European Union Asylum Qualification Directive

A response

August 2006

Introduction

Law Centre (NI) is a voluntary organisation which provides specialist legal services to advice organisations for disadvantaged individuals. Five specialist lawyers carry out our immigration and asylum work and we represent in a substantial number of all immigration appeals in Northern Ireland.  We are the main advisers on immigration, asylum and nationality law in Northern Ireland.  We operate an advice line five days a week and answer queries in relation to all aspects of immigration law.  We also facilitate the Immigration Practitioners’ Group which consists of lawyers and voluntary sector organisations. It meets regularly to discuss all aspects of immigration law and practice in Northern Ireland.  Our written submissions have been informed by our knowledge and experience.  We also endorse the written submissions of ILPA, of which we are a member.

General comments

It should be noted before answering the specific questions posed by the Home Office that, given the breadth of the consultation document, it was regrettable that the normal twelve weeks consultation document was reduced to nine weeks.  It is not clear why the consultation document period did not commence three weeks earlier thus allowing a full twelve weeks and still allowing the necessary time to “reflect upon the comments received”.  In addition, given the composite nature of immigration law in the UK which is reflected in the concurrent application of the UK immigration rules, relevant regulations and Home Office procedure rules and instructions, it is very regrettable, particularly given the shortened consultation document period, that the draft procedural guidance was not included in the consultation document.  It is clear from the consultation document that the procedural guidance will be integral to the government transposition of the Qualification Directive (the ‘Directive’) into UK law.  As noted in the specific comments that follow, it is not possible in many instances to fully comment on these proposals as many of the issues are contingent on the procedural guidance. 

Law Centre (NI) would also like to record its objection to Article 17 of the Directive, as referred to in paragraph 7.5 of the consultation document.  We are opposed to any suggested derogation, from the absolute rights enshrined in Article 3 of the European Convention on Human Rights, which this article implies.

1. Does current UK policy broadly reflect the directive        

In theory current UK asylum law may broadly reflect the Directive, but unfortunately largely not in experience and practice.  Indeed, this question is interesting particularly since the consultation document has a large number of references to practices which the Home Office states it currently implements.  The consultation document therefore states that the relevant issue in the Directive will not impact on policy and procedure.  However, many of the practices and procedures which the Home Office claims to be its own, are not in fact being implemented.

	For example, at page seventeen of the consultation document, in relation to Article 6: Actors of Persecution or Serious Harm, the consultation document states that the Home Office already recognises that Actors of Persecution can include state and non-state actors (which is indeed the case), but goes on to state (in paragraph 5.7) “as well as rogue officials abusing their position of authority”.  In fact, the opposite is often the case, as Home Office asylum refusal letters regularly use the contention that a stated abuse is not persecution as it is only a rogue official and not endorsed by the state in question.  Regardless of the reference in the Asylum Policy Instructions (API’s) in Law Centre (NI) experience, Home Office practice does not reflect the contention set out in paragraph 5.7 of the consultation document.
	At paragraph 5.15, page twenty of the consultation document in relation to Article 9: Actors of Persecution, the consultation document states that the implementation of Article 9 will not impact on Home Office policy or current practice.  The Article is much broader in parts than current UK policy, for example, at paragraph 5.14 the specific stating of sexual violence as an act which can be persecution.  In addition, current UK policy in relation to punishment for refusal to perform military service in a conflict is arguably more restrictive than the Directive which is referred to at paragraph 5.14 of the consultation document.
	At pages twenty-three and twenty-four of the consultation document, it is stated at paragraph 6.4 that the provisions of Article 4: Assessment of Facts and Circumstances “closely reflect the asylum and determination process in the United Kingdom”.  Furthermore, at paragraph 6.5 of the consultation document, it is stated that Section 8 of 2004 Asylum and Immigration (Treatment of Claimants, etc) Act (‘section 8’) is compatible with the provisions of Article 4.  The consultation document therefore uses this as a reason for continuing to apply section 8.  The consultation document goes on to state at paragraph 6.6 that Article 4 “closely” reflects Home Office practice on credibility assessment and that Article 4 will not result in changes in consideration of cases.  However, these statements misinterpret Article 4, which is a comprehensive, although not exhaustive, list of the issues to be taken into account when assessing an asylum claim.  Draft immigration rule 339N refers to section 8 of the 2004 Act.  No provision is made within the Directive for a person’s credibility to be assessed with regard to the provisions contained in section 8.  The preamble to the Directive states that it is to introduce minimum standards that Member States should adhere to and that Member States should be able to introduce more favourable provisions.  Furthermore Article 3 of the Directive confirms that more favourable standards can be introduced by Member States (insofar as those standards are compatible with this Directive).  Article 4 of the Directive sets out the “assessment of facts and circumstances by an applicant for international protection”, importantly with no reference to section 8-type assessment of an individual’s credibility.  Paragraph (6) to the preamble of the Directive states:

