Proposal for a Council Directive 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 - Hoofdinhoud

COUNCIL OF PUBLIC Brussels, 8 November 2002

THE EUROPEAN UNION

13648/02

Interinstitutional File:

2001/0207 (CNS) i LIMITE

ASILE 61

OUTCOME OF PROCEEDINGS from : Asylum Working Party / SCIFA / Coreper on : 31 October 2002 / 6 November 2002 / 7 November 2002 No. prev. docs. : 12620/02 ASILE 54, 13623/02 ASILE 59 + ADD 1, 13646 ASILE 60 No. Cion prop. : 13620/01 ASILE 52 - COM(2001) 510 final i Subject : Proposal for a Council Directive 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

I

At their meetings respectively on 31 October, 5 and 6 November and 7 November 2002, the Asylum Working Party, the Strategic Committee on Immigration, Frontiers and Asylum and the Permanent Representatives Committee continued their examination of the above proposal.

Delegations will find in section II below the text of the proposal, with delegations' comments in the footnotes.

Changes to 12620/02 ASILE 54 are in bold.

13648/02 GT/bdn 1 II

Draft COUNCIL DIRECTIVE on minimum standards for the qualification of third country nationals and stateless persons

as refugees or as persons who otherwise need international protection and the content of

1

the protection granted

CHAPTER I General provisions

Article 1 Subject matter and scope

The purpose of this Directive is to lay down minimum standards for the qualification of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

Article 2 Definitions

For the purposes of this Directive:

(a) “International protection” consists of refugee and subsidiary protection status as defined in sub-paragraphs (d) and (f) 2 ;

(b) “Geneva Convention” means the Convention relating to the status of refugees done at Geneva

on 28th July 1951, as amended by the New York Protocol of 31 January 1967;

1 NL : parliamentary scrutiny reservation.

2 E : wanted the former version as in 11356/02 ASILE 40. A "true" definition of "international

protection" is needed.

(c) “Refugee” means a third country national who, owing to a well-founded fear of being

persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, and a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom

Article 14 does not apply;

(d) “Refugee status” means the recognition by a Member State of a third country national or a

stateless person as a refugee;

(e) "Person eligible for subsidiary protection” means a third country national or a stateless person

who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in article 15, and to whom Article 17 paragraph 1 and 2 does not apply, and is unable, or owing to such risk, is unwilling

to avail himself or herself of the protection of that country;

(f) “Subsidiary protection status” means the recognition by a Member State of a third country

national or a stateless person as a person eligible for subsidiary protection;

(g) “Application for international protection” means a request made by a third country national or

a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of

protection, outside the scope of this Directive, that can be applied for separately;

(h) (deleted)

(i) (deleted)

(j) "Family members" shall mean, insofar as the family already existed in the country of origin, the following members of the family of the beneficiary of refugee or subsidiary protection status who are present in the same Member State in relation to the application for international protection:

(i) the spouse of the beneficiary of refugee or subsidiary protection status or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens;

(ii) the minor children of the couple referred to in point (i) or of the beneficiary of refugee

or subsidiary protection status, on condition that they are unmarried and dependent 1 and

regardless of whether they were born in or out of wedlock or adopted as defined under

the national law;

(iii) (deleted) 2

(k) (deleted)

(l) "Unaccompanied minors" means third-country nationals and stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States;

1 D : scrutiny reservation.

S : reservation. These delegations want to delete the words "and dependent" which look as a supplementary criteria. E : the words "and dependent" are needed in order to take into account the case of minors who are independent ("emancipated") following a judicial decision.

2 Cion supported by I : insert a sub-paragraph (iii) modified as follows :

"(iii) Member States may also consider as "family members" : other close relatives who lived together as part of the family unit at the time of leaving the country or origin, and who were wholly or mainly dependent on the qualified beneficiary of international protection at that time,

[or alternatively :] first degree relatives in direct ascending line and the adult unmarried children when they are dependent on the qualified beneficiary of international protection;"

NL : reservation. Such a provision should be compulsory and say "Member States shall" and not "Member States may". The Chair supported by D/IRL/S : suggests to move a provision in line with former subparagraph (iii) to Article 21 A.

(m) "Residence permit" means any permit or authorisation issued by the authorities of a Member State, in the form provided for under that State's legislation, allowing a third country national or stateless person to reside on its territory;

(n) “Country of origin” means the country or countries of nationality or, for stateless persons, former habitual residence.

Article 3

(deleted)

Article 4 More favourable provisions

Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person in need of subsidiary protection, and in determining the content of

international protection, in so far as those standards are compatible with this Directive. 1

13648/02 GT/bdn 6 CHAPTER II Assessment of applications for international protection

Article 5 (deleted - its content has been transferred to Article 2)

Article 6 1

(see new Article 21A)

13648/02 GT/bdn 7 Article 7 Assessment of facts and circumstances

• 1. 

  Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the claim for international protection. In co-operation with the

  applicant it is the duty of the Member State to investigate the relevant elements of the claim. 1

• 2. 

  The applicant shall be considered to have presented all the necessary elements of his/her case, if he/she has provided statements and all documentation at his/her disposal regarding his/her age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and

  travel documents and the reasons for applying for international protection. 2

• 3. 

  The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:

(a) all relevant facts as they relate to the country of origin at the time of taking a decision

on the application; including laws and regulations of the country of origin and the

manner in which they are applied;

(b) the relevant statement and documentation presented by the applicant including

information on whether the applicant has been or may be subject to persecution or

serious [...] harm;

1 A : scrutiny reservation

S : reservation linked to the proposal for a Directive on asylum procedures. The last sentence of paragraph 1 should read (in a Recital) as follows : "Member States shall take appropriate measures to enable the applicant for international protection to assist the competent authorities in evaluating the relevant facts and circumstances of the claim."

2 S :paragraphs 2 to 5 should be deleted and replaced by the following recital:

"The applicant should co-operate insofar as he or she should present necessary facts, circumstances and elements of his or her case, including documentation at his or her disposal regarding his or her age, background, as well as that of relevant relatives, identity, nationality, coutry(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection." To overcome this problem, the Chair suggested to insert a new paragraph saying that "Article 7 shall apply without prejudice to constitutional law of Member States".

(c) the individual position and personal circumstances of the applicant, including factors

1

such as background, gender, age, health and disabilities so as to assess whether, on the basis of the applicants' personal circumstances, the acts to which he or she has been or

could be exposed would amount to persecution or serious [...] harm;

(d) whether the applicant's activities since he left his or her country of origin were engaged in for the sole or main purpose of creating the necessary conditions for making an application for international protection, so as to assess whether these activities will expose the concerned person to persecution or serious harm if returned to that

country. 2

• 4. 

  The fact that an applicant has already been subject to persecution or serious [...] harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's wellfounded fear of persecution or real risk of suffering serious [...] harm, unless there are good

  reasons to consider that such persecution or serious [...] harm will not be repeated. 3

• 5. 

  Where aspects of the applicant's statements are not supported by documentary or other evidence, those aspects shall not need confirmation, when the following conditions are met :

  (a) the applicant has made a genuine effort to substantiate his claim;

  (b) all relevant elements, at his/her disposal, have been submitted, and a satisfactory explanation regarding any lack of other relevant elements has been given;

  (c) the applicant's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to his/her case,

1 IRL : such a specific list of factors is not needed.

NL : refer to "personal characteristics" instead of to "health and disabilities".

2 IRL : insert a new sub-paragraph (e) as follows :

"whether the applicant could avail himself of the protection of another country where he could

assert nationality".

The Chair asked for the opinion of the Council Legal Service concerning this subject in

connection with the provisions of Article 13.

3 B : reservation. Suppress the words "unless there are good reasons to consider that such

persecution or serious harm will not be repeated".

(d) the applicant has filed his or her application for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so, and

(e) the general credibility of the applicant has been established.

Article 8

1

International protection needs arising sur place

• 1. 

  A well-founded fear of being persecuted or a real risk of suffering serious [...] harm may be

  based on events which have taken place since the applicant left his country of origin.

• 2. 

  A well-founded fear of being persecuted or a real risk of suffering serious [...] harm may be

based on activities which have been engaged in by the applicant since he left his country of origin, in particular where it is established that the activities relied upon constitute the

expression and continuation of convictions or orientations held in the country of origin.

• 3. 

  (deleted) 2

1 D : reservation. This provision should refer only to refugee status.

2 A : scrutiny reservation on the deletion of this paragraph which read as follows :

"The rule laid down in paragraph 2 does not apply where such activities were engaged in for the sole purpose of creating the necessary conditions for making an application for international protection, unless the applicant can demonstrate that these activities have exceptionally resulted in a well-founded fear of being persecuted or a real risk of suffering serious harm."

Article 9 Actors of persecution or serious [...] harm

Actors of persecution or serious [...] harm include:

(a) the State;

(b) parties or organisations controlling the State or a substantial part of the territory of the State;

(c) non-State actors, if it can be demonstrated that the actors mentioned under sub-paragraphs (a)

and (b), including international organisations, are unable or unwilling to provide protection as

defined in article 9 A against persecution or serious [...] harm. 1

Article 9 A

Actors of protection 2

• 1. 

