Comments from the European Council on Refugees and Exiles

On the

Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection


(Brussels, 12.9.2001, COM(2001)510 final




The European Council on Refugees and Exiles (ECRE) is a network of some 70 non-governmental refugee-assisting organisations in 28 European countries.  ECRE welcomes this opportunity to comment on the Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection presented by the Commission in September 2001 (henceforth the ‘Proposal’).[1]


Summary of Views


The Commission's proposal lays down rules for determining which applicants for international protection qualify for refugee status and which qualify for subsidiary protection status. It further establishes minimum standards of treatment for persons qualified for refugee status or subsidiary protection.


ECRE has long advocated that a harmonised interpretation of the Refugee Convention is "possibly the single most important factor in the creation of a common European asylum system and should be dealt with sooner rather than later".[2] Within this context, we welcome the introduction of the Commission Proposal. We are concerned however that Member States do not plan to seek an agreement on who qualifies for refugee or subsidiary protection before deciding on the other asylum directives currently under discussion. We believe that the foundation of a common asylum system must be a common understanding of who qualifies for international protection under the Refugee Convention and an EU-wide complementary protection scheme. The adoption of a  common definition should precede a final agreement on common standards for asylum procedures and reception conditions.


ECRE welcomes the affirmation in paragraph 3 of the Proposal's Preamble that  "the Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees". In particular, we note with appreciation paragraph 12 of the Preamble confirming  that "minimum standards…should be laid down to guide the competent national bodies of Member States in the application of the Geneva Convention".  This formulation is important as it serves to highlight the relationship between the 1951 Refugee Convention and the Draft Directive on the qualification for refugee status and firmly sets out the Convention's primacy as the standpoint where the development of  minimum standards should proceed from.  


ECRE considers that in many aspects, the proposal on qualification for refugee or subsidiary protection is close to a ‘full and inclusive’ interpretation of the Refugee Convention as advocated by the Conclusions of the Presidency at the Tampere European Council in October 1999.  It is sensible to have combined the interpretation of who is a refugee and the definition of others in need of protection in a single proposal. Any agreement on a complementary status will in itself be a recognition of obligations under human rights law and we welcome the proposal to grant similar rights to those people as enjoyed by refugees. ECRE has noted a number of positive features of the draft directive and would highlight the following as being its main strengths:


-     the recognition of refugee status is a declaratory act (Preamble, para. 10)

-       the duty of protection inheres "at the border or on the territory" of a Member State (Article 3);

-       past persecution is considered to be strongly probative of forward looking risk (Article 7.3);

-       persecution may take a gendered form or be gender- or child-specific (Article 7.4);

-       a correct definition of sources of harm is adopted that includes non-state actors where the State is unable or unwilling to provide effective protection (Articles 9.1 and 11(2) (a));

-       a strong presumption against finding "internal protection" is recommended if the agent of persecution is or is associated with national government (Article 10.2). In considering whether it is reasonable to return applicants to another part of the country, "reasonableness" is qualified to require consideration of both respect for human rights and particular personal circumstances (Article 10.3);

-       a well-founded fear of being persecuted has to be objectively established, thereby eliminating the risk of denying refugee status to a person who is deemed not to be sufficiently subjectively fearful. (Articles 7 (b) and 11);

-       a claim based on "membership of a particular social group" includes groups defined by "relation to certain fundamental characteristics, such as sexual orientation, age and gender", or comprising of persons who share a common background or characteristic…fundamental to identity or conscience" or groups treated as "inferior in the eyes of the law" (Article 12.4);

-       exclusion from refugee protection is to be based solely "on the personal and knowing conduct of the person concerned" (Article 14.3);

-       the grounds for qualification for subsidiary protection status are reasonably broad and inclusive (Article 15);

-       the refugee rights set out in the draft directive are "without prejudice" to the rights provided by the Refugee Convention (Article 18.1);

-       the level of rights set out in the draft directive for persons granted subsidiary protection is adequate with some exceptions, which will be outlined below.


