by Elisa SICLARI (FREE-Group trainee)
NB This post describes the current state of negotiations on the proposal of Commission to recast Directive 2011/95/UE “on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted”. Reference is made to the EU Member States positions as well as to the most relevant amendments envisaged in the European Parliament by the LIBE Committee .
The European system of asylum is the result of a long process beginning at an international level after the II World War and in particular due to the need to find a solution for all people displaced during the war atrocities. As a matter of a fact, when United Nations created the 1951 Refugee Convention (Geneva Convention) there was a clear limitation in scope referring to people persecuted in a specific area which was Europe and by events occurred before 1 January of 1951. With its Protocol of 1967 temporal and geographical limits has been removed and Geneva Convention reached an universal application on asylum. Even the European Communities founding treaties made no reference to refugees and asylum seekers a first reference was made in the framework of the so called “Political Cooperation” launched by the Single European Act which entered int force in 1987. But a clear legal basis for the European Union intervention in this domain was made by the Maastricht Treaty which entered into force on November 1st 1993 even if, at the time it was still mainly an intergovernmental cooperation without a true association of the European Parliament and of the Court of Justice (under the so called “third Pillar” regime).
A progressive integration in the ordinary “Community” (“First Pillar”) regime was triggered by the Amsterdam Treaty which entered into force on the May 1st 1999
Already on 15 and 16 October 1999 in Tampere the European Council agreed to work towards the creation of a Common European Asylum System, on the basis of a full and inclusive application of the Geneva Convention of 1951 and its Protocol of 1967. Art. 63 of the (former) Treaty on the European Community was then the legal basis for the adoption of a first generation of EU legislation defining minimum rules on:
a) criteria and mechanisms to identify the Member State responsible for examining an application for asylum lodged by a third-country national in one of the Member States formerly covered by the so called “Dublin” Convention (see Council Regulation (EC) No 343/2003) ;
b) minimum standards on procedures for granting or withdrawing refugee status in the Member States (see Directive 2005/85/EC );
c) minimum standards on the conditions that third-country nationals will have to meet in order to aspire to refugee status (qualification standards) (see Directive 2004/83/EC );
d) minimum standards for the reception of asylum seekers in the Member States (see Council Directive 2003/9/EC) .
In a first five years phase (1999-2004) the Council acted unanimously, after consulting Parliament, but after this initial phase, the Treaty empowered the Council to decide that after 2004 the normal codecision procedure should apply and that it should thus henceforth adopt its decisions by qualified majority.
The second generation of EU legislation was adopted after a detailed assessment of the impact of the first generation of legislative measures and notably after the entry into force of the Lisbon Treaty as well as of the EU Charter of fundamental rights whose articles 18 and 19 strengthened the duty of the EU in this domain. Between 2011 and 2013 the following measures have been agreed between the European Parliament and of the Council:
- Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast of Council Regulation (EC) No 343/2003) (so called “Dublin” Regulation) ;
- Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection(recast of Directive 2005/85/EC of 1 December 2005) (so called “Procedures” Directive) ;
- Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted(recast of Directive 2004/83/EC of 29 April 2004) (so called “Qualification” Directive);
- Directive 2013/33/EU of 26 June 2013 of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast of Council Directive 2003/9/EC of 27 January 2003) (so called “Reception” Directive).
All together these instruments form the current Common European Asylum System (CEAS).
However, unfortunately the mass influx of irregular migrants in 2015, showed all the weaknesses of the newly reformed CEAS notably because of the Member States lack of consistency and heterogeneous approach when transposing at national level the “Dublin” Regulation as well as the other asylum Directives. The consequence of this has been an increasing “asylum-shopping”, which incremented secondary movements of migrants moving to European countries where there are shortest durations of asylum procedures and best reception conditions. “Furthermore, although the Qualification Directive sets out rules on recognition and protection to be granted at Union level, in practice the recognition rate varies, sometimes to a considerable extent, between Member States”. There are obstacles and blockades even in the Resettlement and Relocation system for beneficiaries of international protection. The situation is straining to the limit European institutions and what is also serious and worrying is that the inability of the institutions to find a point of contact in this field, puts a strain on the respect for human rights of third-country nationals.