  Protection can be provided by:

  (a) the State; or

  (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State. 3

• 2. 

  Protection is generally provided when the actors mentioned in sub-paragraphs (a) and (b) take reasonable steps to prevent the persecution or suffering of serious [...] harm inter alia by

operating an effective 4 legal system for the detection, prosecution and punishment of acts

constituting persecution or serious [...] harm, and the applicant has access to such protection.

1 D : scrutiny reservation.

2 D : scrutiny reservation on the title of this Article. Prefers original structure as proposed by

the Cion.

3 D : the Council should appreciate on a case by case basis situations where international

organisations are able to provide protection.

13648/02 GT/bdn 11 Article 10 Internal protection

• 1. 

  As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious

[...] harm; and 1 the applicant can reasonably be expected to stay in that part of the country.

• 2. 

  In examining whether a part of the country is in accordance with paragraph 1, Member States shall have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant at the time of taking the decision on the application.

• 3. 

  Paragraph 1 may apply notwithstanding technical obstacles to return, unless there is no reasonable prospect [...] that the return will be possible, even with the co-operation of the applicant, and provided that from the time of flight and until leaving the country of

  origin, he or she had no access to internal protection as qualified in paragraphs 1 and 2. 2

1 F : add "therefore".

2 D/F/IRL/S : scrutiny reservations.

S esteems that such situations are to be considered when evaluating the application.

CHAPTER III Qualification for being a refugee

Article 11 Acts of persecution

• 1. 

  Acts considered as persecution within the meaning of article 1 A of the Geneva Convention must :

  (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15 (2) of the European Convention for the Protection of Human

  Rights and Fundamental Freedoms; 1 or

(b) be an accumulation 2 of violations of human rights which is sufficiently severe as to

affect an individual in a similar manner as mentioned in sub-paragraph (a).

• 2. 

  Acts of persecution, which can be qualified as such in accordance with paragraph 1, can inter alia take the form of:

  (a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves

discriminatory or which are implemented in a discriminatory manner;

(c) prosecution or punishment, which is disproportionate or discriminatory;

1 A/IRL/UK : scrutiny reservations.

13648/02 GT/bdn 13

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, 1 where

performing military service would include crimes or acts falling under the exclusion

clauses as set out in Article 14, paragraph 2; 2

(f) acts of a gender-specific or child-specific nature. 3

• 3. 

  In accordance with Article 2 (c), there must be a connection between the reasons mentioned in Article 12 and the acts of persecution as qualified in paragraph 1.

  Article 12 The reasons for persecution

• 1. 

  Member States shall take the following elements into account when assessing the reasons for persecution:

  (a) the concept of race shall in particular include considerations of colour, descent, or membership of a particular ethnic group;

  (b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;

1 A/NL : scrutiny reservations. Reintroduce the terms "which has been condemned by relevant

bodies of the United Nations or".

2 D : scrutiny reservation.

3 A/D/E : reservations. These cases are already covered by sub-paragraph (a) and by

Article 12(1)(d).

(c) the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State;

(d) a group may be considered to form a particular social group where in particular:

• - 

  members of that group share an innate characteristic [...] 1 or a common

background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to

renounce it, and

• - 

  that group has a distinct identity 2 in the relevant country, because it is [...]

  perceived as being different by the surrounding society;

(e) the concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter related to the potential persecutors mentioned in

Article 9 and to their policies or methods, 3 whether or not that opinion, thought or

belief has been acted upon by the applicant.

1 FIN/NL/S/Cion : reinsert the words "such as sexual orientation, age or gender".

2 A : the words "distinct identity" should be clarified. The definition of social groups should not

be based on their persecution.

3 NL : scrutiny reservation. This text is too restrictive. Refer to "organisation or structure of the

society".

• 2. 

  When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political

  characteristic, which attracts the persecutory action, provided that such a characteristic is attributed to him or her by the actor of persecution.

Article 13

Cessation

• 1. 

  A third country national or a stateless person shall cease to be a refugee, if he or she:

  (a) has voluntarily re-availed himself or herself of the protection of the country of nationality; or

  (b) having lost his or her nationality, has voluntarily re-acquired it; or

  (c) has acquired a new nationality, and enjoys the protection of the country of his or her new nationality; or

  (d) has voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to fear of persecution; or

  (e) can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality;

  (f) being a person with no nationality, he or she is able, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, to return to the country of former habitual residence;

• 2. 

  In considering sub-paragraphs (e) and (f), Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded.

Article 14

Exclusion

• 1. 

