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II. WHOSE RULE OF LAW? AN ANALYSIS OF THE UK'S DECISION NOT TO OPT-IN TO THE EU ASYLUM PROCEDURES AND RECEPTION CONDITIONS DIRECTIVES

Published online by Cambridge University Press:  28 November 2011

Justine N Stefanelli
Affiliation:
Maurice Wohl Fellow in European Law in the Bingham Centre for the Rule of Law, at the British Institute of International and Comparative Law.

Extract

The United Kingdom (‘UK’) has indicated its intention not to opt-in to two proposals from the European Commission aimed at further developing the Common European Asylum System through the replacement of existing instruments on asylum procedures and reception conditions. The purpose of the European Union (‘EU’) amendment process is to establish rules that more closely align the legal framework for asylum in the Member States so that asylum seekers receive the same higher standard of treatment in any Member State in which they choose to make their application, and to address criticism that the Directives are incompatible with human rights obligations. The UK asserts that its asylum procedures satisfy the standards imposed by its obligations under international and European law, and does not view further harmonization of asylum matters at EU level as necessary or appropriate. Its decision not to opt-in raises issues regarding sovereignty, subsidiarity, the rule of law and European integration. This article will explore these issues, as well as provide an overview of select provisions from the proposals in light of UK asylum policy.

Type
Current Developments: European Union Law
Copyright
Copyright © British Institute of International and Comparative Law 2011

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References

1 Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers, COM(2008)815; Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection, COM(2009)554 final. The Directives as currently in force are: Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers, [2003] OJ L 31/18; Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L 326/13.

2 It implemented its obligations by introducing new legislation, but also through reliance on pre-existing legislation, which already complied with the obligations in the EU Directives. The procedures Directive was specifically implemented through: The Asylum (Procedures) Regulations 2007, SI 2007/3187, The Asylum and Immigration Tribunal (Procedure) (Amendment No. 2) Rules 2007, SI 2007/3170, The Special Immigration Appeals Commission (Procedure) (Amendment No. 2) Rules 2007, SI 2007/3370. The reception conditions Directive was specifically implemented through: The Asylum Support (Amendment) Regulations 2005, SI 2005/11, The Asylum Seekers (Reception Conditions) Regulations 2005, SI 2005/7.

3 Letter of 6 March 2009 from Phil Woolas MP, Minister of State, Home Office, to Lord Roper; House of Commons in its 2nd Report of the European Scrutiny Committee during Session 2010–11, para 13.5. There is some debate as to whether the current Directive would continue to apply, despite indications in the newest versions of the proposed amendments confirming the UK's position. Art 4a of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice reads that, if the UK does not make a notification of its intention to opt in to the measure at issue, the existing measure will cease to be binding on the UK. However, art 4a is drafted to deal with the situation of a new measure to amend, rather than wholly replace (as is the case with the two Directives) the previously existing measure. It is therefore questionable whether a measure wholly replaced by recast legislation would continue to apply in the UK. This question, which was asked in the above-mentioned House of Commons report at para 13.16, was answered in the preambles to both revised proposals, whereby it was stated that indeed, the original Directives would continue to apply in the UK. Such a situation has not yet happened within the EU and it is impossible to tell how, in practice, these two regimes will operate.

4 Amended proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of asylum seekers (Recast), COM(2011)320 final (‘second RCD proposal’); Amended proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection status (Recast), COM(2011)319 final (second PD proposal). Three other pieces of EU legislation are also under review: Council Regulation 343/2003/EC ([2003] OJ L 50/1) determining the State responsible for examining an application for asylum (Dublin II) (UK has opted in to amended proposal); Council Regulation 407/2002/ ([2002] OJ L 62/1) EC laying down certain rules to implement Regulation (EC) No 2725/2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (UK has opted in), Council Directive 2004/83/EC ([2004] OJ L 304/12) 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 (the UK has opted in to this)—proposal is COM(2009)551 final.

5 Second RCD proposal, art 9(2).

6 Indeed, the Commission inserted into the proposal four entirely new articles concerning the issue of detention. Currently, the procedures Directive includes in art 18 a broad prohibition on the detention of individuals for the sole reason that they are making an asylum application.