ECRE believes that the proposal as drafted by the European Commission represents a solid basis for the adoption of EU minimum standards for the qualification and status  of persons as refugees or as persons who otherwise need international protection.  Our main concerns relate to the following provisions:


i)               Paragraph 3, Article 9: ECRE is firmly of the view that  neither stable State like authorities nor international organisations can be considered to be sources of protection from persecution or serious harm. They are not bodies that are subject to international law and therefore are not and cannot be parties to international human rights instruments. Further, state like authorities are not stable enough to warrant full respect of human rights as enshrined in international legal instruments. We urge the deletion of Article 9 (3).


ii)             Article 10: ECRE considers that in applying the "reasonableness" test for the internal protection alternative, additional criteria need to be used to avoid the risk of administrative or judicial subjectivity. In particular, consideration should be given to whether the claimant is able to access the area of internal protection in safety and dignity and legally, and whether the area of internal protection is free from conditions which could force the rejected claimant back into the area where there is a risk of serious harm for a Convention reason.


iii)            Articles 21, 24 and 31:  ECRE believes that any rights accruing to Convention refugees should be granted to all persons afforded subsidiary protection. These should include the right to a residence permit of the same duration as that granted to Convention refugees, the right to employment and self-employment without any restrictions and the right of access to integration programmes upon status determination.  They should also include the right to family reunification, a right which regrettably is unlikely to be extended to persons with subsidiary protection under the future Directive on the right to family reunification.


iv)            Finally, ECRE is concerned by the absence of any provisions in the Proposal in relation to Article 34 of the Refugee Convention on the naturalisation of refugees.


Comments on the Articles are presented in greater detail below.  They follow the order of the Proposal.


Chapter I: Subject Matter and Definitions


Article 2 (Definitions)


In this article, a "refugee" is defined as a "third country national or stateless person who fulfils the requirements of Article 1(A) of the Geneva Convention". ECRE would wish to express concern about the wording in this definition which does not fully reflect Article 1 A of the Refugee Convention and therefore risks effectively removing the right of EU citizens to claim asylum in a neighbouring EU State. This might have greater repercussions once the EU enlargement process has been completed than at the present moment.  Given the export value of EU asylum policies, it also sets a very bad precedent for other regions of the world.


ECRE recommends that the wording of this Article is amended and the term "third country national or stateless person" is replaced by the term "any person".  Articles 3 and 5 should also be amended accordingly.


Further, ECRE is disappointed by the choice of term "subsidiary protection" in the draft directive. ECRE prefers "complementary protection"; a term that clearly highlights the supporting nature such a status plays to the Refugee Convention and that non-Refugee Convention refugees are not in a lesser need of international protection.


Article 6 (Extension of international protection to the accompanying family members)


Article 6 proposes that accompanying family members should be entitled to the same status as the applicant for international protection. ECRE would recommend that in addition to accompanying family members, joining members should also be granted the same legal status and facilities as the head of the family. If this is undesirable or incompatible with their personal legal status, family members should be granted a residence permit which confers on them the same rights as those granted to the principal applicant. 


Further, family members of a person granted subsidiary protection should have access to the asylum procedure and potentially to refugee status "if they can invoke reasons on their own account for applying for recognition as refugees under the 1951 Convention".[3]


Article 7 (Assessment of applications for international protection)


This article outlines the factors that need to be taken into account when assessing an applicant's fear of being persecuted or exposed to serious and unjustified harm. In ECRE's view, consideration should also be given to the statements made by the asylum applicants with the purpose of substantiating his/her claim.


ECRE believes that in the absence of evidence to substantiate some aspects of the applicant's statement, the benefit of the doubt should be given provided that all available information has been examined and the applicant has been able to show that his/her fear of persecution is a reasonable one.[4] 


Article 8 (International protection needs arising sur place)


Article 8 proposes that refugee status should be denied if the applicant engages in activities for the sole purpose of creating the necessary conditions for making an application of international protection. In contrast however, the Commentary to the Articles correctly observes that Member States should ensure that applicants are recognised as persons in need of international protection if the activities referred to in Art.8.2 "may reasonably be expected to come to the notice of the authorities of the individual's country of origin, be treated by them as demonstrative of an adverse political or other protected opinion or characteristic, and give rise to a well-founded fear of being persecuted".  ECRE would like to firstly note that a person can genuinely take up a political conviction whilst outside his/her country of origin. We further consider that a political conviction may be attributed to the refugee claimant by the persecutor, notwithstanding a lack of real political conviction on his part. A well-founded fear of persecution can also arise where the persecutor in the country of origin knows or reasonably suspects, that someone has claimed asylum abroad. Within this context, we endorse the position put forward in the Commentary and recommend that the text of Article 8.2 be amended accordingly. 


