Contrary to the limited lobbying engagement of pro-migrant groups at the drafting stage, during the decision-making stage three groups actively lobbied at the Council. This subsection, therefore, investigates the preference attainment of ECRE, AI Europe, and CCOEMA towards the Council. For this analysis, the various recommendations, letters, and comments of the pro-migrant groups are compared with the Qualification Directive that has been adopted by the Council.
On the general provisions of the directive, all three pro-migrant groups provided suggestions. While all of them (AI Europe 2002a: 2; CCOEMA 2002: 2; ECRE 2001: 4) failed in convincing the Council to include EU citizens within the scope of the Council directive (Art. 1), the request of AI Europe (2002a: 1) for the inclusion of beneficiaries of subsidiary protection has been met. Moreover, ECRE (2001: 9), AI Europe (2002a: 2), and the Council (Art. 2 (g)) concurred that the member states are obliged to examine any application for asylum under the Geneva Convention first. The recommendations to include in the scope of the directive those who are unable or unwilling to avail themselves of the protection of their country of origin (CCOEMA 2002: 3), unmarried partners and children of unmarried partners (AI Europe 2002a: 3; CCOEMA 2002: 3) are also reflected in the Council directive (Art. 2 (e), (h)). Their request to consider any children regardless their age and any direct line relatives, however, was not met by the Council (AI Europe 2002a: 3; CCOEMA 2002: 3). The results of the documentary comparison are merged in the following table.
Council Directive ECRE AI Europe CCOEMA
Art. 1 Subject matter – include EU citizens
+ include refugees and beneficiaries of subsidiary protection
Art. 2 Definitions + examine asylum claim under Geneva Convention
before examining if the person is eligible to subsidiary protection
+ refugee status: ‘recognition’ by
– include direct line relatives of the
member state – include children
regardless their age + include unmarried
partners
applicant
+ include children of the applicant’s spouse or stable partner + persons eligible for
subsidiary protection if risk to suffer serious harm in country of origin
Table 17: Comparison of recommendations of pro-migrant groups and Chapter 1 of Council Directive On Chapter 2 of the directive, assessment of applications for international protection, the three pro-migrant groups provided detailed advice. The following recommendations of the pro-migrant groups are reflected in the Qualification Directive: the benefit of the doubt principle (AI Europe 2002a: 3; ECRE 2001: 4), the concept of burden sharing (AI Europe 2002a: 3; ECRE 2001: 4), the inclusion of non-state actors among sources of persecution (AI Europe 2002a: 2; ECRE 2001: 5), the requirement of assessing the effectiveness of state protection measures (ECRE 2001: 5), and the obligation to examine the reasonableness of internal protection (ECRE 2001: 2). In contrast, the groups failed in convincing the Council of abolishing the ipso facto refusal of the right to engage in politics for the sake of refuge sur place (AI Europe 2002a: 3; CCOEMA 2002: 4; ECRE 2001: 5), of the exclusion of non-state actors from sources of protection (AI Europe 2002a: 5; CCOEMA 2002: 4; ECRE 2001: 6), of the requirement to provide effective access to internal protection areas (AI Europe 2002a: 5; ECRE 2001: 6), and of a detailed list of how to assess the effectiveness of internal protection (CCOEMA 2002: 4; ECRE 2001: 6-7). The following table summarises these findings.
Council Directive ECRE AI Europe CCOEMA
Art. 4 Assessment of facts and circumstances
+ benefit of the doubt
+ burden-sharing: applicant and MS Art. 5 International
protection needs arising sur place
– applicant should not ipso facto be refused the right to engage into politics
Art. 6 Actors of persecution or serious harm
+ include non-state actors as actors of persecution
Art. 7 Actors of protection
– exclude international organisations and quasi-state authorities from actors of protection
+ effectiveness of state protection measures needs to be assessed
Art. 8 Internal protection further criteria for
reasonableness: – protection by de jure
authority
– internal protection area
– internal protection: if access to protection area
– internal protection: if effective and well- established
needs to be safely, legally, dignifiedly accessible
– area needs to be free from conditions that force claimant back to where he risks serious harm
– in this area core human rights enshrined in Geneva Convention need to be guaranteed + examine present
situation there and personal conditions
Table 18: Comparison of recommendations of pro-migrant groups and Chapter 2 of Council Directive With regards to the provisions that define how asylum-seekers qualify for refugee status, the recommendations of the pro-migrant groups and the Council directive resemble each other in few clauses. This applies to the definition of persecution as well-founded fear of ‘serious’ harm (AI Europe 2002a: 6) and the characterisation of a social group by its innate characteristics such as gender related characteristics and sexual orientation (AI Europe 2002a: 6). It also regards the inclusion of a de facto political attribution by the persecutor in the definition of political opinion (ECRE 2001: 8) as well as concretisation of the circumstances under which refugee status cedes (AI Europe 2001a: 5; Khan 2001: 2). The reference to any human rights abuses as stipulated by the Bill of Human Rights (ECRE 2001: 7) and the inclusion of numerous provisions that shall clarify the cessation of and exclusion from refugee status, however, are not reflected in the Qualification Directive (CCOEMA 2002: 5; ECRE 2001: 8-9). A more detailed analysis is entailed in the following table.
