Brussels, 10 May 2001
Subject : 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 such persons and bearing
the consequences thereof
Delegations will find attached the text of the above-mentioned draft Directive as it results from the discussions of the Permanent Representatives Committee on 3 May 2001. Comments made by delegations are shown in footnotes.
Changes to the text contained in Room Document ASILE 04/01 are in bold.
_____________
Draft
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 such persons and bearing the consequences thereof
Chapter I
General provisions
Article 1
The purpose of
this Directive is to establish minimum standards for giving temporary
protection in the event of a mass influx of displaced persons from third
countries who are unable to return to their country of origin and to promote a
balance of efforts between Member States in receiving and bearing the consequences
of receiving such persons.
Article 2
For the purposes of this Directive:
(a) "temporary
protection in the event of a mass influx" means a procedure of exceptional
character to provide, in the event of a mass influx or imminent mass influx of
displaced persons from third countries who are unable to return to their
country of origin, immediate and[1]
temporary protection to such persons, in particular if there is also a risk
that the asylum system will be unable to process this influx without adverse
effects for its efficient operation, in the interests of the persons concerned
and other persons requesting protection; hereinafter referred to as
"temporary protection";
(b) "Geneva
Convention" means the Convention of 28 July 1951 relating to the status of
refugees, as amended by the New York Protocol of 31 January 1967;
(c) "displaced persons
from third countries who are unable to return to their country of origin"
means third-country nationals or stateless persons who have had to leave their
country or region of origin, or have been evacuated, in particular in response
to an appeal by international organisations, and are unable to return in safe
and durable conditions[2]
because of the situation prevailing in that country, who may fall within the scope
of Article 1A of the Geneva Convention or other international or national
instruments giving international protection, in particular:
- persons
who have fled areas of armed conflict or endemic violence;
- persons
at serious risk of or who have been the victims of systematic or generalised
violations of their human rights;
(d) "mass influx"
means 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 geographical area, whether their arrival in the
Community was spontaneous or aided, for example through an evacuation programme;
(e) "refugees"
means third-country nationals or stateless persons within the meaning of
Article 1A of the Geneva Convention;
(f) "unaccompanied minors" means third-country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they have entered the territory of the Member States.
(g) "residence
permit" means any permit or authorisation issued by the authorities of a
Member State and taking the form provided for in that State's legislation,
allowing a third‑country national or a stateless person to reside on its
territory.[3]
Article 3
1. Temporary
protection shall not prejudge recognition of refugee status under the Geneva
Convention.
2. Member States shall apply temporary protection with due respect for human rights and fundamental freedoms and their obligations regarding non-refoulement.
3. The
establishment, implementation and termination of temporary protection shall be
the subject of regular consultations with the Office of the United Nations High
Commissioner for Refugees (UNHCR) and other relevant international
organisations.
4. This Directive shall not apply to persons who have been accepted under temporary protection schemes prior to its entry into force.
5. This Directive
shall not affect the prerogative of the Member States to adopt or retain more
favourable conditions for persons covered by temporary protection.
Chapter II
Duration and implementation
of temporary protection
Article 4
Without prejudice to Article 6, the duration of temporary protection shall be one year.
Unless terminated under the terms of Article 6(1)(b), it may be extended automatically by six‑monthly periods for a maximum of one year.[4]
Where reasons for temporary protection persist, the Council may decide [by qualified majority], on request of a Member State or the Commission,[5] to extend that temporary protection by up to one year.
Article 5
1. A
mass influx of displaced persons shall be established by a Council decision
[adopted by a qualified majority][6]
on a proposal from the Commission, which shall also examine any request by a
Member State that it submit a proposal to the Council.
2. The Commission proposal shall include at least :
(a) a
description of the specific groups of persons to whom the temporary protection
applies;
(b) the
date on which the temporary protection will take effect;
(c) an
estimation of the scale of the movements of displaced persons.
