Explanatory Memorandum to COM(2007)298 - Amendment of Directive 2003/109/EC to extend its scope to beneficiaries of international protection - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2007)298 - Amendment of Directive 2003/109/EC to extend its scope to beneficiaries of international protection. |
|---|---|
| source | COM(2007)298  |
| date | 06-06-2007 |
Grounds for and objectives of the proposal Refugees and beneficiaries of subsidiary protection (hereinafter also “beneficiaries of international protection”) are currently not entitled to long-term resident status under Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. The Council and the Commission, acknowledging this gap, called in the Joint Statement of 8 May 2003 for the extension of Council Directive 2003/109/EC to cover beneficiaries of international protection. This proposal is to give effect to that statement by including beneficiaries of international protection within the scope of Council Directive 2003/109/EC.
General context In the Commission's proposal of 2001 for Council Directive 2003/109/EC i, refugees could qualify for long-term resident status after five years of legal and continuous residence in a Member State. However, in the course of the negotiations, it was decided to exclude refugees from the scope of the Directive, and in the Joint Statement from the Council and the Commission, made at the JHA Council of 8 May 2003, it was agreed that the Commission would table a proposal for a Directive on the extension of long-term resident status to refugees and persons under subsidiary protection, taking into account the study on transfer of protection status.
Existing provisions in the area of the proposal Long-term resident status, and the rights and benefits attached to that status, are defined in Council Directive 2003/109/EC which will apply also to beneficiaries of international protection following the adoption of this proposal. According to Council Directive 2004/83/EC of 29 April 2004, beneficiaries of international protection are third country nationals or stateless persons who have been granted refugee or subsidiary protection status within the meaning of this Directive.
Consistency with other policies This proposal is fully in line with the Tampere European Council Conclusions of 1999 and the Hague programme of 2004 concerning the fair treatment of third-country nationals.
Consultation of interested parties
In 2004 the Commission services informally discussed the broad outline of this proposal with the Member States in the Committee on Immigration and Asylum (CIA) as well as in two informal expert meetings. UNHCR, the European Council on Refugees and Exiles (ECRE) as well as the Churches' Commission for Migrants in Europe (CCME) were also informally consulted in 2004. A “study on transfer of protection status in the EU, against the background of the Common European Asylum System and the goal of a uniform status valid throughout the Union for those granted asylum” was carried out by the Danish Refugee Council, the Migration Policy Institute and the Institute for Migration and Ethnic Studies' on behalf of the Commission. The report of the study consists of three parts, describing the existing legal framework, the practice of eleven Member States and one non-Member State and future scenarios for a community mechanism for transfer of protection. The researchers consulted eleven Member States, the UNHCR and the Council of Europe (on the European Agreement on transfer of responsibility). The final report, which was discussed with Member States' experts, met with broad consensus.
The parties consulted welcomed the extension of the Directive to refugees. However, some Member States expressed doubts as to the inclusion of beneficiaries of subsidiary protection. The Commission decided nevertheless to include that group in this proposal because it considers that the situations of all third-country nationals who have resided for five years in the host Member State should be covered (in addition the Joint Statement of May 2003 referred to both categories). Most parties consulted agreed with the analysis in the study that the transfer of protection may occur even before long-term resident status is acquired, which implies that transfer of protection would merit a separate proposal. Most parties consulted also agreed that a community mechanism on transfer of protection implies mutual recognition of asylum decisions which in turn requires a sufficient level of harmonisation of Member States' asylum procedures. The Commission consequently decided not to include a community mechanism for transfer of protection in this proposal.
