Text proposed by the Commission
Issue of Family Reunification
Article 6, paragraph (1)
1. Member States shall ensure that accompanying
family members are entitled to the same status as the applicant for
international protection.
<TitreAm>Article 8, paragraph (2)
</TitreAm>
2. A well-founded fear of being persecuted or
otherwise suffering serious unjustified harm may be based on activities which
have been engaged in by the applicant since he left his country of origin,
save where it is established that such activities were engaged in for the
sole purpose of creating the necessary conditions for making an application
for international protection. That is not the case where the activities
relied upon constitute the expression and continuation of convictions held in
the country of origin, and they are related to the
grounds
for recognition of the need for international protection.
Article 10, title and second sentence of
paragraph 1
Internal protection
Article 12, paragraph (e)
(e) the
concept of political opinion shall include the holding of, or the being
conceived of as holding, an opinion 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, paragraph (e)
(e) can no longer, because the circumstances in connection with
which he or she has been
recognised as a refugee have ceased to exist, continue to refuse to avail
himself or herself of the protection of the country of nationality;
Article 14, paragraph 1, subparagraph (a)
Member
States shall exclude from refugee
status any applicant:
(a) who is at present receiving protection or
assistance from organs or agencies of the United Nations other than the
United Nations
High Commissioner for Refugees;
Article 16,
paragraph 2
2. Subsidiary protection
may be withdrawn if the circumstances in the country of origin
which led to the granting of such status under Article 15, cease to exist, or
if a change in circumstances is of such a profound and durable
nature that it eliminates the need for subsidiary protection.
Article 28, paragraph 1
1. Member States shall
take the necessary measures as soon as possible, to ensure the representation
of unaccompanied minors enjoying international protection by legal
guardianship, or representation by an organisation which is responsible for
the care and well-being of minors, or by any other appropriate
representation.
Article 28, paragraph 2
Member States shall ensure that the minor’s
needs are duly met in the implementation of the provisions of this Directive
by the appointed
guardian. The appropriate
authorities shall make regular assessments.
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Amendments by Parliament
Issue
of Family Reunification
Article 6, paragraph (1)
<TitreAm>Article 8, paragraph (2)
</TitreAm>
Deleted.
Article 10, title and second sentence of
paragraph 1
Internal flight alternative
Article 12, paragraph (e)
Article 13, paragraph (e)
(e) can no longer, because the circumstances in
connection with which he or she has been
recognised as a refugee have ceased to exist, continue to refuse to avail
himself or herself of the protection of the country of nationality, unless
his social, economic and family ties in the host country make his return to
the country of origin difficult to envisage.
Article 14, paragraph 1, subparagraph (a)
Member States shall exclude from refugee
status any applicant:
Deleted.
Article 16,
paragraph 2
2. Subsidiary protection may
be withdrawn if the circumstances in the
country of origin which led to the granting of such status under Article 15,
cease to exist, or if a change in circumstances is of such a
profound and durable
nature that it eliminates the need for subsidiary protection, unless his
social, economic and family ties in the host country make his return to the
country of origin difficult to envisage.
Article 28, paragraph 1
Article 28, paragraph 2
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ECRE
Issue of Family
Reunification
ECRE regrets that the right to family
reunification is not extended to persons granted subsidiary protection by
either this Directive or the Draft Directive on the right to family
reunification.
Article 6, paragraph (1)
1. Member States shall ensure that accompanying and
joining family members
are entitled to the same status as the applicant for international
protection.
Justification
Whilst
fleeing a country of prosecution it may not be possible for families to
remain together causing them to arrive in the Member State at different
times. It is therefore essential that family members later joining the
applicant are entitled to the same status for international protection.
Article 8, paragraph (2)
2. A well-founded fear of being prosecuted or
otherwise suffering serious unjustified harm may be based on activities which
have been engaged in by the applicant since he left his country of origin,
save where it is established that such activities were engaged in for the
sole purpose of creating the necessary conditions for making an application
for international protection. That is not the case where the activities
relied upon constitute the expression and continuation of convictions held in
the country of origin, and they are related to the
grounds for recognition
of the need for international protection.