3. The
Council Decision shall have the effect of introducing temporary protection for
the displaced persons to which it refers, in all the Member States, in
accordance with the provisions of this Directive. The Decision shall include at
least :
(a) a description of the specific groups of persons to whom the temporary protection applies;
(b) the date on which the temporary protection will take effect;
(c) the declarations by the Member States pursuant to Article 26.
4. The
Council decision shall be based on:
(a) an examination of the
situation and the scale of the movements of displaced persons;
(b) an assessment of the
advisability of establishing temporary protection, taking into account the
potential for emergency aid and action on the ground or the inadequacy of such
measures;
(c) information received
from the Member States, the Commission, UNHCR and other relevant international
organisations.
5. The
relevant provisions of the Council's Rules of Procedure governing urgent cases
may apply where appropriate.
6. The
European Parliament shall be informed of the Council decision.
Article 6
1. Temporary
protection shall come to an end:
(a) when
the maximum duration has been reached;[7]
or
(b) at
any time, by Council decision adopted by a qualified majority on a proposal
from the Commission, which shall also examine any request by a Member State
that it submit a proposal to the Council.
2. The
Council decision shall be based on the establishment of the fact that the
situation in the country of origin is such as to permit the safe and durable
return of those granted temporary protection with due respect for human rights
and fundamental freedoms and Member States' obligations regarding non-refoulement.[8] The European Parliament shall be
informed of the decision.
Article 7
1. Member States may extend temporary protection as provided for in this Directive to additional categories of displaced persons over and above those to whom the Council Decision provided for in Article 5 applies, where they are displaced for the same reasons and from the same country or region of origin. They shall notify the Council and the Commission immediately.
2. The provisions of Articles 25, 26 and 27 shall not apply to the use of this possibility, with the exception of the structural support included in the European Refugee Fund set up by Decision 596/2000/EC, under the conditions laid down in that Decision.
Chapter III
Obligations of the Member States towards persons enjoying temporary
protection
Article 8[9]
The Member States shall implement their obligations without discriminating between persons enjoying temporary protection on grounds of sex, race, ethnic origin, nationality, religion or convictions, or of a handicap, age or sexual orientation.
Article 9
1. The Member States shall adopt the necessary measures to provide persons enjoying temporary protection with residence permits for the entire duration of the protection. Documents or other equivalent evidence shall be issued for that purpose.
2. Whatever the
period of validity of the residence permits referred to in paragraph 1, the
treatment granted by the Member States to persons enjoying temporary protection
may not be less favourable than that set out in Articles 10 to 17.
3. The Member States
shall, if necessary, provide persons to be admitted to their territory for the
purposes of temporary protection with every facility for obtaining the
necessary visas, including transit visas. Formalities must be reduced to a minimum because of the urgency of the
situation. Visas
should be free of charge or costs reduced to a minimum.
Article 10
The Member States shall provide persons enjoying temporary protection with a document, in a language likely to be understood by the beneficiaries, in which the provisions relating to temporary protection and being relevant to them are clearly set out.
Article
11
To enable the effective application of the Council decision referred to in Article 5, Member States shall register the personal data referred to in Annex II, first indent, with respect to the persons enjoying temporary protection on their territory.[10]
Article
12
A Member State shall take back a person enjoying temporary protection on its territory, if the said person remains or seeks to enter without authorisation on the territory of another Member State during the period covered by the decision taken under Article 5. Member States can, on basis of a bilateral agreement, decide that this provision should not apply.
Article 13[11]
The Member States shall authorise, for a period not exceeding that of temporary protection, persons enjoying temporary protection to engage in employed or self-employed activities, subject to rules applicable to the profession, as well as in activities such as educational opportunities for adults, vocational training and practical workplace experience. For reasons of labour market policies, Member States may give priority to EU citizens and citizens of States bound by the Agreement on the European Economic Area and, where appropriate, also to habitually resident third-country nationals. Ordinary law applicable to remuneration, to the access to social security systems relating to employed or self-employed activities, and other conditions of employment shall apply.