Council Directive ECRE AI Europe CCOEMA
Art. 9 Acts of persecution
– refer to core human rights enshrined in Bill of Human Rights
+ persecution: well- founded fear of ‘serious’ harm not unjustified harm Art. 10 Reasons for
persecution
– broad and inclusive definition of social group
+ include de facto attribution by the persecutor
+ social group: defined by an innate
characteristic
Art. 11 Cessation – consider strong family,
social, and economic links in reception country – concretise significant and non-temporary change of circumstances + change of circumstances must be of such a significant and non-temporary nature that the person does not face serious harm
refugee status falling within the scope of Article 1F Geneva Convention shall lead to exclusion
– no automatic exclusion of family members
concerning the exclusion of applicants who receive protection or assistance from organs or agencies of the UN other than the UNHCR
Table 19: Comparison of recommendations of pro-migrant groups and Chapter 3 of Council Directive With Chapter 5, CCOEMA (2002: 5) was successful in convincing the Council (Art. 15 (a)) of including death penalty among the forms of serious harm that qualify for subsidiary protection. On the contrary, CCOEMA (2002: 5) remained unsuccessful in its efforts of applying similar cessation clauses to refugees and beneficiaries of subsidiary protection to guarantee the stability of the latter status.
Council Directive CCOEMA
Art. 15 Serious harm + include death penalty as one of the reasons for serious harm
Art. 16 Cessation – apply similar cessation clauses as those that apply to refugees to guarantee
stability of the subsidiary protection status
Table 20: Comparison of recommendations of pro-migrant groups and Chapter 5 of Council Directive Concerning the provisions on subsidiary protection status, AI Europe (2002a: 7) recommended the inclusion of an express obligation that ensures subsidiary protection for persons who do not fall within the scope of the Geneva Convention but, nevertheless, are in need of international protection. In addition, ECRE (2001: 10) asked for a clause that clarifies that it is the duty of the member state which has granted protection status to demonstrate that the person concerned has ceased to be in need of protection. Both of these requests have been met by the Council.
Council Directive ECRE AI Europe
Art. 18 Granting of subsidiary protection status
+ express obligation to provide subsidiary protection Art. 19 Revocation of,
ending of, or refusal to renew subsidiary protection status
+ MS bear the burden of proof to establish cessation of subsidiary protection
Table 21: Comparison of recommendations of pro-migrant groups and Chapter 6 of Council Directive On Chapter 7 of the Qualification Directive, content of international protection, the pro- migrant groups provided very detailed comments. The groups, however, were successful on only few provisions; namely, the extension of the principle of non-refoulement to beneficiaries of subsidiary protection (AI Europe 2002a: 9; CCOEMA 2002: 5) as well as equal treatment of beneficiaries enjoying international protection such as, access to health care and recognition of diplomas, qualifications, and other certificates (AI Europe 2003: 5). In
contrast, the requests for loosening the non-refoulement clause and referring to international conventions in this regard have not been met by the Council (AI Europe 2002a: 10; CCOEMA 2002: 5). Moreover, ECRE (2001: 4) and AI Europe (2003: 2) failed in convincing the Council of automatically granting international protection to accompanying family members. The three groups (AI Europe 2003: 1-6; CCOEMA 2002: 5-6; ECRE 2001: 9-10) also remained unsuccessful in lobbying for equal rights/access to residence permits, travel documents, employment, housing, and integration facilities. Finally, AI Europe (2003: 5) and ECRE (2001: 10) have failed in convincing the Council of having unaccompanied minors exclusively represented by legal guardians. A detailed overview of this analysis is presented in the subsequent table.