  A third country national or a stateless person is excluded from being a refugee, if:

(a) he or she is 1 receiving protection or assistance from organs or agencies of the United

Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the

benefits of this Directive;

(b) he or she is recognised by the competent authorities of the country in which he or she

has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country; or rights and obligations equivalent to

those. 2

1 UK : scrutiny reservation regarding the deletion of "at present".

13648/02 GT/bdn 17 2. A third country national or a stateless person is excluded from being a refugee where there are

serious reasons for considering that:

(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious nonpolitical crimes;

(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

• 3. 

  [...] 1 Paragraph 2 applies to persons, who instigate or otherwise participate in the commission of the crimes or acts mentioned in that paragraph. 2

• 4. 

  (deleted)

(former paragraph 3 is deleted) 3

1 D/FIN : scrutiny reservations.

2 Cion : opposed to the reference to the instigators, which are covered by the expression "has

committed".

3 NL/UK : scrutiny reservations concerning this deletion.

Cion : opposed to this deletion. (This paragraph read : "The grounds for exclusion as referred to in paragraph 2 shall be based solely on the personal and willing conduct of the person concerned.").

CHAPTER IV

Refugee Status

Article 14 A Granting of refugee status

Member States shall grant refugee status to a third country national or a stateless person, who qualifies as a refugee in accordance with Chapters II and III.

Article 14 B Revocation of, ending of or refusal to renew refugee status

• 1. 

  Member States may revoke, end or refuse to renew the refugee status of a third country national or a stateless person granted by a governmental, administrative, [...] judicial or quasi-judicial body, if:

  (a) he or she has ceased to be a refugee in accordance with Article 13;

  (b) his or her misrepresentation or omission of facts, including the use of false documents, were decisive for the granting of refugee status.

• 2. 

  Without prejudice to the duty 1 of the refugee to disclose all relevant facts and provide all

relevant documentation at his/her disposal the Member State, which has granted refugee status, shall on an individual basis demonstrate that the concerned person has ceased to be or

has never been a refugee in accordance with paragraph 1.

• 3. 

  Member States shall revoke, end or refuse to renew the refugee status of a third country national or a stateless person, if it, after he or she has been granted refugee status, is established by the concerned Member State that he or she should have been or is excluded from being a refugee in accordance with Article 14.

13648/02 GT/bdn 20 4. Member States may revoke, end or refuse to renew the refugee status of a third country

national or a stateless person granted by a governmental, administrative, judicial or quasi-judicial body, if:

(a) there are serious reasons for considering that he or she has committed a serious non-political crime; or

(b) there are reasonable grounds for regarding that he or she constitutes a danger to

the security of the country in which he or she is. 1

• 5. 

  Member States may in accordance with paragraph 4 revoke the refugee status of a third country national or a stateless person as part of the same decision by which the

  concerned person was granted refugee status in accordance with Article 14 A.

1 A/B/FIN/L/NL/P/S/UK : preferred to solve this question in the context of Article 19

(protection from refoulement).

CHAPTER V Qualification for subsidiary protection

Article 15 Serious harm Serious harm consists of:

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in his or her country of origin, or in the case of a stateless person, his or her country of former habitual residence;

or 1

(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

1 The following recital will be added to the Preamble:

"Whereas those third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of this Directive."

Article 16

Cessation 1

• 1. 

  A third country national or stateless person shall cease to be a person eligible for subsidiary protection when the circumstances, which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required.

• 2. 

  In considering paragraph 1, Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the person eligible for subsidiary protection no longer faces a real risk of serious [...] harm.

1 D : linguistic scrutiny reservation.

S : scrutiny reservation.

Article 17

Exclusion

• 1. 

  A third country national or a stateless person is excluded from being a person eligible for

  subsidiary protection where there are serious reasons for considering that: 1

  (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

  (b) he or she has committed a serious crime;[...] 2

  (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations;

(d) he or she constitutes a danger to the community or to the security of the country in

which he or she is. 3

• 2. 

  [...] 4 Paragraph 1 applies to persons who instigate or otherwise participate in the commission

  of the crimes or acts mentioned in that paragraph.

• 3. 

  Member States may exclude a third country national or a stateless person from being a person eligible for subsidiary protection, if he or she prior to his or her admission to the Member State has committed one or more crimes, outside the scope of paragraph 1, which would be

punishable by imprisonment 5 , had they been committed in the Member State concerned, and

if he or she left his or her country of origin solely in order to avoid sanctions resulting from

these crimes. 6

1 D/S : reservations. This sub-paragraph should be an option for Member States.

FIN : scrutiny reservation.

2 D : scrutiny reservation.

3 D/NL/S : scrutiny reservations concerning sub-paragraphs (a) to (d). They should reflect the

content of Article 14 (2).