Article 14
1. The Member States
shall ensure that persons enjoying temporary protection have access to suitable
accommodation or, if necessary, receive the means to obtain housing.
2. The Member States
shall make provision for persons enjoying temporary protection to receive the
necessary assistance in terms of social welfare and means of subsistence, if
they do not have sufficient resources, as well as for medical care. Without
prejudice to paragraph 4, the assistance necessary for medical care shall
include at least emergency care and the essential treatment of illness.
3. Where persons enjoying temporary protection are engaged in employed or self‑employed activities, account shall be taken, when fixing the proposed level of aid, of their ability to meet their own needs.
4. The Member States
shall provide necessary medical or other assistance to persons enjoying
temporary protection who have special needs, such as unaccompanied minors or
persons who have undergone torture, rape or other serious forms of
psychological, physical or sexual violence.
Article 15
1. The Member States
shall grant persons under 18 years of age enjoying temporary protection
access to the education system under the same conditions as nationals of the
host Member State. The Member States may stipulate that such access must be
confined to the state
education system.
2. The Member States
may allow adults enjoying temporary protection access to the general education
system.
Article 16[12]
11. A Member State shall, at the request of another Member State, provide information, as contained in Annex II, on a beneficiary of temporary protection which is needed to process a matter under this Article.
Article 17
1. The Member States
shall as soon as possible take [...]
measures to ensure the necessary representation of unaccompanied minors
enjoying temporary protection by legal guardianship, or, where necessary,
representation by an organisation which is responsible for the care and
well-being of minors, or by any other appropriate representation.
2. During the period
of temporary protection Member States shall provide for unaccompanied minors to
be placed:
(a) with
adult relatives;
(b) with
a foster-family;
(c) in
reception centres with special provisions for minors, or in other accommodation
suitable for minors.
(d) with
the person who looked after the child when fleeing. The Member States shall
take the necessary steps to enable this placement. Agreement by the adult person or persons concerned shall be
established by the Member States. The views of the child shall be taken into
account in accordance with the age and the maturity of the child.[16]
Chapter IV
Access to the asylum
procedure in the context of temporary protection
Article 18[17]
1. Persons enjoying temporary protection must be able to lodge an application for asylum at any time.
2. The examination of any asylum application not processed before the end of the period of temporary protection, shall be completed after the end of that period.
Article 19
The criteria and mechanisms for deciding which Member State is responsible for considering an asylum application shall apply. In particular, the Member State responsible for examining an asylum application submitted by a beneficiary of the temporary protection scheme adopted on the basis of this Directive, is the Member State which has accepted his transfer on its territory .
Article
20
1. The Member States
may provide that temporary protection may not be enjoyed concurrently with the
status of asylum seeker while applications are under consideration.
2. Where, after an
asylum application has been examined, refugee status or, where applicable,
other kind of protection is not granted to a person eligible for or enjoying
temporary protection, the Member States shall, without prejudice to Article 29,
provide for that person to enjoy or to continue to enjoy temporary protection
for the remainder of the period of protection.
Chapter V
Return and measures after
temporary protection
Article 21
When the temporary protection ends, the ordinary law on protection and aliens in the Member States shall apply, without prejudice to Articles 22 to 24.
Article 22
1. The Member States
shall take the measures necessary to make possible the voluntary return of
persons enjoying temporary protection or whose temporary protection has ended.
The Member States shall ensure that the provisions governing voluntary return
of persons enjoying temporary protection facilitate their return with respect
for human dignity.
The Member State shall ensure that the decision of those persons to return is taken in full knowledge of the facts. The Member States may provide for exploratory visits.
2. For as long as
the temporary protection has not ended, the Member States shall, on the basis
of the circumstances prevailing in the country of origin, give favourable
consideration to requests for return to the host Member State from persons who
have enjoyed temporary protection and exercised their right to voluntary
return.