So, in the Post Lisbon communication of the Commission of 6 April 2016 about reforming of CEAS and enhancing legal avenues to Europe, the main defined objective to reach is the transformation of the current system, (which is becoming extremely heavy on shoulders of Member States sharing the EU e external borders), into a new system which will work holistically by sharing equally the burdens among all the EU Member States. At the center of the new Common European Asylum System there should be not only the asylum seekers, but also people who are persecuted and are in need of international protection.
From a Directive towards a Qualification Regulation: the proposal of the Commission and reactions of others European institutions.
The aim of this first analysis is to focus on the recast of Directive 2011/85/UE, (Qualification Directive) which is the instrument throughout determining of Member States assess the application for asylum and allow to people in real need to benefit of specific rights in reason of their vulnerable situation. According ot the European Commission Member States have implemented Directive 2011/95 in many different ways and all these differences had lead to a different recognition rates among States, which encourage secondary movement of migrants. So, recasting Directive on qualification is one of the most important step in the reform of CEAS, as the first in order to guarantee an equal level of protection to all people in need by giving them the possibility to be safe and the possibility to have a new life avoiding speculation on the procedures of recognition.
The proposal of Commission to recast Directive 2011/95 starts by proposing the replacement of the Directive with a Regulation seen as the only instrument which can permit a convergence in this field.
The Regulation as a binding legislative will lead towards:
- an harmonization of common criteria for recognizing applicants for international protection;
- more convergence of the asylum decisions across Member States obliging authorities to take into account information on country of origin provided by the European Union Agency for Asylum and the European networks;
- give protection only until there is the real risk of persecution without affecting a long term integration of beneficiaries of international protection;
- reducing secondary movements of beneficiaries on one hand by determining the obligation to stay in Member States which is granting protection, on the other hand providing penalties linked to the Long term Residence Directive;
- harmonization of the rights between beneficiaries of refugee status and subsidiary protection.
The Commission affirms that its proposal is founded on legal basis of: “[…]Article 78(2) (a) and (b) of the Treaty on the Functioning of the European Union (TFEU). These provisions establish that the EU enjoys powers to develop a common policy on asylum, subsidiary protection and temporary protection[…] Article 79 (2) (a) of the TFEU is added as a legal base due to the proposed amendment to the Long-Term Residents Directive 2003/109/EC related to beneficiaries of international protection.”. Furthermore, European intervention throughout a Regulation is offered to balance the situation among member States in respect of the principle of subsidiarity, and in order to achieve its scope in accordance with the principle of proportionality, such as affirmed by the Commission.
During the Asylum Working Party of the Council of the European Union, about these points set up by the Commission there were different reactions from States.
In a contribution of the Italian Parliament on 11/11/2016 there has been expressed the agreement about the intent to use a Regulation in this field, in order to reach more convergence among Member States and also about its legal basis.
On the contrary, in the first examination of the proposal for a Qualification Regulation by the Council of European Union on 15 December 2016(presidency Slovakia), Czech Republic and Estonia affirmed that this change is not justified and a Member State should have a margin of choice. This position was retreated by Estonia but not by Czech Republic and furthermore, in the examination of the compromise proposal of the Presidency on 24 March 2017 by Justice and Home Affairs Counsellors on 5/04/2017, Slovakia stances this position. Regarding to Spain it expresses “doubts about the suitability of the legal basis for turning the act into a regulation”. These positions are not changed in the last examination of the last compromise proposal of the Presidency on 27 April 2017 by JHA Consuellors on 10 May.
In the European Parliament, the Committee on Civil Liberties, Justice and Home Affairs (here and after Committee LIBE), chose Tanja Fajon (S&D) as the special rapporteur for the examination of the proposal of the Commission on the Qualification Regulation. She wrote the draft report after several debates with stakeholders and shadow rapporteurs, and she put in evidence a general agreement about the changing of the Directive into a Regulation. During parliamentary debates has been underlined the fact that a proposal for a Qualification Regulation is seen as an important possibility to reach harmonization of criteria determining beneficiaries of international protection, and to give a better definition of rights that these people have to obtain.