7 Second RCD proposal, art 8(1) and (2).

8 Second PD proposal, art 31(3): (a) where complex situations of fact and law are involved; (b) where a large number of third country nationals or stateless persons simultaneously request international protection, and (c) where the delay is clearly attributable to the applicant's failure to cooperate in accordance with the Directive. The six and six rule may arguably be interpreted as a limit on the length of detention as well.

9 ibid art 31(6).

10 ibid art 31(5)(a).

11 ibid art 46.

13 Nationality, Immigration and Asylum Act 2002 c 41 (‘NIAA 2002’), s 68.

14 Clayton, G, Textbook on Immigration and Asylum Law (3rd Ed, OUP 2008)Google Scholar s 15.11.3, stating that although an asylum applicant has the same right to apply for habeas corpus as a British national, it is of little use in the context of challenging detention, as there is almost always a legal justification for detention in British statutory law.

15 Enforcement Instructions and Guidance (n 12) s 55.3.

16 ibid s 55.3.1.

17 In 2010, the UK received 17,790 applications for asylum (excluding dependents), 25 per cent of which were initially accepted. The Migration Observatory, briefing on ‘Migration to the UK: Asylum’, 23/3/2011.

18 DFT & DNSA—Intake Selection (AIU Instruction), s 2.2, available at <http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/detention/guidance/dftanddnsaintakeselection?view=Binary>. Indeed, approximately 70% of cases go through the fast track system (House of Lords EU Committee, ‘The United Kingdom opt-in: problems with amendment and codification’, report with evidence, 24 March 2009, HL Paper 55 at Q40, response of Mr Prince).

19 ibid s 2.2.2.

20 Council Regulation 343/2003/EC ([2003] OJ L 50/1) establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II).

21 Targets as noted by Home Office officials in meeting with the authors on 13 September 2011. Meeting notes are on file with the author.

22 Home Office Explanatory Memorandum concerning the proposal for a Directive of the European Parliament and of the Council on Common Procedures for Granting and withdrawing International Protection Status, submitted June 2011 by the Home Office (‘Home Office PD Memo’) para 42. The UK also evaluates all applications in order to determine whether they are clearly unfounded.

23 R v Secretary of State for the Home Department ex p Thangasara and Yogathas [2002] UKHL 36Google Scholar. ‘Clearly unfounded’ has also been interpreted to mean ‘unarguable’ in R (on the application of Razgar) v Secretary of State for the Home Department [2003] EWCA Civ 840; ZL and VL v SSHD [2003] 1 All ER 1062: ‘The test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not … if the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.’

24 NIAA 2002 s 94(3).

25 HL Paper 55 (n 18) Minutes of Evidence, at Q25 read in conjunction with Q6.

26 ibid Q6.

27 ibid Q28.

28 ibid Q36.

29 ibid Q22.

30 ibid Q37, 40.

31 ibid Q6, 24, 25.

32 House of Commons European Scrutiny Committee, 36th Report, Session 2010–12, HC 428-xxii, 14 July 2011, Ch 9, para 9.30.

33 (n 22) para 39. See also Explanatory Memorandum concerning the proposal from the Commission to the European Parliament and the Council on the recasting of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, para 23–4 (‘Home Office RCD Memo’).

34 ibid para 40.

35 ibid para 40.

36 ibid paras 42–5.

37 Protocol No 21 to the Treaty on the Functioning of the European Union.

38 (n 32) para 9.32.

39 ibid, quoting para 3.8, p 8 of the Commission's explanatory memorandum accompanying the revised procedures Directive.

40 (n 33) para 24.

41 R (On the Application of Saadi) v Secretary of State for the Home Department [2002] UKHL 41Google Scholar; [2002] 4 All ER 785; [2002] 1 WLR 3131 upheld on appeal to the European Court of Human Rights, Saadi v United Kingdom, Application No 13229/03, Judgment of 29 January 2008 (Grand Chamber).