Contents
AMENDING COUNCIL DIRECTIVE 2003/109/EC The main aim of the proposal is to offer beneficiaries of international protection legal certainty about their residence in a Member State and rights which are comparable to those of EU nationals after 5 years of legal residence, thus closing a gap left open by Directive 2004/83/EC. This is done by deleting the exceptions to the scope of Directive 2003/109/EC concerning beneficiaries of international protection, while taking into account, where necessary, their specific position as compared to other third-country nationals. LONG-TERM RESIDENT STATUS IN A FIRST MEMBER STATE Beneficiaries of international protection should be able to acquire long-term resident status in the Member State which has granted them protection subject to the same conditions as other third-county nationals. Furthermore, beneficiaries of international protection who obtain long-term resident status should enjoy fully the rights and benefits attached to this status and should also be subject to the restrictions and limitations of these rights and benefits prescribed by Directive 2003/109/EC. However, as long as a long-term resident remains a beneficiary of international protection under Directive 2004/83/EC, his/her rights flowing from Directive 2004/83/EC cannot be impeded by limitations set out in Directive 2003/109/EC. The question of whether the beneficiaries of international protection who are granted long-term resident status may still need international protection or whether they are still entitled to international protection status under Directive 2004/83/EC is outside the scope of the present Directive. Nonetheless, the initial grant of protection also requires ensuring respect for the principle of non-refoulement in the event of withdrawal or loss of the long-term resident status in the first Member State. RESIDENCE IN AND LONG-TERM RESIDENT STATUS IN A SECOND MEMBER STATE Chapter III of Council Directive 2003/109/EC sets out the conditions under which long-term residents may exercise their right of residence in another Member State. These conditions should apply in full to beneficiaries of international protection who have been granted long-term residence. Beneficiaries of international protection applying under Article 23 of Directive 2003/109/EC for long-term resident status in a different Member State from that which granted them international protection should also be obliged to comply with all relevant conditions required by Directive 2003/109/EC . NO COMMUNITY MECHANISM ON TRANSFER OF RESPONSIBILITY FOR PROTECTION UNDER THE AMENDED DIRECTIVE 2003/109/EC This Directive only grants, under certain conditions, the right to take up residence in a second Member State to long-term residents, not to beneficiaries of international protection as such (Directive 2004/83/EC does not grant such a right either). Although taking up residence in a second Member State may result in some cases in the transfer of responsibility for protection at a certain moment in time, the issue is outside the scope of this Directive. Although reliable statistics are not available, the study on transfer of protection mentioned above illustrates that requests for transfer of protection are rarely made. In practice, the differences in interpretation by Member States of the existing legal provisions on transfer of protection do not cause insurmountable problems. The study also clarifies that transfer of protection is not inherently linked to a long-term resident status for beneficiaries of international protection, since a refugee can be allowed to reside in a second Member State (for work or family reasons) even before having been granted long-term resident status in a first Member State. Moreover, transfer of protection implies the mutual recognition of asylum decisions between Member States which in turn requires a level of harmonisation of the Member States' asylum procedures which does not exist for the moment. Consequently the proposal to amend Directive 2003/109/EC does not include a mechanism for transfer of responsibility for protection under community law. This implies that requests for transfer of responsibility for protection remain governed by the 1951 Geneva convention and by the European Agreement on transfer of responsibility for refugees concluded in the framework of the Council of Europe, where applicable. ENSURING THE RESPECT OF THE PRINCIPLE OF NON-REFOULEMENT BY THE SECOND MEMBER STATE Since the proposal does not deal with the transfer of responsibility for international protection, it is important to safeguard the respect of the principle of non-refoulement in the second Member State. This issue gains even more importance once a beneficiary of international protection who has already obtained long-term resident status in a Member State (the first Member State) is also granted long-term residence status in another Member State (the second Member State) after having resided there for 5 years. Consequently, it must be ensured that the authorities of the second Member State are fully aware that a long-term resident applying for residence in the territory of that Member State was granted international protection in another Member State. This should be ensured both in the case where long-term residents who are beneficiaries of international protection have not yet acquired a long-term resident status in the second Member State, as well as in the case where they have already acquired a long-term resident status in the second Member State. To this end, it is proposed to provide in Article 8 that this information should be mentioned on the long-term residence permit under the heading “remarks”. Although this mention would not be in itself evidence that a person is at present a beneficiary of international protection, it would guarantee that the authorities of the second Member State are aware of the possibly continuing need for international protection (the “international protection background”) of the long-term resident concerned. Where a long-term resident is granted the long-term resident status also in a second Member State, this information should be reproduced in the residence permit issued by this Member State, unless, following consultation with the Member State which granted the protection status, the second Member State establishes that in the meantime the status has been withdrawn. For the cases where a long-term resident status has not yet been granted in the second Member State, Article 22 of Directive 2003/109/EC should also be amended so that the removal from the second Member State of long-term residents whose permits contain the remark stating that they are beneficiaries of international protection in another Member State - and who therefore may still have protection needs - is possible only to the first Member State. For the case where a long-term resident status was granted in the second Member State, Article 12 should be amended so as to provide that where the authorities of the second Member State consider the adoption of an expulsion measure, they are obliged to consult the authorities of the Member State which granted the protection to the person concerned. If this Member State confirms that the person is still a beneficiary of international protection, expulsion from the second Member State will only be possible to the Member State which originally granted the protection to the person concerned. However, both cases of readmission should be without prejudice to the provisions of Article 21 i of Directive 2004/83/EC, regarding the exceptions to the protection from refoulement.