3. At the end of the
temporary protection, the Member States may provide for the obligations laid
down in Chapter III to be extended individually to persons who have been
covered by temporary protection and are benefiting from a voluntary return
programme. The extension shall have effect until the date of return.
Article 23
1. The Member States shall take the measures necessary to ensure that the enforced return of persons whose temporary protection has ended and who are not eligible for admission is conducted in respect of human dignity.
2. In cases of
enforced return, Member States shall consider any compelling humanitarian
reasons which may make return impossible or unreasonable in specific cases.
Article 24
1. The Member States
shall take the necessary measures concerning the conditions of residence of
persons who have enjoyed temporary protection and, in view of their state of
health, cannot reasonably be expected to travel for example if they would
suffer from serious
negative effects if their treatment is interrupted. So long as that situation
continues, they shall not be expelled.
2. The Member States
may allow families whose children are minors and attend school in a Member
State to benefit from residence conditions allowing the children concerned to
complete the current school period.
Chapter VI[18]
Solidarity
Article 25
The measures provided for in this Directive shall benefit from the European Refugee Fund set up by Decision 596/2000 [19], under the terms laid down in that Decision.
Article 26[20]
1. The
Member States shall receive persons who are eligible for temporary protection
in a spirit of Community solidarity. They shall indicate – in figures or
in general terms – their capacity to receive such persons.[21]
This information shall be set out in [...] decision provided for in Article 5. After that
decision has been adopted, the Member States may indicate additional reception
capacity by notifying the Council and the Commission. This information shall be
passed on swiftly to UNHCR.
2. The Member States concerned, acting in cooperation with the competent international organisations, shall ensure that the beneficiaries defined in the decision provided for in Article 5, who have not yet arrived in the European Union have [...] expressed their will to be received on their territory.
3. When
the number of those entitled to temporary protection following a sudden and
massive influx exceeds the reception capacity referred to in paragraph 1,
the Council will, as a matter of urgency, examine the situation and take
appropriate action, including recommending additional support for Member
States affected.[22]
Article 27[23]
1. For
the duration of the temporary protection, the Member States shall cooperate
with each other with regard to transferral of the residence of persons enjoying
temporary protection from one Member State to another, subject to the consent[24] of the persons concerned to such
transferral.
2. A Member State
shall communicate requests for transfers to the other Member States and
notify the Commission and UNHCR. The Member States shall inform the requesting
Member State of their capacity for receiving transferees.
3. A Member State shall, at the request of another Member State, provide information, as contained in Annex II, on a beneficiary of temporary protection which is needed to process a matter under this Article.
4. Where a transfer
is made from one Member State to another, the residence permit in the Member
State of departure shall expire and the obligations towards the persons
concerned relating to temporary protection in the Member State of departure
shall come to an end. The new host Member State shall grant temporary
protection to the persons concerned.
5. The Member States
shall use the model pass set out in Annex I for transfers between Member
States of persons enjoying temporary protection.
Chapter VII
Administrative cooperation
Article 28
1. With a view to
the administrative cooperation required to implement the temporary protection
scheme, the Member States shall each appoint a national contact point, whose
address they shall communicate to each other and to the Commission. The Member
States shall, in liaison with the Commission, take all the appropriate measures
to establish direct cooperation and an exchange of information between the
competent authorities.
2. The Member States
shall, regularly and as quickly as possible, communicate the data concerning
the number of persons covered by temporary protection and full information on
the national laws, regulations and administrative provisions relating to the
implementation of temporary protection.
Chapter VIII
Special provisions
Article 29
1. The Member States
may exclude a person from temporary protection if:
- there
are serious reasons for considering that :
(a) he/she has committed a
crime against peace, a war crime, or a crime against humanity, as defined in
the international instruments drawn up to make provision in respect of such
crimes;
(b) he/she has committed a
serious non-political crime outside the Member State of reception prior to his
admission to that Member State as a beneficiary of temporary protection.[25]
Particularly cruel actions, even if committed with an allegedly political
objective, may be classified as serious non-political crimes. This applies both
to the participants in the crime and to its instigators;
(c) he/she has been guilty
of acts contrary to the purposes and principles of the United Nations.