Article 9 (Sources of harm and protection)


ECRE fully supports the inclusion of non-state actors of persecution among the sources of harm outlined in paragraph (c) of Article 9 (1). It considers that this is in full agreement with the Refugee Convention and in particular Article 1 (A) (2), the purpose of which is to provide protection to those who do not have the protection of their state of nationality or habitual residence. In ECRE's view, there is nothing in the wording of the Refugee Convention that suggests that persecution must emanate from the State or be attributable to the State due to complicity or toleration. With regard to the specific wording of Art. 9 (1) (c), ECRE would recommend that an additional point is added to explicitly account for cases of failed states where central government institutions have ceased or virtually ceased to exist.


ECRE would urge Member States to lend their full support at Council level to the Commission's inclusion of non-state actors of persecution among the sources of harm.


ECRE notes that in assessing the effectiveness of State protection, the Commentary correctly states, "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 harm being realised". This position is regrettably not reflected in Article 9 (2) which proposes a formalistic standard validating a denial of protection if the State takes reasonable steps to prevent the infliction of persecution or harm. ECRE recommends that Article 9(2) be amended so that the actual effectiveness of State protective measures is taken into account when assessing the need for protection.


ECRE is concerned by the provisions of paragraph 3 of Article 9.  This proposes that "state" protection from persecution or serious unjustified harm may be provided by international organisations and stable State like authorities who control a clearly defined territory. ECRE is firmly opposed to this view.  State like authorities are not and cannot be parties to international human rights instruments and therefore cannot be held accountable for non-compliance with international refugee and human rights obligations. Their lack of accountability in international law makes it impossible for persons living within their jurisdiction to hold them responsible at international level for ensuring that human rights standards are safeguarded. Further, ECRE would question whether state like authorities can be stable and therefore in a position to ensure full compliance with human rights obligations. State-like authorities are often unable to claim undisputed control of a given territory on a continuous basis nor can they claim that they have the monopoly of exercise of legitimate power within the territory they control. By definition the preconditions necessary for political stability cannot be present in the case of state like authorities given that these are the very preconditions that are characteristic to statehood.


With regard to the role of international organisations providing "state" protection, recent history has highlighted the ineffectiveness of such organisations in maintaining peace and security and guaranteeing human rights in conflict areas. This is far from surprising to the extent that to date no international organisation has been given the broad political mandate that is necessary for guaranteeing the protection of human rights and fully ensuring law and order. The problems in Kosovo provide the most current example. Further, important questions relating to the accountability of international organisations in international law remain unresolved.


ECRE recommends that paragraph 3 of Article 9 is deleted.


Article 10 (The Internal Protection Alternative IPA)


ECRE supports certain provisions of this article in particular with regard to the introduction of "a strong presumption against internal protection being a viable alternative to international protection if the agent of persecution is or is associated with the national government". We also endorse the provision that in examining whether an applicant can be reasonably returned to another part of the country, Member States shall consider "the security, political and social circumstances prevailing that part of the country including the respect of human rights and.. the personal circumstances of the applicant". 


ECRE considers however that in applying the "reasonableness" test for the internal protection alternative, additional criteria need to be used in order to establish whether it would be "unduly harsh" to expect a person to go to such an area:

-     the protection must be afforded by a de jure not just de facto authority. This is necessary given that de facto authorities are under no international legal obligation and often not in a position to safeguard human rights;

-       the absence of a risk of serious harm for a Convention reason in the proposed site of internal protection must be objectively established, rather than being considered reasonably unlikely to occur;

-       the claimant must be able to access the area of internal protection in safety and dignity and legally;

-       the area of internal protection must be free from conditions which could force the rejected claimant back into the area where there is a risk of serious harm for a Convention reason, i.e. it must offer a durable protection alternative and provide effective protection from refoulement to the area where the person fears persecution;

-       conditions in the area of internal protection must afford at least the same standard of protection of core human rights as the Refugee Convention does.

ECRE recommends that the above additional criteria are added to Article 10 (2).


Article 11 (The Nature of Persecution)


ECRE welcomes the provision that the well-founded fear of being persecuted should be "objectively established". It believes that this will eliminate the risk of denying protection to persons deemed not be sufficiently subjectively fearful. ECRE also supports the inclusion of conscientious objection to military service among the grounds which might be used as a basis for recognition of refugee status.  (Art.11(1)(d)). It finally endorses the provision that the risk of generalised oppression should not preclude the recognition of an applicant as a refugee. (Art.11(2)(c)).  This is in line with ECRE's position that "generalised violence does not preclude the existence of a well-founded fear of persecution by an individual or a group of people".[5]


One aspect of the proposed definition of persecution is of concern to ECRE. Article 11(1)(a) and (b) refers to harm or measures that constitute "a significant risk to the applicant's life, freedom or security". Here, we would recommend that in determining the existence of persecution, rather than focusing on a vague subset of human rights violations, namely life, freedom or security, consideration should be given to a risk of sustained or systematic denial of core human rights which all states are bound to respect as a minimum condition of legitimacy. The International Bill of Rights consisting of the Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights is central to an understanding of the minimum duty owed by a state to its nationals. We believe that the wording in Article 11(1)(a) and Article 11(1)(b) should be amended as following  "…to constitute a denial of core human rights as enshrined in the International Bill of Human Rights…".


