EU agrees refugee and subsidiary protection
01 March 2004
In March 2004, refugee and human rights groups called for the withdrawal of the draft asylum procedures Directive. This related measure should evoke the same response
The final version of the proposal for an EU directive on qualification for refugee status and subsidiary protection was agreed by the Justice and Home Affairs Council on 30 March 2004, and put out to consultation for all of a fortnight over the Easter holiday. The Directive was five years in the making, from the Tampere Council in 1999, and has undergone significant changes, mostly in the direction of imposing higher hurdles to eligibility, narrowing protection and reducing rights, since the Commission put forward its first draft in September 2001.
The Commission’s proposal was prepared after a series of consultations with UNHCR and NGOs such as Amnesty International and Save the Children as well as with Member States, and its guiding principles were the full and inclusive operation of the Refugee Convention (the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol) and a complementary subsidiary protection. The Commission made clear the importance of reducing disparities in the interpretation of the Refugee Convention and rights attaching to protection (without which, it acknowledged, the deprivation of choice in the country of asylum was unfair), as well as ensuring that a minimum level of protection was available in all Member States. It took as its starting point the Joint Position of 4 March 1996 on the harmonised application of the definition of the term ‘refugee’, and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. In its recital and 37 Articles, it set out detailed criteria for the grant of refugee status and of subsidiary protection (collectively known as international protection). The proposal was welcomed as generally true to the spirit of international protection, although there were some reservations. The document emanating from the Council after 30 months of hard-headed bargaining is less clear, less principled, in parts arguably inconsistent with international humanitarian law, and more open to conflicting interpretations and inconsistent application. The Preamble, issued as a separate document a week after the main text, is a hotchpotch of forty recitals, ranging from statements of basic principle (such as the centrality of the Refugee Convention or the importance of the best interests of children) to extremely contentious assertions about the scope of refugee and humanitarian law, and a jumble of recitals about the range and level of welfare rights to be offered to beneficiaries of international protection.
Principles of the Geneva Convention
The Refugee Convention itself (as amended by the Protocol) defines a refugee as someone who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality (or if stateless, of former habitual residence) and is unable or, owing to such fear, unwilling to avail him- or herself of the protection of that country. Article 2 of the proposed Directive adopts the Convention definition of a refugee, and goes on to define those eligible for ‘subsidiary protection’, who do not qualify as refugees but face substantial risk of suffering serious harm, with the same concept of inability or unwillingness to return. However, both categories of potential eligibility for international protection are restricted to third country nationals or stateless persons, in other words they exclude EU citizens. The EP and commentators such as ILPA (Immigration Law Practitioners’ Association) have pointed out that EU member states may produce refugees – in fact large numbers of Roma asylum seekers continue to arrive from Poland, the Czech Republic and Slovakia, bringing horrific accounts of skinhead and police persecution. Most of th