“The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States”.  (Our emphasis.

By imposing a section 8 assessment of credibility the UK would be acting contrary to the stated “main objective” of the Directive.  Therefore to include, in the immigration rules, reference to a section 8 assessment of an applicant’s credibility would be below the standards set out in the Directive.  It introduces a much higher threshold than that contained in the Directive and as such is contrary to the spirit and letter of the Directive.  These proposed changes to the immigration rules do not satisfactorily implement the Directive.

At page thirty-one of the consultation document in relation to Member States’ obligations, Article 20: General Rules, the specific listing of vulnerable persons in the Directive (as set out in paragraph 8.1) is very welcome.  However, the proposed Home Office response to this is inadequate in that it is relying on disparate guidance on these issues.  At paragraph 8.5 of the consultation document, the Home Office recognises that it only “broadly” currently reflects the requirements of Article 20.   Law Centre (NI) would therefore argue that it is all the more essential that the Article is replicated in full in the new Regulations, to ensure that the current Home Office “piecemeal” approach to this issue is replaced by the comprehensive approach required by the Directive.

2. WHETHER THE PROPOSED CHANGES TO THE IMMIGRATION RULES AND CONTENTS OF THE DRAFT REGULATIONS SATISFACTORILY IMPLEMENT DIRECTIVE?

In general the actual proposed changes to the immigration rules and draft regulations do largely implement the new Directive satisfactorily.  Obviously the occasions where the UK government is confirming that it is continuing to apply the current more generous interpretations are to be welcomed.  However, this is wholly in line with the Directive.  The preamble and Article 3 of the Directive emphasise that these are only minimum standards and it is clear that Member States cannot go below the benefits of the Directive.

However, there are some key omissions, particularly throughout the consultation document where the UK government purports to have replicated wording from the article on the Directive, in many instances this is not the case and the changes of wording are quite significant:

Article 8:  Internal Protection

Draft immigration rule 339O(i) states that “the Secretary of State will not make a grant of asylum or humanitarian protection …” whereas Article 8(1) of the Directive says merely that the Secretary of State “may”.  The draft immigration rules should therefore read “may not make”, therefore allowing the Secretary of State to consider each individual case on its own merits and implement the Directive satisfactorily on this issue.

Immigration rule 339O(iii) states that “(i) applies notwithstanding ….”, however Article 8(3) of the Directive states that “(i) may apply notwithstanding ….”  By not including the word “may” the immigration rules are preventing the Secretary of State from considering each individual case on its own merits.  It is not faithfully implementing the provisions within Article 8(3) of the Directive.  The draft rules therefore propose to implement a less favourable provision than that contained in the Directive and as such the UK is not satisfactorily implementing the Directive on this point.

Article 9: Actors of Persecution   

Paragraph 5.15 at page twenty of the consultation document states that the UK government “will not treat the list (in relation to actors of persecution) as being exhaustive”.  It is essential that this phrase or similar is included in the statutory instrument.  Furthermore, the statutory instrument should make explicit that lesser forms of harm may constitute persecution in certain circumstances (as set out at paragraph 5.15 of the consultation document).  If this is not done, there is a very real danger that this list will be seen as exhaustive by Home Office caseworkers.  

In the statutory instrument draft Regulation 5, titled “Acts of Persecution”, does not include “acts of a gender-specific or child-specific nature” as provided for in Article 9(2)(f) of the Directive.  Whilst Article 2 states that “acts of persecution …. can, inter alia , take the form of; …..”  .  Law Centre (NI) feels that failure to specifically refer to all those acts contained in Article 9(2)(f), the UK Government would be providing less favourable standards for applicants vis a vis other Member States, contrary to Article 3 of the Directive. 