42 (n 22) paras 34–7. It feels similarly about its framework for the identification and protection of vulnerable applicants (Home Office RCD Memo (n 33) para 34–5).

44 Ministry of Justice, ‘Proposals for the Reform of Legal Aid in England and Wales’ (Nov 2010) para 4.223. The paper goes on to explain that the other available routes to which it refers are the voluntary sector organizations, which provide free and independent legal advice on applications.

45 The Immigration Advisory Service, which represented approximately one-third of legally-aided immigration and asylum claims in England and Wales and was the last remaining large provider of legal assistance to whom clients could be directly referred, closed its doors in 2011 allegedly due to changes in legal aid (see The Guardian, ‘Tens of thousands lose support as Immigration Advisory Service closes’, 11 July 2011, available at <http://www.guardian.co.uk/law/2011/jul/11/immigration-advisory-service-closes-blames-government>). Similarly in 2010, Refugee and Migrant Justice, the largest national not-for-profit provider of advice and representation in the asylum field at the time, was forced to close after allegedly not receiving payment it was owed by the Legal Services Commission (see The Guardian, ‘Funding crisis over legal aid threatens UK asylum chaos, ministers are warned Migrants charity goes into administration’, 30 May 2010, available at <http://www.guardian.co.uk/uk/2010/may/30/asylum-refugee-migrant-justice>).

46 Proposed procedures Directive, explanatory memorandum, p 2; proposed reception conditions Directive, explanatory memorandum, p 3.

47 HL Paper 55 (n 18) Q6.

48 (n 22) para 14.

49 House of Lords Select Committee on the European Union, Home Affairs (Sub-Committee F), ‘Evidence session on Developments in EU Policies on Immigration and Asylum’, 14 September 2011, 11.00am, response to question 31.

50 BBC News, ‘William Hague “being held back by Lib Dems” on Europe’, 10 September 2011, available at <http://www.bbc.co.uk/news/uk-politics-14863588>.

51 ibid.

52 2011 c 12. The Act received Royal Assent on 19 July 2011.

53 The so-called ‘referendum lock’ entered into force on 19 August 2011.

54 Clause 18: ‘Status of EU law dependent on continuing statutory basis. Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.’ The sovereignty clause entered into force on 19 July 2011.

55 The exact origin of the notion of Parliamentary sovereignty is under intense debate. In that regard, see House of Commons, European Scrutiny Committee, 10th Report of Session 2010–11, ‘The EU Bill and Parliamentary Sovereignty’ HC 633-I paras 49–63. Indeed, such was the concern that the Government amended the Explanatory Notes to Clause 18 and removed reference to the common law principle of Parliamentary sovereignty.

56 ibid para 30.

57 ibid para 32.

58 ibid. This argument was advanced in 2002 before the Divisional Court of the High Court in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) by Eleanor Sharpston QC (as she was then known) who argued that EU law was a higher legal authority entrenched autonomously in the UK by virtue of the European Communities Act 1972. This argument was rejected by Lord Justice Laws who cited Parliamentary sovereignty: ‘…there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom.’ (para 59). Because this was a first-instance decision, there was some concern by the Government, in the context of drafting the sovereignty clause, that it could be overturned on appeal.

59 (n 55) ch 5.

60 European Convention on Human Rights (Withdrawal) Bill 2010–11. The text of the Bill is currently not public.

61 One commentator cites the decision by the Strasbourg Court to give prisoners the right to vote in the UK as a motivating factor behind the Bill. This was an issue before the Strasbourg Court in 2005 in Hirst v United Kingdom (No 2) [2005] ECHR 681, and again in 2010 in Greens and MT v United Kingdom [2010] ECHR 1826.

62 Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, OJ 2009 C-295/1. Thus far, the UK has opted-in to Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings ([2010] OJ L 280/2) and the proposed Directive of the European Parliament and of the Council on the right to information in criminal proceedings COM(2010)392 final.

63 (n 33) paras 25–29.

64 ibid paras 30–33. The Memorandum states: ‘We do not believe that a requirement to “duly justify” any differences from social security rates to be [sic] necessary.’