4 D/FIN : scrutiny reservations.

5 Cion : add "in all Member States".

13648/02 GT/bdn 24

(former paragraphs 3 and 4 are deleted) 1

CHAPTER VI Subsidiary Protection Status

Article 17 A Granting of subsidiary protection status

Member States shall grant subsidiary protection status to a third country national or a stateless person who qualifies as a person eligible for subsidiary protection in accordance with Chapters II and V.

Article 17 B

Revocation of, ending of or refusal to renew subsidiary protection status

• 1. 

  Member States may revoke, end or refuse to renew the subsidiary protection status of a third country national or a stateless person granted by a governmental, administrative, [...] judicial or quasi-judicial body, if:

  (a) he or she has ceased to be a person eligible for subsidiary protection in accordance with Article 16;

  (b) his or her misrepresentation or omission of [...] facts, including the use of false documents, were decisive for the granting of subsidiary protection status.

1 D : former paragraph 4 should be reinserted (It read : "The application of the exclusion shall

not in any manner affect obligations that Member States have under international law"). S : add the following new paragraph : "In the case where a third country national or a stateless person in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of formal habitual residence, would face a real risk of suffering serious harm as defined in Article 15 (a) and (b) and is unable or, owing to such risk, is unwilling to avail himself or herself of the protection of that country, a Member State may grant the person subsidiary protection status, residence permit and other rights, should it be in compliance with the Member States' international obligations." The Chair : considered this question to be solved taking into account the wording of Article 4 and of the new recital to be entered concerning Article 15(b).

(c) after having been granted subsidiary protection status, he or she should have been [...] excluded from being a person eligible for subsidiary protection in accordance with

Article 17, paragraph 3.

• 2. 

  Member States shall revoke, 1 end or refuse to renew the subsidiary protection status of a third

  country national or a stateless person, if he or she, after having been granted subsidiary protection status, should have been or is excluded from being a person eligible for subsidiary protection in accordance with Article 17, paragraphs 1 and 2.

• 3. 

  Without prejudice to the duty of the third country national or stateless person to disclose all relevant facts and provide all relevant documentation at his/her disposal, the Member State, which has granted the subsidiary protection status, shall on an individual basis demonstrate that a person has ceased to be or is not a person eligible for subsidiary protection in

  accordance with paragraphs 1 and 2. 2

• 4. 

  (deleted) 3

1 D/S : scrutiny reservations. Say "may" instead of "shall".

2 S : scrutiny reservation linked to the final draft of Article 7.

3 B/NL/I : reinsert this paragraph which read :

"Member States shall ensure that a third country national or stateless person has the right to an

appeal or a review before a judicial body of a decision to revoke, end or refuse to renew a

subsidiary protection status."

CHAPTER VII

Article 18 Content of international protection

• 1. 

  The rules laid down in this Chapter shall be without prejudice to the rights laid down in the Geneva Convention.

• 2. 

  The rules laid down in this Chapter shall apply both to refugees and persons eligible for subsidiary protection unless otherwise indicated.

• 3. 

  The level of rights granted to a refugee or a person eligible for subsidiary protection status

  shall not be lower than that enjoyed by applicants during the determination process. 1

• 4. 

  When implementing the provisions of this Chapter, Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

• 5. 

  Within the limits set out by the Geneva Convention, Member States may reduce the benefits of Chapter VII, granted to a refugee, whose refugee status has been obtained on the basis of activities engaged in for the sole or main purpose of creating the necessary conditions for

  being recognised as a refugee. 2

1 D : this paragraph could be deleted.

S : the level of protection is too low.

13648/02 GT/bdn 27 6. Within the limits set out by international obligations of Member States, Member States may

reduce the benefits of Chapter VII, granted to a person eligible for subsidiary protection, whose subsidiary protection status has been obtained on the basis of activities engaged in for the sole or main purpose of creating the necessary conditions for being recognised as a

person eligible for subsidiary protection. 1

Article 19 Protection from refoulement

• 1. 

  Member States shall respect the principle of non-refoulement in accordance with their international obligations.

• 2. 

  Without prejudice to paragraph 1 Member States may refoule an asylum seeker, a refugee or a person eligible for subsidiary protection when there are reasonable grounds for considering:

(a) him or her as a danger to the security of the country in which he or she is; or

(b) having been convicted by a final judgement of a particular serious crime, he or she

constitutes a danger to the community of that country.

• 3. 

  Member States may revoke, end or refuse to renew or grant the residence permit of (or to) a refugee or a person eligible for subsidiary protection to whom paragraph 2

  applies. 2

1 S : suppress the words "on the basis of activities engaged in for the sole or main purpose of

creating the necessary conditions for being recognised as a person eligible for subsidiary protection".