Furthermore, so as not to confuse interpretational issues relating to the nature of persecution with the reasons for persecution, we would suggest that the words “on the grounds of race, religion, nationality, political opinion or membership of a particular social group” be deleted from Article 11(1)(a).


Article 12 (The Reasons for Persecution)


ECRE is in agreement with the description of the four first elements which need to be taken into account when considering whether a well-founded fear of persecution is based on reasons of race, religion, nationality, membership of a particular social group or political opinion. In the definition of a social group, we agree with the Commentary that the concept "needs to be interpreted in a broad and inclusive manner" in order to evolve in line with society's understanding of groups within it. We also support the Commentary's view that "the concept is not confined to narrowly defined, small groups of persons and no voluntary associational relationship or de facto cohesion of members is required". We would recommend that these views are reflected in Article 12(4).


With regard to the definition of "political opinion" however, ECRE considers it to be too limited, for it fails to take into account the true ambit of political opinion, which extends to the full spectrum of political rights entertained by the International Bill of Rights, to which the Refugee Convention itself makes reference in its Preamble. The need for the political opinion ground to be construed in this manner clearly arises from the role of the Refugee Convention in the protection of fundamental human rights, which prominently include the rights to freedom of thought and conscience, of opinion and expression and of assembly and association. Thus, even in contexts where the persecutor may be simply another private individual, if his persecutory actions against a claimant are motivated by an intention to stifle his or her beliefs, the opinion being imputed can be seen as political. Hence, in ECRE's view, Art. 12(e) ought to be amended as following: the concept of political opinion shall include the holding of, or the being perceived as holding, an opinion, thought or belief on a matter related to the State or its government or its policy, whether or not that opinion has been acted upon by the applicant."


Article 13 (Cessation of refugee status)


ECRE agrees with the provisions of this article which in most aspects reflect those of Article 1C of the Refugee Convention. We would propose that a provision is added to paragraph e) to ensure that Member States exempt from the application of Article 13(e) refugees who are able to invoke compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of the country of nationality or persons who cannot be expected to leave the Member State due to a long stay resulting in strong family, social and economic links in the country. This is referred to in the Commission's Commentary on Article 13 and should be reflected in the main text of the proposal.


Further, ECRE recommends that the Commentary's description of what constitutes "a profound and durable change of circumstances" should also be incorporated in the proposal's main text.


Article 14 (Exclusion from refugee status)


ECRE agrees with this provision which fully reflects Article 1F of the Refugee Convention. Here, we would like to emphasise the importance of  interpreting the exclusion clauses of the Refugee Convention restrictively and after extreme caution has been exercised given Article 1F's nature as a limitation on a human rights provision.


ECRE would also like to highlight the importance of ensuring that no provision in Article 14 results in the automatic exclusion from refugee status of family members of persons subject to exclusion under this Article. Family members should have the right to apply for and granted asylum on the basis of the merits of their individual application. An amendment in Article 14 should be made to this effect.


Article 15 (The Grounds for Subsidiary Protection)


ECRE warmly welcomes the grounds for subsidiary protection set out in this Article. Here however, we would emphasise that persecution for a Convention reason can and does occur in the situations described by Article 15.  ECRE considers that a person who is outside his or her country of origin and cannot return owing to a well-founded fear of being subjected to serious and unjustified harm on the basis of torture or inhumane or degrading treatment or punishment (Art. 15(a)), or violation of a human right (Art. 15(b)) should only be granted subsidiary protection if it is not possible to demonstrate that the fear of torture or other treatment or violation of a right is for reason of race, nationality, religion, membership of a particular social group or political opinion. The same test should also apply in the case of persons fleeing armed conflict, a point explicitly acknowledged in Article 11(2)(c). In ECRE's view therefore subsidiary protection should only be seen as a residual status for categories of people in need of protection who clearly fall outside the Refugee Convention.