This proposal amends Directive 2003/109/EC and uses the same legal base as that act, namely Articles 63(3)(a) and 63 i of the EC Treaty. This legal base is appropriate given that long-term resident status for beneficiaries of international protection is a tool for their integration as third-country nationals in the host Member State and is therefore a matter of immigration policy. The United Kingdom and Ireland are not bound by Directive 2003/109/EC following the Protocol on the position of the United Kingdom and Ireland annexed to the Treaties. Likewise, Denmark is not bound by virtue of the Protocol on the position of Denmark, annexed to the Treaties.
Beneficiaries of international protection fall outside the scope of Directive 2003/109/EC, which means that Member States decide at national level whether, and if so, on what conditions beneficiaries of international protection can be granted a more permanent status and what the scope of such a status would be. Currently they can obtain this status in some Member States, but not in all. Moreover, the scope of their status differs between the Member States. The Council and the Commission have agreed, however, that beneficiaries of international protection should be entitled to the long-term resident status referred to in Directive 2003/109/EC in all the Member States on comparable conditions. This requires the adoption of common rules at Community level.
Therefore amending Directive 2003/109/EC is the best method of ensuring equal treatment for all third-country nationals who have legally resided in a Member State for a certain period.
The form of Community action must be the simplest that will enable the objective of the proposal to be attained and effectively implemented. In this spirit, the legal instrument chosen is a Directive amending an existing Directive. It will lay down general principles but leave it to the Member States to which it is addressed to choose the most appropriate form and methods for giving effect to these principles in their national legal system and general context. The proposed Directive merely determines the conditions for the acquisition of long-term resident status by third-country nationals who are also beneficiaries of international protection. Member States, if they wish, may determine more favourable conditions for the acquisition of a permanent status applying solely in the national context.
Amendment of Article 2 Given the necessary link between Directive 2004/83/EC of 29 April 2004 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 and Directive 2003/109/EC, where it comes to the definition of the group of third-country nationals who should also be able to obtain long-term resident status, it is appropriate to add to Article 2 of Directive 2003/109/EC a reference to the key definition of international protection in Directive 2004/83/EC. Amendment of Article 3 It is proposed to delete the provisions that exclude beneficiaries of international protection from the scope of Directive 2003/109/EC. Amendment of Article 4 It is proposed to amend Article 4 of Directive 2003/109/EC in order to take the duration of the asylum procedure into account for the calculation of five years of legal residence in a Member State. This ensures fair treatment in case a third-country national is granted international protection status as a consequence of review or appeal against a previous negative decision taken on his/her application for asylum. Amendment of Article 8 Articles 8 to 11 of Directive 2003/109/EC shall apply in full to beneficiaries of international protection who lodge an application for long-term resident status in a Member State. However, it is necessary to address Member States’ concerns regarding the respect of the principle of non-refoulement where the residence of a long-term resident could be ended on the basis of Directive 2003/109/EC. These concerns relate to the fact that the ‘protection background’ of the residence of the third-country national could possibly be overlooked where the national authorities competent for granting and withdrawing an international protection status are different from those competent for granting and withdrawing a long-term resident status. The issue is also important in the situation where a beneficiary of international protection who was granted long-term resident status moves to another Member State and after 5 years of residence acquires long-term resident status in that Member State. To ensure therefore that the competent authorities are aware of this “protection background”, the proposed amendment of Article 8 obliges Member States to include in the long-term EC residence permit granted to beneficiaries of international protection a specific remark regarding the fact that the third-country national has been granted a protection status. The same information should be entered by the second Member State granting long-term resident status to a third country national whose long-term EC residence permit issued by the