13648/02 GT/bdn 28 Article 20 Information

Member States shall provide persons recognised as being in need of international protection,

immediately 1 after status has been granted, with information, 2 in a language likely to be understood by them, in which provisions relating to the respective protection regimes are clearly set out. 3

Article 21 Residence permits

• 1. 

  As soon as their status has been granted Member States shall issue to refugees and their

  accompanying family members 4 a residence permit which must be valid for at least five

  years 5 6 and renewable automatically.

• 2. 

  As soon as the status has been granted Member States shall issue to persons enjoying

  subsidiary protection status and their accompanying family members 7 a residence permit

  which must be valid for at least one year. 8 This residence permit shall be automatically 9

renewed at intervals of not less than one year, until such time as the granting authorities

establish that such protection is no longer required. 10

1 NL/P/S/UK : read "as soon as possible" or "within a reasonable period" instead of

"immediately".

2 FIN : specify which kind of information.

E : specify that this information should relate to the rights and duties of the persons concerned.

3 D : scrutiny reservation.

4 FIN : scrutiny reservation concerning family members.

5 NL : prefers three years.

6 E/FIN/L/NL : delete "automatically".

L : read "renewable ipso jure" ("de plein droit" in French).

7 FIN : scrutiny reservation concerning family members.

8 S : add "or, in specific cases, for six months".

9 Same comments as for paragraph 1.

10 D : scrutiny reservation.

FIN : delete the second sentence.

Article 21A

Maintaining family unity 1

• 1. 

  Member States shall ensure that family members of the same nationality as the beneficiary of refugee or subsidiary protection status are entitled to a status which will enable them to stay with the beneficiary. This status cannot be less favourable than the one granted to family members who have been reunified with a beneficiary of refugee or subsidiary protection

  status in accordance with family reunification regulations. 2

1 D : proposed the following text :

Article 6 Extension of refugee protection to family members

• 1. 

  Member States shall ensure that family members are entitled to refugee status already (a) if they lodged their application for international protection before or at the same time as the refugee or without any delay after entering the territory of the Member State and

  (b) if pursuant to Article 2 (j) (i) the marriage or the stable relation ship with his/her unmarried partner already existed in the country of origin of the refugee or of

  his/her spouse or unmarried partner.

• 2. 

  In cases pursuant to Article 2 (j) (ii) where the child is born on the territory of the Member State after the recognition of the refugee the application for international protection has to be filed within a period of one year after birth.

• 3. 

  The rule laid down in paragraph 1 is not applicable if the family member is excluded from refugee status pursuant to Article 14.

• 4. 

  Member States may introduce regulations which establish that paragraphs 1 to 3 apply mutatis mutandis to family members of persons who are eligible for subsidiary

  protection status.

2 FIN : wanted the following text :

"Need for protection as a result of a family tie Where a foreigner with a family obtains refugee status or a residence permit on the basis of subsidiary protection, a member of his family as referred to in Article 2 who has entered the country and has no grounds of his own for obtaining protection shall be granted the same status, unless his need for protection is to be examined separately as a result of a different background or nationality."

• 2. 

  The rule laid down in paragraph 1 is not applicable where the family member is excluded from refugee or subsidiary protection status pursuant to Chapters III and IV.

  Article 22 Long-term residence status

Notwithstanding Article 3(2)(b) of Council Directive…/…EC. [concerning the status of third

country nationals who are long term residents] 1 Member States shall grant persons enjoying

subsidiary protection status long term-residence status on the same terms as those applicable to

refugees under that Directive. 2

1 OJ L

2 IRL/UK : pointed out that they did not opt to participate in the adoption of the proposal for a

Directive referred to in this Article and asked the Council Legal Service for an opinion concerning this issue. A/D/E/FIN : avoid making reference to "long-term residence status". NL : scrutiny reservation.

Article 23 Travel document

• 1. 

  Member States shall issue to persons to whom they have granted refugee status travel documents in the form set out in the Schedule to the Geneva Convention, for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require.

• 2. 

  Member States shall issue travel documents to persons enjoying subsidiary protection status

  who are unable to obtain a national passport. 1

Article 24

Access to employment 2

• 1. 

  Member States shall authorise refugees to engage in employed or self-employed activities under the same conditions as nationals, immediately after the refugee status has been granted.

• 2. 

  Member States shall ensure that activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered to refugees, under the same conditions as nationals.

1 A/D : scrutiny reservations.

EL/E : add also in paragraph (2) the words "unless compelling reasons of national security or public order require otherwise". FIN : application of more generous national practice should be allowed.

2 D : rules concerning refugee status and subsidiary protection should be more clearly

separated. FIN/P : scrutiny reservations.