In the conclusions of meetings of Tampere of the European Council in 1999, one of the intent was to give more opportunities to all people in need of international protection to ask for it, so it was decided to create a subsidiary protection to broaden the scope given by refugee status of Geneva Convention. Despite this objective, until today there are many differences between the two statuses concerning validity of residence permits, integration incentives and social assistance.
- A question of definitions: family members, acts of persecution, serious harm, environmental refugees.
In the framework of the legislation about international protection which is divided into two statuses, the definitions are essentials in the recast of the Directive on qualification and consequently the debate in the European Institutions is enriched by different perspectives.
First of all the definition of family members in the proposal of Commission at the Art. 2. 9(a),(b),(c), has not undergone significant changes in confront to the Article 2(j) of the Directive 2011/95/UE.
From the Council there have been expressed some reservations about a definition of family members which was broadened to include as the family already existed before the applicant arrived on the territory of the Member States, and for example Belgium affirmed that: “the extension of the definition could lead to abuses. Such a situation should be regulated by the procedure for family reunification.”. Due to this fear, in the last examination by JHA Consuellors of the Presidency compromise proposal on 27 April of 2017, the Presidency intends to revert the text of the proposal to the old disposition of Directive Qualification, stressing on the fact that family members is a definition linked to a family created in the country of origin before the arrival in Europe, and concerns people who are on the same territory.
In the European Parliament, with the draft report of Tanja Fajon there have been proposed important changes about definition of family members. First of all she proposes to consider also families formed after their arrival on Member States excluding forced marriages in every case: this amendment was not included in the final report. In the amendment 39 added the point (ca) with includes siblings of beneficiary of international protection like family members, this prevision is linked also to the new recast of Dublin Regulation and was adopted in the Parliament’s report.
On. Zdechovsy (EPP)expressed his concern about these kinds of amendments, affirming that a definition such as that proposed could create confusion and as a consequence there can be an acceleration of the migratory emergency(Comm. LIBE 25/04/2017).
Referring to the definition of which circumstances can qualify a person eligible for refugee status there have been proposed many amendments at the Article 9. An important relevance to the phenomenon of human trafficking, considering it clearly like an act of persecution in light of Geneva Convention of 1951, is given by amendments of Barbara Spinelli (GUE) which were included in the final report:
- The amendment at the point 9.2(a) intended to include among “acts of physical or psychic violence, including sexual violence and / or trafficking of human beings for exploitation purposes sexual[…]”;
- The amendment at the point 9.7(f) it is specified: “acts directed specifically against a sex or childhood, such as recruitment of minors, mutilations genitals, forced marriages, trafficking minor and child labor, violence domestic, trafficking in human beings for ends of sexual exploitation, violations of the economic, social and cultural rights.”.
In the Commission proposal at the Article 10.1 d 2 on the reasons of persecution, about the definition of membership of a particular social group, the possibility to consider a membership based on sexual orientation is a disposition made with “might” and is oriented to exclude those acts considered to be in contrast with the national law of Member State.
In the compromise proposal of the Council of the UE, there have been some change in the orientation of Presidency and Member States. As a matter of a fact if the Presidency proposed to erase the disposition affirming that all criminal acts like “statutory rape” and “pedophilia” will fall into causes of exclusion but some Member States disagree. In particular Nederland and Slovakia affirmed that the erased sentence should be kept or used in a recital.
In the parliamentary debates, always about the Article 10 there have been amendments proposed by special Rapporteur Tanja Fajon on the point Art. 10.1 (d)2. She rejects this sentence justifying its suppression affirming that: “Linking sexual orientation to acts considered criminal is out of place and should be removed. Sexual orientation in legislation can never mean acts considered to be criminal and has no legal added-value since the concept of sexual orientation is clearly defined in European treaties and EU law, and thus also environment in national law.” On this point pursuing the same direction there have been many amendments, and the amendment 444 purposed by Barbara Spinelli, Cornelia Ernst furthermore add “gender expression” to the definition of “particular social group” in the light of the case law of the European Court of Human Rights ruling “where it was clarified that individuals can be at particular risk of ill-treatment (under Article 3 ECHR) in third countries where they are perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system.” All these amendments were adopted in the final report.