Article 10: Reasons for persecution

In the statutory instrument at Section 6(1), the regulation does not replicate the Directive. It omits the phrase “in particular” which is used in the Directive from Article 10 (1) (a) through to 10 (1) (f) excluding 10 (1) (e).

 For example at Article 10 (1)(a) the concept of race:                    

“in particular include considerations of colour, descent, or membership of a

 particular ethnic group”.

The proposed regulation, however, reads:

“The concepts of race shall include considerations of colour, descent, or membership of a particular ethnic group”.

There is a real danger that the omission of “in particular” in the sub paragraph and succeeding ones, will result in Home Office caseworkers reading the shall as prescriptive rather what is intended by the Directive, which clearly is non-exhaustive.

Article 30:  Unaccompanied Minors

At page thirty-four of the consultation document, in relation to Article 30: Unaccompanied minors; Article 30 imposes a new duty on Member States specifically in relation to unaccompanied minors.  In particular it explicitly requires that “Member States protect and act in the best interest of the child”.  It is wholly inadequate therefore, for the Government to rely on existing legislation in relation to children to satisfy the requirements of this Article which significantly enhances the rights of unaccompanied minors.   

3. WHETHER THE UK SHOULD APPLY THE PROVISIONS OF THE DIRECTIVES TO ALL ASYLUM CLAIMS IN THE SYSTEM (INCLUDING AT APPEAL) ON 10 OCTOBER 2006 OR LIMIT ITS APPLICATION ONLY TO NEW ASYLUM CLAIMS LODGED ON OR AFTER 10 OCTOBER 2006

Law Centre (NI) strongly supports the application of the Directive to all asylum claims in the system on 10 October 2006.  To do otherwise would be acting contrary to the spirit of the Directive and effectively, applying less favourable provisions than those set out in the Directive. 

Regulation 1(2) of the draft statutory instrument, states that the regulations do not apply to those applications lodged with the Secretary of State prior to the coming into force of the regulations.  We believe that they should apply to all applications in the system at the date of transposition, 10 October 2006.  The purpose of this is to prevent further bureaucracy within the asylum system in the Home Office and to enable those whose applications are under consideration on 10 October 2006 to benefit from the more favourable provisions contained in the minimum standards within the Directive.  To do otherwise could result in discrimination against applicants who lodged claims before 10 October 2006, vis a vis applicants who lodged after 10 October 2006.  

In addition, draft immigration rule 339A(x) states that where an application is made “on or after the 21 October 2004, the Secretary of State will revoke or refuse to renew …..”, no reference is made to this date in the Directive.

Draft immigration rule 339G(iii) states that humanitarian protection granted “on or after the 21 October 2004 will be revoked and not renewed ….”.  There is no reference to this date in the Directive. 

4. SHOULD THE DIRECTIVE APPLY TO CLAIMS FROM EU NATIONALS?

Yes. Again, as above in response to question 3, Member States must interpret EU law in a way that does not reduce the benefits of EU law as it relates to EU citizens.

5. WHETHER THERE ARE ANY AREAS NOT COVERED IN THE CONSULTATION DOCUMENT DOCUMENT?                     

As stated in the introduction to this consultation document response, it is a fundamental omission that the draft Home Office guidance to caseworkers (for example the amended APIs) were not included in the consultation document .  The guidance is integral to the UK government’s proposed implementation of the Directive, along with the immigration rules and new regulations. 

For example, at page twenty-two of the consultation document, in relation to Article 10 and the particular social group issue, given that this is quite a substantial change to Home Office policy, it is unacceptable that the consultation document is effectively silent as to what the new practice will actually be.  The guidance will therefore be the only way of implementing the new Directive and its omission is a failure to implement the Directive on this issue. 

In addition, as set out above, in several instances the consultation document claims to have replicated wording where it has not and the actual wording results in significant changes.

Conclusion

Law Centre (NI) welcomes the opportunity to respond to this consultation document.  If there is any further way in which we could contribute to this process we would welcome the opportunity to do so.  We look forward to receiving your response.

Law Centre (NI) Immigration Unit:

Maura Hutchinson, Fidelma O’Hagan, Buster Cox, Catherine Jackson