• 3. 

  Member States shall authorise persons enjoying subsidiary protection status to engage in employed or self-employed activities under the same conditions as nationals no later than six

  months after such status is granted. 1

• 4. 

  Member States shall ensure that persons enjoying subsidiary protection status have access to activities such as employment-related education opportunities for adults, vocational training and practical workplace experience, under the same conditions as nationals no later than one

  year after such status is granted. 2

• 5. 

  After access to the labour market is granted in accordance with paragraphs 1 and 3, refugees and persons enjoying subsidiary protection status are entitled to equal treatment with nationals in terms of remuneration, access to social security systems relating to employed or selfemployed

  activities, and other conditions of employment. 3

1 A/I : scrutiny reservations.

D : reservation. Avoid any link between duration of stay and access to work. EL : scrutiny reservation concerning the six-month period. Wanted a longer time-limit. FIN : wondered whether any time-limit was needed here. NL/S : wanted the same time-limits for both statuses.

2 A/I : scrutiny reservations.

D : reservation. FIN : wondered whether any time-limit was needed here. Refer to "EU nationals". NL : in practice it would be difficult to treat these persons under the same conditions as nationals.

3 EL/A : reservations. EL wondered whether this provision is compatible with

Article 137 TEC.

Article 25

Access to education 1

• 1. 

  Member States shall grant full access to the education system to all those minors enjoying

  international protection under the same conditions as nationals. 2

• 2. 

  Member States shall allow adults enjoying international protection access to the general

education system, further training or retraining, under the same conditions as nationals. 3

• 3. 

  Member States shall ensure equal treatment as between persons enjoying international protection and nationals with regard to the recognition of diplomas, certificates and other

  qualifications issued by a competent authority. 4

  Article 26 Social Welfare

Member States shall ensure that persons enjoying international protection receive, under the same conditions as nationals of the Member State that has granted the protection, the necessary assistance

in terms of social welfare and means of subsistence. 5

1 A/D/E/FIN/NL/P : scrutiny reservations.

A : opposed granting the same treatment to both statuses. E : refer to "EU nationals" instead of to "nationals".

2 FIN : specify access to school or pre-school education.

3 S : scrutiny reservation.

4 A/E/IRL/I/UK : scrutiny reservations.

5 A/D/P/S/UK : scrutiny reservations.

F : scrutiny reservation on granting the same treatment to persons enjoying international protection and to nationals. Moreover, the term "social welfare" should be clarified. FIN : the wording of this provision does not correspond to the explanations given by the Commission in its "Commentary on Articles".

Article 27

Health and psychological care 1

• 1. 

  Member States shall ensure that persons enjoying international protection have access to health and psychological care under the same conditions as nationals of the Member State that

  has granted the status. 2

• 2. 

  Member States shall provide appropriate medical and psychological care to persons enjoying international protection who have special needs, such as accompanied or unaccompanied minors, or persons who have undergone torture, rape or other serious forms of psychological,

  physical or sexual violence. 3

• 3. 

  Member States shall ensure access to rehabilitation services to minors who have been victims of any form of abuse, neglect, exploitation, torture, cruel, inhuman and degrading treatment or who have suffered from armed conflict. To facilitate recovery and reintegration, appropriate mental health care shall be developed and qualified psycho-social counselling shall be

  provided when it is needed. 4

1 S : scrutiny reservation. Wondered about the treatment to be given to persons having been

excluded from an international protection status but who cannot be removed from the country for reasons linked to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

2 D : different access should be granted to people enjoying different statuses (refugee or

subsidiary protection).

3 D/L/P : this provision should be drafted along the same lines as the relevant provision of the

draft Directive for the reception of asylum seekers. L : read "Member States shall ensure as far as possible ..." (rest unchanged). IRL : add the following sentence : "Insofar as services are not available, Member States shall work towards their provision". NL : paragraphs (2) and (3) should be merged.

13648/02 GT/bdn 35 Article 28

Unaccompanied minors 1

• 1. 

  Member States shall take the necessary measures as soon as possible, to ensure the representation of unaccompanied minors enjoying international protection by legal guardianship, or representation by an organisation which is responsible for the care and wellbeing

  of minors, or by any other appropriate representation. 2

• 2. 

  Member States shall ensure that the minor’s needs are duly met in the implementation of the

  provisions of this Directive by the appointed guardian. 3 The appropriate authorities shall make regular assessments. 4

• 3. 

  Member States shall ensure that unaccompanied minors are placed: 5

  (a) with adult family members; or (b) with a foster family; or (c) in centres specialised in accommodation for minors; or (d) in other accommodation suitable for minors.

• 4. 