Concerning the qualification for subsidiary protection (Art. 16) and so the definition of what is considered such as serious harm, another amendment proposed in the draft report of special Rapporteur of Tanja Fajon. The special Rapporteur would like to add to the Art.16 par.1 the point (ca) with which all consequences originated by a natural or man-made disaster are considered like a serious harm to life of a person. In this perspective are eligible to subsidiary protection the so-called environmental refugees. On. Barbara Spinelli (GUE) with the amendment 549 gave a list of which kind of events can be considered like natural or man-made disaster: “effects of climate change, land grabbing, water grabbing, desertification of the habitat, forced villagization as well as environmental disasters and pollution caused by war.” These amendments, both by Ms Fajon and Ms Spinelli, were not welcomed by the right and center-right wing groups and were not included in the final report.
- Duration of residence permits in the perspective of: stopping secondary movements, better integration, less burden on burocracy.
Member States in general support the idea of an harmonization between the refugee and subsidiary statuses about rights granted to beneficiaries of international protection. Despite this general orientation of European States, in the Commission’s proposal at the Art. 26 on Residence permits is expected a different period between refugee status and subsidiary status:
“(a) For beneficiaries of refugee status, the residence permit shall have a period of validity of three years and be renewable thereafter for periods of three years.
(b) For beneficiaries of subsidiary protection status, the residence permit shall have a period of validity of one year and be renewable thereafter for periods of two years.”
In the Council, the positions among Member States are not convergent. The tendency of Member States is to go forward a full harmonization giving both the same validity in order to stop secondary movements but until now there is not a total accordance about the length of these periods. As a matter of a fact there are some Member States which want to grant a validity for beneficiaries of refugee status of more than 5 years, and others Member States prefer to grant a validity of more than three years to both beneficiaries of refugee and subsidiary protection.
In the compromise proposal of the Council of UE (5 April), Netherlands affirms that: “The COM is proposing to keep differences between the rights attached to refugee status and subsidiary protection status. For NL, keeping the differences between both statuses will have the effect of considerable additional administrative burden for national systems.” Many Member States expressed that the prevision of three years of residence permit for refugees should be a minimum and Member States should have possibility to grant for a longer duration if they want (Italy). France purposes “for refugees the validity of the residence permit should be between five and ten years, renewable afterwards.”. Spain retains that the drafting could be “at least, three and five years”. This positions are not changed in the compromise proposal of the Council of 11 May. Concerning Residence permits issued for beneficiaries of subsidiary protection the validity was fixed between one and three years by the Council but France proposed to change it between one and five years. The Presidency underlined that in every case the issue of a permanent residence permit isn’t forbidden for beneficiaries of subsidiary protection. In a interinstitutional file sent the Presidency asks to the Permanent Representatives Committee(COREPER), to agree on a compromise which foresees:
“An initial residence permit for beneficiaries of subsidiary protection status with a validity period prescribed between one (1) and five (5) years;
An initial residence permit for beneficiaries of refugee status with a validity period prescribed between five (5) and ten (10) years.
Residence permits can thereafter be renewed in accordance with national law and can include renewal for an unlimited period.” In the last proposal of the Council of 24 of May for refugee stats this period should be from 5 to 10 years, and for subsidiary status between 1 and 5 yeas, both these residence permits will be renewable in accordance with national law.
In the European Parliament amendments purposed in the draft report of Tanja Fajon, about period of residence permits issued, are oriented towards a total harmonization of two statuses as a matter of a fact, for both is expected a residence permit of 5 years renewable thereafter for periods of 5 years and were adopted in the final report. This proposal pursues certain objectives:
- The first one is to give an effective possibility of integration for beneficiaries of international protection at the same level;
- Giving an incentive to people to don’t change Member State avoiding secondary movements;
- The convergence among Member States on the duration of residence permits taking in account of current practice across the Member States and “should not be based on a ‘race to the bottom’ principle”;
- Avoid excessive burden on burocracy.