Article 16 (Cessation of subsidiary protection status)


ECRE believes that the language in this article should reflect that employed in Article 13(2) (Cessation of Refugee Status). There, it is stated that the Member State, which has granted refugee status, bears the burden of proof to establish that an individual has ceased to be in need of international protection. ECRE therefore recommends that an additional paragraph be added to that effect.


Article 21 (Residence permits)


This provision states that beneficiaries of subsidiary protection status and their family members should be granted a residence permit valid for at least one year with the residence permit being renewed at intervals of not less than one year until it is decided that such protection is no longer required. ECRE is concerned by this provision, as it will result in creating high levels of insecurity among persons in need of international protection for a non-Convention-related reason. It believes that persons with complementary protection status should be treated in terms of duration of protection in the same way as Refugee Convention refugees bearing in mind that both categories of protected persons have similar needs and circumstances and that successful integration into the asylum country requires a status that enables persons to develop a sense of long-term perspective for the future.


Article 22 (Long-term residence status)


ECRE notes with appreciation the language used in the Commentary on Article 22 where it is stated "beneficiaries of subsidiary protection are to be treated in the same way as refugees for the purposes of long-term residency because their needs and circumstances are much the same". It recommends that accordingly Article 3.2 of the Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents be amended.


Article 24 (Access to employment)


This provision states that beneficiaries of subsidiary protection will be able to engage in employed and self-employed activities no later than 6 months after such status is granted. It also provides that holders of a subsidiary protection status should have the same access as nationals to employment-related education opportunities for adults “no later than one year after such status is granted”. ECRE affirms that employment restrictions upon status determination seriously hinder refugee integration in the long term as they risk pushing people into illegal work or encouraging dependency on public assistance. It also believes that restrictions in relation to access to vocational training have the negative effect of delaying considerably the process of acquisition of the skills and knowledge by persons in need of international protection that are necessary to access the labour market and live independently.  In our view, any rights accruing to Convention refugees should be granted to all persons afforded subsidiary protection. These should include the right to employment and self-employment without any restrictions as well as the right to vocational training and employment-related educational opportunities.


Article 28 (Unaccompanied minors)


ECRE notes with appreciation the provisions of this article aiming specifically at the needs of unaccompanied minors. It would welcome however a specific reference to the obligations under the Convention on the Rights of the Child under this article. It would further recommend with regard to paragraph 1, that unaccompanied minors should be represented at all times by a legal guardian with the option of “representation by an organisation which is responsible for the care and well-being of minors”, being only considered as an addition rather than an alternative to a legal guardian. This is important given that the absence of legal guardianship can impede a person or organisation from acting in the best interests of a child (for example, they might be prevented from authorising medical treatment, obtaining necessary documents or even gaining access to the child). Legal guardianship should continue until the child is eighteen.


Article 31 (Access to integration facilities)


ECRE disagrees with the proposed provision that beneficiaries of subsidiary protection should have access to equivalent integration programmes to those available to refugees not later than one year after their status is granted. It considers that immediate access to integration services upon status determination is very important for promoting independence and facilitating refugee participation in all aspects of the economic, social, cultural, civil and political life of the country of asylum. ECRE proposes that Article 31 should be amended to allow for persons with subsidiary protection to have the same access as refugees to integration programmes.


Article 32 (Voluntary Return)


ECRE is rather perplexed by the inclusion in this  Directive of an article on voluntary return. There is no doubt that many refugees would wish to go back to their homeland as soon as the conditions are safe. In ECRE's view however, it is inappropriate to address this issue in a document that aims at setting out the legal framework for granting and withdrawing international protection. Instead, this issue should be taken up as part of the Commission's discussions on the development of the EU's return policy.


Section 5.2 Actions envisaged and arrangements for budget intervention, Legislative Financial Statement


ECRE would welcome clarification as to the remit, composition and scope of the Contact Committee the Commission intends to establish to oversee the implementation of this directive.




London, March 2002

[1] See also, ECRE's Positions on the Interpretation of Article 1 of the Refugee Convention and on Complementary Protection, (September 2000)

[2] ECRE Observations on the Presidency Conclusions of the Tampere European Council, 15-16 October 1999.

[3] UNHCR Handbook, para. 185. See also ExCom Conclusion No. 24 (XXXII)- 1981 para. 8.

[4] See also, UNHCR Handbook, para. 203-204.

[5] Paragraph 3, ECRE Position on the Interpretation of Article 1 of the Refugee Convention.