  Member States shall ensure 6 that siblings are kept together. Changes of unaccompanied

  minors’ residence shall be limited to a minimum.

1 FIN/IRL : scrutiny reservations.

FIN : protection must be provided at least at the same level as that provided for national minors who have being taken into care.

2 I : add "taking into account the best interests of the child".

3 IRL : add "or representative"

4 NL : the second sentence of this paragraph should be moved to Article 36.

5 D/S : ensure that none of the language versions make this list of possibilities an order of

preference.

13648/02 GT/bdn 36 5. If it is in the best interests of the child, Member States shall endeavour to trace the members

of the family of unaccompanied minors as soon as possible. 1

• 6. 

  Member States shall ensure that those working with unaccompanied minors receive

  appropriate training 2 on their needs.

  Article 29 Access to appropriate accommodation

The Member States shall ensure that persons enjoying international protection have access to

suitable accommodation 3 or, if necessary, receive the means to obtain housing.

Article 30 Freedom of movement within the Member State

Member States shall not limit the freedom of movement within their territory of persons enjoying

international protection. 4

1 FIN/NL : this tracing must be undertaken when proceedings concerning international

protection status start, and not after status has been granted.

2 D : read "are trained" instead of "receive appropriate training".

3 A/D : delete reference to "suitable accommodation" and refer only to "housing".

A : limit this obligation to information about the housing market. EL/E/IRL/P/UK : read "The Member States shall ensure that persons enjoying international protection have access to housing under the same conditions as nationals".

4 D/EL/IRL : scrutiny reservations.

EL/E/IRL/I/UK : add exceptions for circumstances where these persons may be subject to

restrictions on free movement (i.e. national security, public order, criminal proceedings).

Article 31

Access to integration facilities 1

• 1. 

  In order to facilitate the integration of refugees into society, Member States shall make provision for specific support programmes tailored to their needs in the fields of, inter alia, employment, education, healthcare and social welfare;

• 2. 

  Member States shall grant persons enjoying subsidiary protection access to equivalent

  programmes, not later than one year after their status is granted. 2

Article 32

Voluntary return 3

Member States shall grant persons enjoying international protection access to voluntary return

programmes 4 for those who wish to return on a voluntary basis to their country of origin.

1 P/UK : scrutiny reservations.

2 FIN/NL/S : delete the following words "not later than one year after their status is granted".

A/D : scrutiny reservations.

3 D/FIN : scrutiny reservations.

IRL : start this provision with the following words : "Within the limit of their resources, Member States may endeavour..." (rest unchanged). UK : delete this provision. Otherwise, make the amendment suggested by IRL.

13648/02 GT/bdn 38 CHAPTER VI Administrative cooperation

Article 33

Cooperation 1

Member States shall each appoint a national contact point, whose address they shall communicate to the Commission, which shall communicate it to the other Member States.

Member States shall, in liaison with the Commission, take all appropriate measures to establish direct Cooperation and an exchange of information between the competent authorities.

Article 34 Staff and resources

• 1. 

  Member States shall ensure that authorities and other organisations implementing this

Directive have received the necessary basic training with respect to the needs of both male and female refugees or beneficiaries of subsidiary protection status and their accompanying

family members, 2 as well as the specific needs of minors, in particular unaccompanied

minors.

• 2. 

  Member States shall allocate the necessary resources in connection with the national provisions enacted to implement this Directive. 3

1 FIN/NL : clarify how this co-operation will work in practice.

2 NL : accompanying family members should also have applied for international protection.

13648/02 GT/bdn 39 CHAPTER VII Final provisions

Article 35

Non-discrimination 1

Member States shall implement the provisions of this Directive without discrimination on the basis of sex, race, nationality, membership of a particular social group, health, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation.

Article 36

Reports

By [30 April 2006] at the latest, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose any amendments that are necessary. These proposals for amendments shall be made by way of priority in relation to Article 15, taking into consideration the international obligations of Member States regarding non-refoulement, existing at the time these proposals are made. Member States shall send the Commission all the information that is appropriate for drawing up that report. After presenting the report the Commission shall report to the European Parliament and the Council on the

application of this Directive in the Member States at least every five years. 2

1 D/EL/F : delete this provision. Its content could be placed in the preamble.

2 Recital 24 will be amended as follows :

"(24) The implementation of this Directive should be evaluated at regular intervals, taking into consideration in particularly the evolution of the international obligations of Member States regarding non-refoulement."

Article 37 Transposition

• 1. 

  The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [30 April 2004] at the latest. They shall forthwith inform the Commission thereof.

When the Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official

publication. Member States shall determine how such a reference is to be made.

• 2. 

  Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.

  Article 38 Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 39 Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the Council The President

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