Ce document contient les commentaires du HCR sur les aspects spécifiques de la proposition de la Commission européenne. Le HCR appelle les États à appliquer tous les concepts juridiques pour déterminer le statut de réfugié ou de protection subsidiaire en pleine conformité avec le droit international relatif aux réfugiés et aux droits de l'homme, y compris le droit de l'UE et les droits fondamentaux de l'UE.
The proposal would convert the current recast Qualification Directive (QD) into a Regulation, giving it directly binding effect in EU Member States. The proposal contains both welcome clarifications and provisions that are of concern. Some of UNHCR’s concerns regarding the current recast QD, which were expressed on previous occasions, remain unresolved.
The purpose of the proposal is to further harmonise the criteria by which Member States define who qualifies for international protection, i.e. refugee as well as subsidiary protection status, as well as their rights; to achieve more convergence of asylum decisions in the EU; to ensure international protection is granted only for as long as the grounds for persecution or serious harm persist without affecting persons’ integration prospects; and to address onward movement of beneficiaries of international protection.
UNHCR supports the aims of the proposal and welcomes a number of important clarifications that the proposal makes. However, UNHCR is concerned about some of the measures introduced to achieve these aims as well as a number of provisions retained from the current recast QD. These concerns include:
The proposal introduces a mandatory review of protection status, in particular on two occasions:
UNHCR has consistently underlined that refugees and beneficiaries of subsidiary protection are entitled to a secure and stable status, which should not be subject to regular review. UNHCR has called on States to support the ability of people in need of international protection to attain local integration through the timely grant of a secure legal status and residency rights, and to facilitate their naturalization. Short-term residence permits and regular review of status creates legal uncertainty and is likely to impact on the integration prospects of refugees. Finally, UNHCR expects the proposed reviews to place a heavy administrative burden on Member States, many of which are already struggling with large backlogs of asylum applications. UNHCR also questions the added value of mandatory reviews, as Member States always retain the right to review international protection needs and to revoke, end or refuse to renew status on certain grounds. UNHCR therefore recommends that the provisions on mandatory status review are deleted.
Withdrawal of international protection and exclusion from refugee status
Like the current recast QD, the proposal contains provisions for the revocation of, ending of and refusal to renew refugee status which depart from the framework of the 1951 Convention Relating to the Status of Refugees (the “1951 Convention”) by adding grounds for exclusion which are not foreseen in international refugee law. Similarly, the proposed provision on exclusion from refugee status retains wording which goes beyond the text of the 1951 Convention. In addition, a new provision proposes that exclusion from status would depend exclusively on the conditions set out in the new Regulation, and explicitly excludes any additional proportionality assessment.
UNHCR continues to advocate for provisions related to the withdrawal of international protection to be made fully consistent with the 1951 Convention. The same is true for exclusion clauses, which need to be brought fully in line with the wording of the 1951 Convention. Those provisions that extend the grounds for the revocation of, ending of and refusal to renew refugee status, as well as for exclusion beyond what is foreseen in international refugee law should not be adopted.
The proposal maintains the requirement for applicants to substantiate their claims at the earliest opportunity or risk an adverse credibility finding. In addition, the proposal introduces an obligation on the applicant to substantiate the application, as well as to cooperate with the determining authority. Thus, the recast QD’s parallel provision, which stipulates the duty of the Member State to assess the relevant elements of the application in cooperation with the applicant, has been replaced by a provision that places obligations solely on the applicant. UNHCR considers that due consideration should be given to the circumstances that may lead to delays in applying for international protection or appropriately substantiating the claim as there may be justifiable reasons for the delay. In addition, the duty to ascertain and evaluate all relevant facts is shared between the applicant and the determining authority. It may be necessary for the determining authority to use all means at its disposal to produce the necessary evidence in support of the application. In cases where such independent research is not successful, or where the applicant’s statements are not susceptible of proof, the applicant may be given the benefit of doubt, if his or her account appears credible, in line with the case law of the European Court of Human Rights (ECtHR).
Amendment of the Long-Term Residents Directive
According to the proposal, the five year period of legal residence required as a precondition for long term residence in a Member State under the Long-term Residents Directive (LTRD) is to re-start every time a person moves irregularly to another Member State. This is introduced for the purpose of “providing for additional disincentives” to “addressUnknown shortcode type : … secondary movement of beneficiaries of international protection”.
UNHCR considers that incentives, rather than sanctions, should be used to reduce onward movement and advocates for the management of movement to be seen in the context of integration. It considers that refugees who are self-reliant should be able to establish themselves in any EU Member State after six months of having been granted international protection.
Internal protection checks
Under the proposal, assessing the availability of internal protection is a mandatory part of the asylum procedure.
UNHCR recalls that an internal protection or flight alternative is neither a stand-alone principle nor an independent test for determining refugee status. Further, requiring internal protection checks is not necessary to achieve more efficient asylum procedures. To the contrary, such a requirement could increase the scope of inquiries that decision-makers must undertake in each case, potentially entailing delays without strengthening the quality of decision-making. UNHCR therefore recommends that internal protection checks continue to be optional.
Sur place refugees
The proposal requires Member States normally not to grant protection status where an applicant has filed a subsequent application if the risk of persecution or serious harm is based on circumstances that s/he has created by his or her own decision since leaving the country or origin.
UNHCR recalls that the “sur place” analysis does not require an assessment of whether the asylum-seeker has created the situation giving rise to persecution or serious harm by his or her own decision. Rather, as in every case, what is required is that the elements of the refugee definition are fulfilled, noting that an assessment on the need for international protection is forward-looking. Despite the fact that this provision is to be applied without prejudice to the 1951 Convention and the European Convention on Human Rights (ECHR), to avoid confusion and a possible breach of both instruments, it is recommended that the provision is deleted.
Differentiation between statuses
The proposal differentiates between refugees and beneficiaries of subsidiary protection in three main areas:
Linking social assistance to integration measures
Under the proposal, Member States may make integration measures obligatory by making social assistance dependent on participation in integration measures.
UNHCR is concerned that linking social assistance to integration measures may result in hardship. Further, individual circumstances may make it difficult for beneficiaries of international protection to participate in integration measures. UNHCR recalls that integration is a two way process, requiring participation of both the person and the host society, whereby integration measures must be available, accessible, and affordable or free of charge. The respective provision may therefore be clarified to this effect.UNHCR has welcomed the alignment of the two statuses as one of the previous (2013) recast QD’s main goals, and continues to consider that differentiation is in most cases not justified. Where flight experiences and protection needs are very similar, differentiation may amount to discrimination under EU law and the ECHR. For these reasons it is suggested that the two statuses are aligned to decrease the risk of violations of rights and consequent litigation.