Council Directive ECRE AI Europe CCOEMA
Art. 21 Protection from refoulement
+ non-refoulement also applies to beneficiaries of subsidiary protection
– refer to international law as regards absolute character of non- refoulement principle
– delete ‘in accordance with their international obligations’
Art. 23 Maintaining family unity
– international protection status is granted
automatically to the accompanying family members – inclusion of close
relatives shall not be left to discretion of MS
Art. 24 Residence permit – equal validity of residence permits for refugees and beneficiaries of subsidiary protection
– automatically renewable
Art. 25 Travel documents – equal access to travel
documents Art. 26 Access to
employment
– equal access to the labour market, employment-related education opportunities and vocational training
– under equivalent conditions as nationals Art. 27 Access to education + equal access to procedures for recognition of qualifications
Art. 29 Health Care + equal access to health
care under the same conditions as nationals Art. 30 Unaccompanied
minors
– represent unaccompanied minors by legal guardian only
– refer to Convention of the Rights of the Child Art. 31 Access to
accommodation
– equal access to appropriate housing under the same conditions as nationals Art. 33 Access to
integration facilities
– equal access to integration programmes
This comprehensive comparison of the recommendations tabled by ECRE, AI Europe, and CCOEMA and the final directive adopted by the Council has revealed that they reached a rather low preference attainment rate. AI Europe, by comparison, forwarded the highest number of recommendations to the Council and achieved about 44 per cent of its goals. ECRE and CCOEMA, on the contrary, achieved less than one third of their political goals. Recapitulating, at drafting stage, the overall preference attainment rate was 65 per cent. On the final directive, the average preference attainment rate of all three groups is much lower; namely, about 34 per cent. Towards the Council, the groups have been especially unsuccessful with the chapter on the content of international protection, which is the most comprehensive chapter of the directive. Again, putting the results of the documentary comparison into numbers exclusively serves the purpose of a clear illustration. This arithmetic approach does not take into consideration diverging weightings between the different provisions but treats each provision equally.
As the recommendations of the pro-migrant groups are of non-binding nature, their preference attainment rate needs to be viewed in light of the content of the Geneva Convention (UN General Assembly 1951) which the EU member states as state parties are bound to as well as the UN Handbook (UNHCR 1992) and recommendations of the UNHCR (2001a; 2002a; 2002b) that were to guide the EU member states.
Since the UNHCR has long been dedicated to promoting respect for international protection norms in EU asylum policies, it does not come as a surprise that ECRE and the UNHCR were concordant on a great number of provisions (more than 94 per cent). The following itemisation lists those provisions on which not only ECRE and the UNHCR but also the Commission agreed:
§ central authority decides about asylum applications (Guideline 192 (iii));
§ inability or unwillingness to return to country of origin is required to apply for refugee status (Guidelines 97-101):
§ international protection needs arising sur place (Guidelines 94-96); § non-state actors are included among sources of harm (Guideline 65);
§ nature of persecution: disproportionate and discriminatory prosecution (Guidelines 54, 55, 59); ethical, moral, or philosophical objections to military service (Guideline 170);
§ reasons for persecution: broad interpretation of race, nationality, and social group (Guidelines 68, 74, 79);
§ reasons for cessation of refugee status: voluntary return to country of origin (Guideline 118); fundamental and durable changes in country of origin (Guideline 135);
§ reasons for exclusion from refugee status: commitment of war crimes, crimes against humanity, serious non-political crimes, and acts that contradict the principles of the UN (Guidelines 146 and 162);
§ principle of non-refoulement (Geneva Convention Art. 33).
Provisions regarding persecution on grounds of objecting to serve in military actions that are illegitimate in international law (Guideline 171) and persecution based on the attribution of a certain political opinion to a person (Guideline 80) as well as guidelines that help clarify the severity of crime (Guidelines 150, 152), as recommended by ECRE and the UNHCR, have not been considered by the Commission.
The recommendations of the pro-migrant groups that addressed the Council, again, were widely in line with the comments and observations of the UNHCR. They concur in 90 per cent of the cases. On the subsequent provisions the groups, the UNHCR, and the Council were accordant:
§ obligation to examine asylum claim under Geneva Convention (UNHCR 2002a: 2);
§ family definition: include unmarried partners, children of the applicant’s spouse or stable partner (UNHCR 2001a: 5; 2002a: 3);
§ subsidiary protection: if risk of serious harm in country of origin (UNHCR 2001a: 6); § assessment of facts: burden-sharing and benefit of the doubt (UNHCR 2001a: 7; 2002a: 6); § sources of harm: include non-state actors (UNHCR 2001a: 8);
§ sources of protection: effectiveness of state protection measures needs to be assessed (UNHCR 2001a: 4);
§ persecution: well-founded fear of ‘serious’ harm not unjustified harm (UNHCR 2001a: 8); § social group: defined by innate characteristic and attribution by persecutor (UNHCR 2002b:
4; 2002a: 10);
§ reasons for cessation of refugee status: fundamental and durable changes in country of origin (Guideline 135);
§ reasons for exclusion from refugee status: criminal offences falling within the scope of Article 1F Geneva Convention (UNHCR 2001a: 8);
§ principle of non-refoulement (Geneva Convention Art. 33).
However, despite the tremendous support on the part of the UNHCR, the pro-migrant groups remained widely unsuccessful. This applies to the following provisions: the inclusion of
further close relatives as family members (UNHCR 2002a: 3), the right of the applicant to engage into politics when being outside their country of origin (UNHCR 2002a: 6), the exclusion of international organisations and quasi-state authorities from actors of protection (UNHCR 2001a: 9), and further criteria for assessing the reasonableness of an internal protection alternative (UNHCR 2002a: 8). This also holds for the equal validity of residence permits (UNHCR 2001a: 11) and equal access to employment (UNHCR 2001a: 12).