13/10/2006
EU key asylum law delayed

On 10 October 2006, the deadline for the implementation of the Qualification Directive, which determines the criteria for the recognition of persons in need of international protection and the content of the protection status granted to them by Member States, expired. By 9 October, only 6 Member States had notified measures taken for its transposition. Vice President Frattini called this delay in the implementation of the Directive by the majority of the Member States "particularly regrettable, given that this Directive is a cornerstone of the first phase of the Common European Asylum system”.

Directive 2004/83/EC of 29 April 2004, on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ("Qualification Directive") is one of the building blocks of the first stage of the Common European Asylum System.

This Directive aims to ensure that, throughout the EU, the same criteria apply for the identification of persons who are genuinely in need of international protection and that a minimum level of rights and benefits are available for these persons in all Member States.

Vice President Franco Frattini, Commissioner for Justice, Freedom and Security, said: "The importance of this Directive cannot be underestimated; it guarantees that the protection needs of asylum seekers will be assessed according to the same criteria wherever they make their claim in Europe and that, on the basis of their protection needs, they will be entitled to a consolidated set of rights and benefits in all Member States. This will greatly contribute to reducing the current great variances in recognition rates between Member States and therewith  reducing one pull factor for “asylum shopping."

The Qualification Directive ensures that, throughout the EU, the same criteria apply for the identification of persons who are genuinely in need of international protection and that a minimum level of rights and benefits are available for these persons in all Member States.

This approximation of rules on the recognition and content of the protection granted by the Member States is expected to help to limit the secondary movements of applicants for asylum between Member States, caused purely by differences in national legislations.

On the one hand, based on the full and inclusive application of the Geneva Convention of 1951 on the Status of Refugees, this Directive offers interpretative guidance to Member States so as to ensure a harmonized application of the Convention's criteria for qualifying for refugee status and reduce the discrepancies that existed in Member States’ legal systems in the past.

Importantly, it proposes a broad, progressive interpretation with regard to several key elements for the assessment of the protection needs of person seeking asylum. It recognizes for instance that non-state agents such as militia can also be the perpetrators of persecution and explicitly provides for the recognition as a refugee of those persons who have a well founded fear of being persecuted on account of their sexual orientation or gender. It thus recognises the legitimacy of claims by women, such as those based on acts of sexual violence, domestic violence, female genital mutilation, as well as by persons facing persecution or serious discrimination because of their homosexuality.

On the other hand, and in a manner unprecedented from a global perspective, the Directive introduces a harmonised regime for subsidiary protection in the EU for those persons who fall outside the scope of the Refugee Convention, but who nevertheless still need international protection, such as victims of civil war. This is of crucial importance as the number of persons in need of this type of protection is growing on a worldwide scale. Indeed, this Directive is the first major supranational attempt to establish a clear, uniform set of criteria, firmly based on Member States' international obligations under human rights instruments, and to codify the scope and the content of subsidiary protection in a binding instrument.

For both the refugee and the subsidiary protection status granted in accordance with its provisions, the Directive sets out the rights and benefits that attach to each status, regarding inter alia residence permits, access to education and employment, healthcare and social welfare, family unity and integration.

At the same time, the Directive ensures that terrorists or serious criminals who apply for asylum cannot find a safe haven in the EU. It provides a series of tough clauses on exclusion from both refugee status and subsidiary protection status so as to prevent the abuse of asylum systems by those who could be a threat to the security of the Member States or who have committed serious crimes.

According to statistical data provided by UNHCR, in 2005, there were 237,840 asylum applications and 73,068 positive decisions (refugee status + subsidiary protection status) in the EU25.

The Directive is based on Article 63(1) (c) and (d) of the Treaty establishing the European Community. It was unanimously adopted by Member States on 29 April 2004 and has to be transposed by Member States by 10 October 2006 at the latest. It is binding for all Member States except for Denmark (according to a protocol attached to the Treaty Denmark is not bound by the measures taken under title IV of the Treaty).
With regard to those Member States who have not notified any implementing measures until the date of the expiry of the deadline for transposition, the Commission will take appropriate procedural steps, according to the power conferred to it by Article 226 of the Treaty establishing the European Community.

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