During reunion of the Committee LIBE of 25 April, many points of views of rapporteurs shadow and members of Parliament found accordance with this amendment, by putting in evidence others reasons why this is necessary or underlining what the special Rapporteur affirmed. Always by using an approach oriented for a better integration of beneficiaries of international protection, On. Sophia in ‘t Veld (ALDE), stressed that if Member States are not capable to guarantee protection for long periods they can’t oblige asylum beneficiaries to integrate themselves (such as expected in the Art. 38 comm.2). On the same line is the intervent of the On. Brigitte Sippel(S&D) who supports that if States can afford only a protection limited to a number of years, individual may be disincentive to integrate themselves into societies “fast-food”.
Even more, an harmonization about the two statuses and as a consequence of both Residence permits issued, “will help to streamline the bureaucratic job by avoiding lengthening of time and possible illegalities”, such as affirmed by rapporteur shadow Alessandra Mussolini(PPE).
On the contrary is different the approach of On. Jussi Halla-Aho (ECR), who reports that amendments presented by group of ECR about Residence Permits purpose a period of one year for beneficiaries of international protection, and On. Tomáš Zdechovsky(EPP) affirming that he does not agree on the harmonization of periods of residence permits between beneficiaries of two statuses cause States should be free to choose such durations.
- Amendment to the Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents.
Another prevision of the Commission to avoid secondary movement is: “by clarifying the obligations of a beneficiary to stay in the Member State which has granted protection and providing for additional disincentives through the modification of the Long-term Residents Directive, by restarting the calculation of legal residence required there in case the beneficiary is found in another Member States without the right to reside or stay.”(Art. 44). For both statuses is expected possibility to ask for long-term residence permit but this is used with a double perspective: like a measure to allow integration but, moreover, such as a mechanism of control on movements within European Union. It can be also seen such as a form of punishment for beneficiaries of international protection if they don’t stay in Member States which granted them protection.
By this second perspective, amendments upon Directive 2003/109/EC appear more finalized to strengthen Dublin system creating a second channel to help the Eurodac system, with the scope to track people who benefit of international protection creating consequences directly on them.
By the Council there is agreement on the prevision of this kind of punitive mechanism. In the last proposal of the Council on 24 of May it has been added that each Member States shall bring into force their national law to comply with this provision by two years which is a more long time in confront of the Commission proposal(6 months).
During discussions in the European Parliament, on this aspect and on necessity to stop secondary movements, the rapporteur shadow Alessandra Mussolini(PPE) said that should be preferred an approach based on proportionality, which takes in consideration reasons why beneficiaries choice to move instead to act immediately throughout the punitive mechanism appointed by the Commission. Tanja Fajon added, at the amendment at the Art 44.1, that for beneficiaries of international protection should be taken into account the period before the recognition of the status in the calculation of the period planned to gain the status of long-term resident. This amendment was approved in the final report.
Point of view completely opposed was expressed by Jussi Alla-Aho(ECR) who affirmed that international protection needs to be temporary and that only beneficiaries really integrated should have possibility to ask for others kind of residence permits.
In the proposal of the Commission at Art. 15 is foreseen a periodical obliged review of statuses of international protection, such decision is justified by the Commission affirming that despite in the Directive there were provisions about it often Member States did not respect them.
In view of the above, the Commission decided to set up Art. 15 in this way:
“Review of refugee status
In order to apply Article 14(1) “Revocation of, ending of or refusal to renew refugee status”, the determining authority shall review the refugee status in particular:
(a) where Union level country of origin information and common analysis of country of origin information as referred in Articles 8 and 10 of Regulation (EU) No XXX/XX [Regulation on the European Union Agency for Asylum] indicate a significant change in the country of origin which is relevant for the protection needs of the applicant;
(b) when renewing, for the first time, the residence permit issued to a refugee.”