first Member State contains the above mentioned remark. However, the second Member State shall not reproduce this information on the permit if, after having consulted the Member State which according to the remark granted international protection, it finds out that international protection has been withdrawn. Amendment of Article 11 The question whether the beneficiaries of international protection who are granted long-term resident status may still need international protection or whether they maintain their international protection status under Directive 2004/83/EC is outside the scope of the present Directive. However, where they maintain their international protection status under Directive 2004/83/EC and they reside in the Member State which granted them this status, they remain entitled to the rights and benefits attached to this status. Therefore an amendment of Article 11 is necessary in order to clarify that the possibilities for restrictions of the principle of equal treatment referred to in this Article may apply in their case only to the extent that they are compatible with the provisions of Directive 2004/83/EC. Amendment of Articles 12 and 22 Although the transfer of responsibility for protection is outside the scope of this Directive, Member States are bound by the principle of non-refoulement in the 1951 Geneva convention – and reflected in Article 21 of Directive 2004/83/EC – and the European Convention on Human Rights, in particular Article 3 thereof, where applying the provisions of this Directive on removal from the territory of the Union. The proposed amendments to Articles 12 (new paragraphs 3a and 6) and 22 (new paragraph 3a) aim to ensure as far as possible that the principle of non-refoulement is safeguarded in all situations which may arise in the exercise of rights under Directive 2003/109/EC by a beneficiary of international protection. In practice, Member States will first have to assess whether Directive 2004/83/EC (still) applies to the third-country national, and if so, whether the removal of the third-country national from the territory of the Union would be in compliance with the principle of non-refoulement. A) Expulsion by the Member State which granted long-term resident status – Article 12 For cases where according to the remark introduced under Article 8 i both long-term resident status and international protection was granted by the same Member State, the new paragraph 6 guarantees the respect of Article 21 of Directive 2004/83/EC. This will oblige the Member State considering the adoption of an expulsion measure to verify whether the third country national still benefits from international protection. If this is the case, expulsion is possible only in the cases foreseen by this provision. For the cases where, according to the remark introduced pursuant to Article 8 i, international protection was granted by a different Member State from the one which granted long-term resident status, paragraph 3b was added to Article 12. This provision obliges the second Member State, which considers adoption of expulsion measures, to consult the Member State which according to the remark granted international protection to the third country national concerned. If, following the consultation, it is established that the third country national still benefits from international protection in the consulted Member State, expulsion is possible only to this Member State. In that case this Member State is obliged to readmit the third-country national concerned without formalities. The new paragraph 6 guarantees however that expulsion outside the European Union may still be possible if the conditions of Article 21 i of Directive 2004/83/EC are fulfilled. Evidently, in both cases mentioned above, the readmission mechanism cannot apply where a transfer of responsibility of the protection of the person concerned has taken place between the first and second Member State in accordance with their obligations under international instruments. B) Expulsion by the Member State where a long-term resident exercises the right to mobility according to Chapter III of the Directive – Article 22 In order to safeguard the respect of the principle of non-refoulement in cases where a long-term resident who is a beneficiary of international protection resides in the second Member State but has not yet acquired long-term resident status in this Member State, the possibility of removal on the basis of Article 22 should be restricted to a removal to the first Member State. However, according to the second subparagraph of Article 22(3a), the expulsion outside the European Union would still be possible if the conditions of Article 21 i of Directive 2004/83/EC are fulfilled.
Amendment of Article 25 In order to facilitate the necessary information exchange between Member States as required by Article 12(3a), Article 25 should be amended accordingly so as to allow the use of the network of national contact points also for that purpose.
1. Proposal for a