Joint comments

on the Commission Proposal for a Council Directive

on minimum standards for the qualification and status of third country nationals and stateless persons who otherwise need international protection

COM (2001) 501 final







Comments on the Articles



Article 2: Definitions


Arts 2. a)           This article provides a definition of “international protection” that tries to cover both the refugee status and the subsidiary protection status. Although we recognise the efforts of the Commission in this field, we recommend caution in the adoption of a single Directive for both issues. There is a risk for genuine refugees to be considered under the subsidiary protection scheme, where the level of protection is weaker.


Art 2. c)             Although we recognise that a EU citizen is unlikely to be covered by the Geneva Convention, the wording of this article, defining a refugee as a “third country national”, does not take into consideration the situation of the person in need of protection, who might be a European citizen. Therefore, we urge for the consideration of individual situations rather than geographical concepts.



Article 2. j)        The definition of family provided by this article does not cover collaterals (sisters, brothers), which could be the only family applicants might have. Taking into account that it is possible to find different concepts of family, depending on the cultural background of that family, frequently collaterals are considered at the same level as direct line relatives. We urge the inclusion of this category into an extended family definition.


On the other hand, this provision defines as a family member the unmarried partner in a stable relationship only where the legislation of the relevant Member State treats unmarried couples in the same way as married couples. Since, however, equal treatment of married and unmarried couples is often based on jurisprudence or common practice rather than on legislation per se we recommend replacing the word “legislation” by “legislation, jurisprudence or practice”.


Thirdly, this article does not include the children of the applicant’s spouse or stable partner. We urge the inclusion of this category.



Article 5: The elements of international protection



Article 5. 2         We subscribe the UNHCR approach[1] concerning the qualification for subsidiary protection, whose wording may lead to confusion with the refugee definition itself. We accept that, for the sake of differentiation, the core concept for the qualification subsidiary protection lies on a “fear of suffering serious and unjustified harm”, as differentiated from the refugee concept related to a “fear of being persecuted”. Nevertheless, the expression “availment of protection” is linked specifically to the concept of “well-founded fear of persecution”; the qualification for subsidiary protection should stress the fact of the inability or unwillingness to return to the country of origin.


                       On the other hand, from our perspective we stress the need for broader grounds for the definition and qualification of subsidiary protection, based on the existence of persons who are obliged to flee their country of origin or residence, and the lack of protection of these persons.



Article 8: International protection needs arising sur place



Article 8. 2         The content of this article is aimed to provide an exception clause where the fear of persecution or suffering serious unjustified harm are based on activities engaged in by the applicant for the sole purpose of creating the conditions for making an application for international protection. We consider that the main question to be assessed in an application for international protection lies on whether or not the  “fear for being persecuted” or “of suffering a serious and unjustified harm” has been established, and it is part of such an assessment to take into account all relevant facts concerning an individual case. There is no need for this exception clause, and consequently we urge the deletion of art. 8. 2.



Article 9: Sources of harm and protection


Article 9.1          We welcome the formal inclusion of non-State actors as sources of harm and persecution.


Article 9.3         This provision specifies that State protection can be provided by international organisations and stable quasi-State authorities controlling a defined territory. Nevertheless, de facto authorities and international organisations should not be considered able to provide effective protection, as a number of examples provided by contemporary history have shown. State legitimacy to provide protection is based on two main points: they are subject to international obligations and hold the State sovereign power. States are the only international actors entitled to provide effective protection, since international organisations and quasi-State authorities lack one of those legitimacy prerequisites. We urge the deletion of this provision.



Article 10: Internal protection


Article 10. 2       We are seriously concerned about the possibility that the concept of internal protection may be used as a basis for avoiding the recognition of the status of refugee. Therefore, we consider that there is a need for the inclusion of certain additional provisions related to the stability of the conditions supporting the alternative of internal protection in a specific territory. Those protection conditions should be effectively provided by a State, and well established enough to indicate a long-lasting situation.

Article 12: The reasons for persecution

Article 12          We welcome the development of the reasons for persecution contained in the Geneva Convention, as a broad guideline for the definition of nexus or connections to a Convention reason for persecution.

Article 14: Exclusion from refugee status

Article 14.1 (a)    See art. 9.3.

Article 15: The grounds of subsidiary protection

Article 15          As stated in art. 5.2, we are concerned about the narrowness of the definition and qualification of subsidiary protection, and worried about the possibility that persons covered by the subsidiary protection status under this article deserve in fact the refugee status as stated in the Geneva Convention. We urge for the inclusion of the death penalty as one of the qualifications for “serious and unjustified harm”. At the same time, we recommend the specific mention of the application of this article only when no connection to a Convention ground or reason (race, religion, nationality, etc.) has been established.

Article 16: Cessation of subsidiary protection status

Article 16.1        We are deeply concerned about the wording of this provision could lead to a weak system of subsidiary protection based on short-term schemes. We consider that the subsidiary protection status should not preclude integration in the host country. Therefore, we urge the inclusion of a guarantee for the stability of the complementary protection status in similar terms than those provided for the cessation of the refugee status, including a list of specific reasons for cessation.

Article 19: Protection from refoulement and expulsion


Article 19          We welcome the application of the principle of non-refoulement to be extended to persons enjoying subsidiary protection.     Nevertheless, the mention of “international obligations” as an implicit limitation of the principle, and the Commentary of the Commission, leads to the differentiation between three categories: refugees, people under the protection of the European Convention of Human Rights (victims of torture or inhuman or degrading treatment or punishment), and the rest (to whom Member States “are required” not to expel). For the sake of clarification, we urge the deletion of the second part of the article.


Article 21: residence permits

Article 21          We consider there is no reason for the differentiation of the duration of the residence permits granted to refugees and to persons enjoying subsidiary protection (five and one year respectively), once their respective status has been determined: the duration of the residence permits granted to persons under complementary protection should be the same than those granted to refugees.



Article 24: Access to employment


Article 24          Although we welcome that the proposal establishes a deadline for the access to the labour market to persons enjoying subsidiary protection, we consider that there is no valid reason for the differentiation with respect to the beneficiaries of the refugee status. The beneficiaries of subsidiary protection should have access to the labour market, employment-related education opportunities and vocational training immediately after their status has been granted.




[1] UNHCR’s Observations on the Commission Proposal, number 19 (November 2001)