Competent authorities
must recognise applicants as persons in need of international protection if
the activities referred to may reasonably be expected to come to the notice
of the individual 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 or suffering serious and
unjustified harm.
Justification
ECRE
supports the inclusion of a definition of what constitutes refugees
“sur place” in the Commission proposal. It would however recommend that the parts of the Commission’s
Commentary, reflecting the provisions on refugees “sur place” in
the UNHCR Handbook, are also included. Activities engaged in outside the
applicant’s country of origin may come to the attention of the
authorities of that country and give rise to a well-founded fear of
persecution. Other circumstances, including when a political conviction is
attributed to an individual, may also give rise to a well-founded fear of
persecution while the applicant is outside the country of origin.
Article 10, title and
second sentence of paragraph 1
Internal protection
Justification
ECRE
considers that historically the term ‘internal flight
alternative’ has incorrectly placed the onus on the individual to seek
an alternative to flight within their country of origin before fleeing. ECRE
favours the term
’ internal protection’ as it rightly focuses on whether
protection is available to the claimant in the country of origin at the time
of making a decision on the asylum application.
Article 12,
paragraph (e)
(e) The concept of political opinion shall include
the holding of, or being conceived of 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.
Justification
The present definition
is unduly limited and does not reflect the true ambit of political opinion as
reflected in the International Bill of Rights. It is the role of the Refugee
Convention to protect fundamental human rights which include the freedom of
opinion, thought, belief and expression. The Commission’s proposal would not include
instances of thought or belief that could not be classified as
‘political’.
Article 13, paragraph (e)
(e) can no longer,
because the circumstances in connection with which he or she has been
recognised as a refugee have ceased to exist, continue to refuse to avail
himself or herself of the protection of the country of nationality, unless
his social, economic and family ties in the host country make his return to
the country of origin difficult to envisage. Or where there are compelling reasons arising out of
previous persecution for refusing to avail themselves of the protection of
the country of nationality.
Justification
As the
Commission’s commentary highlights, there may be situations where past
persecution makes it impossible for individuals to return to their country of
origin. The UNHCR Handbook refers to this as a “general humanitarian
principle”(paragraph 136). In these circumstances, regardless of the
length of residence in the Member States, cessation provisions should not
apply.
Article 14, paragraph 1, subparagraph (a)
Member States shall exclude from refugee
status any applicant:
(a) who is at present receiving protection or
assistance from organs or agencies of the United Nations other than the
United Nations
High Commissioner for Refugees;
When such protection or assistance has ceased for
any reason without the position of such persons being definitively settled in
accordance with the relevant resolutions adopted by the General Assembly of
the United Nations, these persons shall ipso facto be entitled to the benefit of the
Convention.
Justification
The
Commission’s proposal reflects part of Article(1)(D) of the Refugee
Convention. Unfortunately, the full provision is not included in their draft
proposal. The second paragraph
is a necessary safeguard to this exclusion provision and should be added to
the Commission proposal.
Article 16, paragraph 2
2. Subsidiary protection
may be withdrawn if the circumstances in the country of origin
which led to the granting of such status under Article 15, cease to exist, or
if a change in circumstances is of such a profound and durable
nature that it eliminates the need for subsidiary protection, unless his
social, economic and family ties in the host country make his return to the
country of origin difficult to envisage. Or where there are compelling
reasons arising out of the previous persecution for refusing to avail
themselves of the protection of the country of nationality.
Justification
Same as for Article
13(e)
Article 28, paragraph 1
1. Member States shall
take the necessary measures as soon as possible to ensure the representation
of unaccompanied minors enjoying international protection by legal
guardianship. Representation, by an
organisation which is responsible for the care and well-being of minors or by
any other appropriate representation may additionally be provided.
Article 28, paragraph 2
Member States shall
ensure that the minor’s needs are duly met in the implementation of the
provisions of this Directive by the appointed
legal guardian. The appropriate authorities
shall make regular assessments.
Justification
It
is essential that minors are provided with a legal guardian; this should not
be an optional requirement. Representation by an organisation or any other
appropriate representation should be additional to legal guardianship and not
an alternative. The absence of
legal guardianship can impede a person or an organisation from acting in the
best interests of the child.
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