In Council of European Union there has been support as regards a review triggered by a change in EU level County of origin information (Art. 15 a), but always concerning the point (a), in the Council of European Union many States BG, ES, IE, PT expressed their reservation about the fact that in this provision should be used the term “may” instead of the term “shall”. The Presidency supports that the review of cases should not be a “may” provision cause it would not lead to harmonization, as a matter of a fact in the last revision of the text on 24 May, the Council is maintaining it like a “shall” provision. Even more Germany affirmed that should be more clarified the expression of “significant change” due to which a State could withdraw statuses, and in the end it retains that Member States should take in consideration others sources of information and analyses like national information.
In the contribution of the Italian Parliament it expressed that also if there is a sharing about necessity to verify periodically the need of protection but this implementation, when politics of resettlement and relocation have failed, could be a danger for the reception systems of the Member States at the external borders and as a consequence on levels of assistance granted to asylum seekers. In this light, Italian Parliament suggests a more careful assessment o fan impact of this kind of provision; related to this point is also suggested to extend the period of residence permit for beneficiaries of subsidiary protection to avoid a burden on determining authorities.
Concerning point (b), this one has been deleted in the last proposal of the Council cause Member States are worried of the administrative burden it could entail if there were a general obligation to do a cessation check each time a residence permit is renewed. Belgium expresses its reservation because “the introduction of regular review of the status is justified, but it is related to the provision of additional resources by the MS and additional administrative burden”. In the last proposal of the Council on 24 of May, always about point (b), it has been affirmed that it should be possible do some kind of review of the status also before extending the residence permit to correct errors and for important reasons pursuant to national law.
However, a number of Member States indicated that “the possibility to issue residence permits on other grounds (humanitarian or legal migration ground) upon cessation of the protection status should not be undermined, and of the importance of not unduly undermining integration prospects via the perception that the protection may only be temporary.”
In the European Parliament the discussion about a systematic review of protection has been not so different by that in Council of UE. The adopted amendments of the special Rapporteur Tanja Fajon are oriented to change this prevision into a “may” provision just where information on countries of origin at Union level and common analysis show a relevant change. It was proposed to change it in order to avoid excessive burden on determining authorities in particular of States at the external borders, but in addiction it should be changed cause could create a sense of instability and insecurity for beneficiaries of international protection. The possibility of a review obliged should be only when is registred an important changing of the security situation in the origin country of beneficiaries, such as affirmed by Rapporteur shadow Alessandra Mussolini, nevertheless, during the vote at Committee level, the Parliament decided to the delete the aforementioned paragraph b.
On the contrary Jussi Halla-Aho (ECR) during reunion of Committee LIBE of 25 April, retained that an assessment of the status once the residence permit has been renewed should be obligatory because is better an administrative burden instead of a burden due to efforces in helping people who don’t want to be integrated.
Another related point discussed was about the proposal of the Commission over the time of three months (Art. 14(5); 20(3)) given to the person whose the status is revoked due to change of circumstances, to try to change his/her status if other grounds can justify it.
By the Council of UE there was a complete deletion of both points related to the prevision of this grace period but Italy proposed to maintain the period.
The framework of amendments expected by members of the European Parliament about this point is very etherogeneus starting from a proposal of amendment presented by On. Jeroen Leaners (EPP), to give effect immediately the decision of withdrawal without a “period of grace” which can be granted by a decision of States; to a proposal of amendment of On. Jean Lambert(GREENS/EFA) and On. Barbara Spinelli(GUE) who want to extend the prevision of this period from three months to nine months.
The changes proposed for minors.
About minors, in the proposal of the Commission on a Qualification Regulation, and also by all the European institutions, is always stressed that in every case, starting from a presentation of request of international protection by a minor, the determining authorities of Member States will assess the “best interests of the child” as well as child specific form of persecutions. In this optical Member State shall consider “the principle of family unity, the minor’s well-being and social development, safety and security considerations”. Furthermore for minors beneficiaries shall be granted the access to the healthcare and the education system such as nationals of the Member States (Art. 35(2); 31(1)).