- there are reasonable grounds for regarding him/her as a danger to the security of the host Member State or, having been convicted by a final judgement of a particularly serious crime, he/she is a danger to the community of the host Member State.
2. These grounds for
exclusion shall be based solely on the personal conduct of the person
concerned. Exclusion decisions or measures shall be based on the principle of
proportionality. The persons who have been excluded from the benefit of
temporary protection
by a Member State shall
be entitled to legal challenge in the Member State concerned.[26]
Chapter IX
Final provisions
Article 30 [27]
The Member States shall lay down the penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
Article 31
1. No later than two
years after the date specified in Article 32, the Commission shall report to
the European Parliament and the Council on the application of this Directive in
the Member States and shall propose any amendments that are necessary. The
Member States shall send the Commission all the information that is appropriate
for drawing up this report.
2. After presenting
the report referred to at paragraph 1, the Commission shall report to the
European Parliament and the Council on the application of this Directive in the
Member States at least every five years.
Article 32
The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [31 December 2002] at the latest. They shall forthwith inform the Commission thereof.
When the Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 33
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.
Article 34
This Directive is addressed to the Member States.
Done at Brussels,
For
the Council
The
President
_____________________
ANNEX I
Model pass for the transfer of persons under
temporary protection
PASS
Name of the Member State
delivering the pass
Reference number (*):
Issued under Article 26 of
Directive EC No ../.. of ../../.. 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 such persons
and bearing the consequences thereof.
Valid only for the transfer
from
……………….…………………(1)
to
………………….…………(2).
The person in question must present himself/herself at
……………………………….
(3) by ……………………(4)
Issued at:
………………………………………………………………………………………………………………………………….
SURNAME:
……………………………………………………………………………………………………………………………….
FORENAMES:
……………………………………………………………………………………………………………………………..
PLACE AND DATE OF BIRTH:
……………………………………………………………………………………………………......
In case
of a minor; name(s) of responsible adult
...................................................................................................................................
SEX :
......................................................
NATIONALITY:
…………………………………………………………………………………………………………………………..
PHOTO
Date issued:
……………………………………………………………………………………………………………………..............
|
SEAL Signature of the beneficiary : .... |
For the competent authorities : .......................................... |
The pass-holder has been identified by the
authorities
…………………………….…………………….
(5)(6)
The identity of the
pass-holder has not been
established........................................................
This document is issued only
pursuant to Article 26 of Directive EC No ../.. of ../../… and in no way
constitutes a document which can be assimilated to a travel document
authorising the crossing of the external border or a document proving the
individual's identity.
(*) The
reference number is allocated by the country from which the transfer to another
Member State is made.
(1) Member
State from which the transfer is being made.
(2) Member
State to which the transfer is being made.
(3) Place
where the person must present himself/herself on arrival in the second Member
State.
(4) Deadline
by which the person must present himself/herself on arrival in the second
Member State.
(5) On
the basis of the following travel or identity documents, presented to the
authorities.
(6) On
the basis of documents other than a travel or identity document.
---------------------------
ANNEX II
The information referred to in Articles 11, 16 and 27 includes to the extent necessary one or more of the following documents or data :
– personal data on the person concerned (name, nationality, date and place of birth, marital status, family relationship),
– identity documents and travel documents of the person concerned,
– documents concerning evidence of family ties (marriage certificate, birth certificate, certificate of adoption),
– other information essential to establish the person's identity or family relationship,
– residence permits, visas or residence permit refusal decisions issued to the person concerned by the Member State, and documents forming the basis of decisions,
– residence permit and visa applications lodged by the person concerned and pending in the Member State, and the stage reached in the processing of these.
The providing Member State shall notify any corrected information to the requesting Member State.
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