Laying Down Minimum Standards on Procedures for Granting or

The last Commission proposal on the “first step” for a Common Asylum System was submitted on September 12, 2001. The Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Otherwise Need International Protection485 touches on one of the major questions in the field of asylum, namely, who is a refugee? The Commission first listed the conditions for granting refugee status and when this should be withheld. One can learn much about the relationship between the Commission and the Council from this proposal. While the Commission traditionally advocates for a more liberal approach towards refugees than the Council, it was nevertheless obliged to follow the Council position on refugee protection. Moreover, every proposal made by the Commission has to be reviewed by the Council. Already in the initial proposal that was crowned as extremely liberal, the Commission recommended that new concepts of complementary protection be developed rather than extending the scope of the Geneva Convention to allow easier access to asylum seekers Convention protection. The Commission began by explaining that while the Geneva Convention “remains relevant”, at the same time it was considering complementary measures to the Geneva Convention486 _{by suggesting a new status, that of “subsidiary protection”. The idea was} that persons who have a well-founded fear of being persecuted or suffering serious harm should be entitled to protection from a Member State487_.

In many ways, the distinction between a refugee and a person eligible for subsidiary protection is not clear. Article 11 is a very good example in this respect. On the one hand, the Commission argues that a person who fled from war or generalized oppression is

485 _{Commission Proposal for a Council Directive on minimum standards for the qualification and status of} third country nationals and stateless persons as refugees or as otherwise need international protection, Brussels, 12.9.2001, OJ, C 051 E 26.2.2002.

486 _{See p. 10.} 487 _{Ibid., p. 12.}

entitled to be recognized as a refugee if race, religion, nationality, membership in a particular social group, or political opinion are the source of their oppression. On the other hand, it recognizes the fact that Member States have the tendency to exclude these persons from refugee status. In other words, the Commission admitted to the reality that refugee status does not depend on objective criteria488 _{but rather is based on the} willingness of Member States to grant this status.

While discussing the source of persecution, the Commission declared that there are three main agents: state, parties of organizations controlling the state and non-state actors where the state is unable or unwilling to provide effective protection (See Article 9). The Commission declared that, “Member States need to evaluate the effectiveness of state protection. They shall consider whether the state takes reasonable steps to prevent the persecution and whether the applicant has reasonable access to such protection”. Moreover, “ ‘state’ protection may also be provided by international organizations and stable quasi-state authorities who control a clearly defined territory of significant size and stability” and who are able and willing to protect an individual from harm in a manner similar to an internationally recognized state. As Steve Peers argues, this concept is difficult to apply in practice, “because non-state agents controlling some or all state territory are not signatory to human rights treaties and have intrinsic problems guaranteeing safety upon the entire territory”. Moreover, “these entities would not have been trusted with the job of administrating a territory if there where not a risk or a reality of conflict in the relevant territory to begin with, and moreover their role is in principle transitional”489.

The idea of internal protection, which was often criticized, was supported by the Commission (Article 10), “Member States may examine whether this fear is clearly confined to a specific part of the territory of the country of origin and, if so whether the applicant could reasonably be returned to another part of the country where there would

488 _{According to the Geneva Convention principles a refugee is a person who has a well-founded fear of} being persecuted for reasons of race, religion, sex, nationality and belonging to a specific social group. 489 _{See Submission by State watch on the Commission Proposal for a Directive on refuges status and} subsidiary protection to the House of Lords Select Committee on the European Union, Sub-Committee “E”, prepared by Steve Peers, State watch, March 8, 2001.

be no well-founded fear of being persecuted”490_{. The Commission also further developed} the concept of internal flight, the basic idea being that even if state authorities were the source of persecution, asylum seekers might be deprived of the right for asylum if they, “could obtain effective protection in another part of his country...”. In this area the Commission emphasized the idea of developing a regional approach to protection in appropriate cases involving cooperation with non Member States and the possibility of identifying safe areas within the country of origin.

Articles 22 to 32 refer to the different rights of refugees and grantees of subsidiary protection in the country of residence since in general they do not enjoy the same set of benefits. Whereas a refugee, for example, is entitled to reside for five years, persons eligible for subsidiary protection are allowed to stay for only for one year (Article 21). Another important distinction between the two groups concerns employment. Refugees can be employed or self-employed under the same conditions as nationals. They can also be offered vocational training and workplace experience under the same conditions as nationals. Persons, however, enjoying subsidiary protection have to wait six months (Article 24) and a year respectively until they could gain access to vocational training and workplace experience.

In the end, the text was rejected by the Council and had to be amended. On April 24, 2002, the Asylum Working Party presented a new proposal on these matters taking into consideration the comments of the Member States491_{. Under Article 2 definitions}

accompanying family members must be of the same nationality as the applicant for

490 _{Article 13 provides a list of refugee status cessation clauses. Refugee status shall be maintained unless} the refugee has voluntarily reaviled himself, received a new nationality, or received new protection either from his own country or from another country. In addition, if the Member States are of the opinion that a refugee no longer needs international protection his refugee status can be withheld, “because the circumstances in connection with which he or she has been recognized as a refugee have ceasedto exist.” In this situation the refugee is compelled to return to his country of origin. This ruling contradicts the Geneva Convention, which states that the refugee alone can decide whether he would like to return to its country of origin.

491 _{Council of the European Union, Outcome of Proceedings, Asylum working Party, April 8, 2002,} Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as otherwise need international protection. Inter institutional File: 2001/0207 (CNS), 7882/02 Limite, Asile 20, Brussels, April 24, 2002.

consideration as refugees492_{. Moreover, a time limit was imposed upon their application:} “three months after the application was lodged should be introduced for family members to opt for international protection”493_{. While the initial proposal allowed family members} to obtain the same rights as the applicant for international protection, in the new draft only family members, “residing in the same Member State should be entitled to this status, but not automatically” (Article 6)494_{. With regard to assessing the fear of being} persecuted, the original proposal suggested, for example, that Member States should take into account, as a minimum, “the individual position of personal circumstances of the applicant, including factors such as background, gender, age, health and disabilities so as to assess the seriousness of persecution or harm” (Article 7 d). It was now suggested to delete the words, “including factors such as background, gender, age, health and disabilities so as to assess the seriousness of persecution or harm”. Article 9 stated that a definition of non-state actors should be included in the Directive: “In principle, no protection should be offered in these cases, unless certain conditions are met (e.g. that these activities of non-state actors are tolerated or encouraged by the public authorities)”. Article 10 leaves more room for maneuver by a Member State: “in cases involving asylum procedures more scope for return must be left to Member States”495_{. Article 12} argued that one should, “establish more general criteria” about the reasons of persecution, as, “The ones provided for here are too specific and would raise problems of application in the future”. Thus, for example, one should “avoid defining nationality” or “referring to sexual orientation as an example of a social group”. In any case, it was stated that the concept of 'social group' was too large496_{. Though the new proposal was more restrictive} than the initial proposal made by the Commission on September 2001, it too was similarly rejected. A number of meetings have been held ever since but agreement, as of April 2004, has not been reached. The Seville European Council of June 2002 set a deadline to arrive on an agreement on this Directive by June 2003. Nevertheless, the justice and home affairs (JHA) Council failed to agree on this Directive and thus further discussion was postponed until the Irish Presidency in 2004.

492 _{Ibid., p. 4.} 493 _{Ibid., p. 4.} 494 _{Ibid., p. 7.} 495 _{Ibid., p. 12.} 496 _{Ibid., p. 17.}