Informal JHA Council Meeting
in Copenhagen 13 September 2002
Discussion paper concerning recognition rates on
Convention refugees and persons in need of protection in Member States and (the
road towards) a common understanding of international protection
On
October 31, 2001 the Commission proposed a Council Directive on minimum
standards on the qualification and status of third country nationals and
stateless persons as refugees and as persons otherwise in need of international
protection (protection qualification directive).
In
the proposal the Commission explains that the main aim of the proposal is
”to ensure that a minimum level of protection is available in all Member
States for those genuinely in need and to reduce disparities between Member
States' legislation and practice in these areas. Any differences not solely
connected with family, cultural or historical factors, likely to influence in
one way or another the flows of asylum applicants, should as far as possible
disappear between the Member States, where such movement is purely caused by
differences in legal frameworks”[1].
Bearing
this explanation in mind ministers are invited to discuss the desired level of
an approximated protection regime.
One
of the aims of the proposal is to limit secondary movements that are caused by
differences in legislation and practice and subsequent differences in
recognition rates. The differences in recognition rates become apparent when
reading UNHCR statistics on recognition rates on refugee convention status and
subsidiary protection status, which show that the rates vary significantly.
·
Do ministers share the view that an
important cause of secondary movements is Member States' different legislation
and practice and that an approximation of legislation as well as practice would
be a relevant remedy?
Statistics
show that a large percentage of the total number of persons granted protection
status is granted subsidiary protection. The form and content of subsidiary protection
granted by Member States is very different. These two pieces of information
lead to the assumption that the existing variety of subsidiary protection
influences secondary movements in a significant way.
· Do ministers share the view of
the Presidency, that the different forms of subsidiary protection in Member
States constitute an important reason for secondary movements?
· Do ministers agree that this
could be remedied/mitigated through an approximated definition of subsidiary
protection?
In
accordance with the 1996 EU Joint position on the harmonised application of the
term “refugee” there is consensus among the Member States that
persecution carried out by non-state actors, which is encouraged or permitted
by the authorities constitutes persecution as defined in article 1 A of the
Genéva Convention.
However,
Member States should still reach a common understanding as to whether
persecution carried out by non-state actors, in the exceptional situation where
the state is unable to provide protection, constitutes persecution as
defined in article 1 A of the Genéva Convention.
· Do ministers agree that
persecution carried out by non-state actors, in situations where the state is
unable to provide protection, may constitute persecution as defined in article
1 A of the Genéva Convention?
The
directive on minimum standards on the qualification and status of third country
nationals and stateless persons as refugees and as persons otherwise in need of
international protection rightly acknowledges the primacy of the 1951
Convention relating to the Status of Refugees. Subsidiary protection should be
seen as an important complement to refugee protection.
All
Member States have developed additional or subsidiary forms of protection in
order to provide protection to persons who are not covered by the Geneva Convention
but who are still in need of protection.
There
has been no co-ordination between the Member States as to the form and content
of subsidiary protection with the result that the subsidiary protection regimes
in the Member States are different.
Some
Member States have developed wide definitions of subsidiary protection including
for instance victims of civil war and victims of environmental disasters. Some
Member States have formed their subsidiary protection regime in accordance with
already existing international obligations.
·
Do ministers agree that the
common definition of subsidiary protection should be based upon the
international obligations of Member States as established by the European Court
of Human Rights in relation to article 1 of protocol 6 and article 3 of the
EHRC; and only be applied to third country nationals who due to a serious risk
of facing acts mentioned in these articles are forced to leave or stay outside
their countries of origin?
· Do ministers agree that the common definition of subsidiary protection
should in addition be sufficiently flexible to adapt to the possible development
of the international obligations of Member States, especially the development
of the jurisprudence of the European Court of Human Rights?
[1] 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 (COM(2001)510 final).