In the definition of family members of the text of the Commission at the Article 2(9)(b), is put forward that a minor children is considered as a family member of couples “on condition they are unmarried”. But in the European Parliament the amendment 37 made by the special Rapporteur Tonja Fajon in her draft report erase this sentence justifying that shouldn’t be take in consideration the “married or unmarried status of children when determining the members of a family”. These amendments were included in the final report.
There have been proposals from the Council and the European Parliament to amend Art. 36 concerning Unaccompanied minors, such as proposed by the Commission. From the date of the assignment of the unaccompanied minor’s legal guardian within five working days from the grant of international protection. The Directive 2011/95/ EU did not specify the period within which this assignment was to be made.
During the work in the Council of UE, in the compromise proposal on 21 February 2017, the debate over this period began with the proposal by the Presidency to extend it from five to fifteen working days. Greece affirmed that deadline proposed could be problematic, and Belgium “suggests to be prescribed one month maximum term from the entry into force of the decision for protection. For the purpose of the procedure for international protection, the unaccompanied child shall have a representative appointed to carry out his / her representative functions until the appointment of a guardian. It could be provided that the representative may, during the ongoing procedure, take action to appoint a guardian. In this way a guardian could be appointed before a decision on substance was taken.” In the last compromise proposal of the Presidency on 24 May 2017, the forecast for this period was suppressed leaving the Member States free to choose on that in respect of national law.
In the European Parliament the changes proposed concern first of all to make as soon as possible the assignment of the legal guardian for the unaccompanied minor, considering the five-day non-working term. It is also requested that this assignment is made not only as a result of the granting of international protection but from the date of the application or the entry of the child into the Member State. In every case, this second assignment must be carried out as soon as possible and only when it is not possible to keep the guardian assigned to the minor upon his entry into the Member State, also to avoid too many changes of tutors that could be problematic for minors. In addition, it is required by the European Parliament, that the assigned tutor shall be evaluated within the first month of activity as well as periodically. All amendments were included in the Parliament report.
In the Parliament’s final report, with regard to the housing of unaccompanied minors it is proposed not only that the structures are adequate but that they are “opened” structures in accordance with the vulnerability of children and their safety.
Finally, in the proposal of the commission to the Art.36(5) regarding the search for the unaccompanied minor’s family it is foreseen, if it had not already been initiated, that it shall start as soon as possible after the recognition of child protection. In the final report of the European Parliament such research should be started as soon as the child submits the application.
In the perspective to give a common guidance for Member States, the adoption for a Qualification Regulation is the better way to reach harmonization and convergence among States. This convergence should be well oriented towards those good practices which some States implemented under the Directive 2011/95/UE and to a more attention for human rights, rather than an approach created only with the purpose to stop secondary movements. This problem should be more properly considered in the reform of Dublin System, if it wants to be preserved the current approach.
The starting point given by the proposal of the Commission is an important input to the European Parliament which has a wide space to work and consequently the possibility to improve the current framework.
In the Parliament of UE and in the Council about certain points are emerged points of views which can find a link. Sometimes thanks to the will of Member States to avoid excessive burdens on determining authorities and on Member States to the external borders such as avoid secondary movements, or thanks to the shared aim to find solutions more guarantees for beneficiaries of international protection.
On the other hand it’s clear is not so simple to find a contact point with some more extremist positions due to the fear to create provisions that in some way could encourage immigration and in particular economic migration.
In view of the fact that we are facing a very particular historical period (wars and environmental disasters), and consequently in the future the immigration crisis is not short to the end, it is open to question if take in consideration a more opened definition of family could be maybe an additional resource for beneficiaries of international and humanitarian protection.
The “trilogue” between the co-legislators is about to start and a possible compromise and vote on the proposal of Regulation Qualification could take place before the end of the year. It would desirable it would be in favour of more guarantees for human beings and respectful of human rights, and that could happen thanks to the amending job made in European Parliament.
Amendment 103 purposed by Barbara Spinelli, Malin Björk about to the Recital 1 where the adoption of the Regulation is not justified with the aim of an harmonization also“[…]to reduce incentives to circulation within the Union European”, but is more human rights oriented standing that it is necessary to grant an harmonization “[…]on the basis of high standards of protection”.