection and recognised refugees as regards remuneration, social security, and other conditions of employment.
UNHCR welcomes the Commissions intention to harmonise the varying States practice on family unity in regard to temporary protected persons. The Commissions proposal to authorise family reunion for at least spouses and minor children benefiting from temporary protection reflects a trend in many Member States. UNHCR encourages Member States to adopt the Commissions proposal to extend the concept of the family to unmarried partners, children of unmarried couples and adult family members who are objectively unable to meet their own needs or are in a particularly vulnerable situation and hence dependent on other members of the family.
UNHCR supports the Commissions proposal for allowing, if necessary, financial assistance to States most affected by an influx, as well as physical distribution of persons, provided the beneficiaries of temporary protection and the host country agree with such re-location. Any burden-sharing arrangements for the redistribution of persons must respect the protection needs of the individuals concerned, as well as basic protection principles, such as family unity or humanitarian concerns. The existence of such arrangements must not be made a pre-condition for extending protection, just as they should not result in what would be in effect burden-shifting.
UNHCR would agree with the Commission proposal that following the lifting of temporary protection and in the absence of compelling humanitarian reasons, beneficiaries should be asked to return to their home country, provided that they do not lodge an application for asylum. Such returns should preferably be voluntary and must be implemented in safe and dignified conditions. UNHCR welcomes the references in the Commission proposal to the need to provide accurate information concerning the conditions in which beneficiaries will return, and the possibility of organising exploratory visits.
UNHCR believes that the proposed approach to return is both principled and sufficiently flexible to be applied in a fair and non-discriminatory manner. UNHCR also supports the proposed extension of temporary protection in specific cases where voluntary return cannot be organised immediately following the lifting of the regime, or prolonged stay in the host country is warranted for medical reasons or because children are to complete education.
In deciding upon the termination of a temporary protection regime, UNHCR urges Member States and the Commission to verify whether the conditions in the country of origin are conducive to return, by assessing whether guarantees related to the physical safety, legal security and respect for basic rights of potential returnees are fulfilled. In the absence of such guarantees, beneficiaries of temporary protection should be offered a long-term solution such as permanent asylum or resettlement.
15 September 2000