On November 6, 2007, the UN Refugee Agency (UNHCR) will publish a study on the implementation of the European Union’s “Qualification Directive”[1]. Adopted by the EU in 2004, this legislation sets out the criteria EU Member States must use in deciding whether an asylum-seeker is entitled to international protection. The Study looks at how key provisions of this Directive are implemented in five Member States (France, Germany, Greece, Slovak Republic and Sweden). It concludes that while there is improved consistency of decision-making among Member States on some issues, there are still great differences on others. Much more needs to be done, if the EU is to achieve a common approach to asylum claims. Why did UNHCR produce this Study?  UNHCR undertook this research because one of UNHCR’s central tasks is to supervise the application of the 1951 Refugee Convention – including in the EU. In 2004, UNHCR welcomed the Directive as an instrument which could contribute to strengthening refugee protection in the EU. At that time, however, UNHCR also expressed reservations about several of the Directive’s provisions.  In October 2006, which was the deadline for the Member States to comply with this Directive, European Commission Vice-President Franco Frattini, Commissioner for Justice, Freedom and Security, said the Directive should reduce “the current great variances in recognition rates between Member States.[2]  UNHCR has often pointed out the tremendous differences in the law and practice of EU Member States, which mean that a person’s chances of finding international protection (refugee status or subsidiary protection) can vary dramatically – from 0% to over 70 % – from one Member State to another. In doing this research, UNHCR looked at whether the Directive in fact is contributing to strengthening of international protection in the EU.   There is an active discussion going on at present about the future Common European Asylum System, following the issuance of the Commission’s June 2007 ‘Green Paper’ on this subject. This UNHCR Study is intended as a constructive contribution to that discussion and a useful source of information for the European Commission, which is expected to publish its own evaluation of the Qualification Directive in 2008. What is this study about?       

Approach:  The study looks at how key provisions of the Directive are implemented in five Member States (France, Germany, Greece, Slovak Republic and Sweden). These countries were selected because together they received nearly 50% of all asylum applications in the EU in 2006, because they represent different regions of the EU (North, South, East & West), and they joined the Union at different times.  

The Study examined over 1,400 individual asylum decisions and included interviews with authorities, lawyers and NGOs. The asylum decisions concerned applicants from Afghanistan, Colombia, Iraq, Palestinians, Russian Federation (Chechens), Somalia, Sri Lanka, Sudan and Turkey. These groups were selected because UNHCR felt they were likely to illustrate Member States’ interpretation of important provisions of the Qualification Directive, and because statistically they were well-represented among asylum-seekers in the Member States concerned.  

The research was conducted between March and July 2007. It looks at six issues for which the Directive sets out rules. The way in which these are interpreted can have a tremendous influence on whether someone gets protection in Europe or not. These are: How does the country deal with requests for protection, when the alleged persecution or harm does not emanate from the State, but from non-State actors? Who are considered to be relevant actors of protection? How is the question of an internal protection (or flight) alternative dealt with? How is qualification for subsidiary protection status assessed? How does the country deal with applications for protection in relation to situations of generalized violence? Are they granting refugee status? Subsidiary protection? Reasons for excluding an applicant from protection.  

Findings: The Study’s findings are mixed. In some respects the Directive has achieved its goal of producing more consistency of decision-making among Member States– for instance with regard to non-State actors (militia, clans, families) of persecution or serious harm. In the past, not all Member States granted protection to people persecuted or at risk from non-State actors, but now they generally do so, though some problems were still observed.  

However, the Study found there are still great differences in approach on other issues – for instance on ‘internal protection’ — whereby a person at risk could find safety in another part of his/her country of origin. For instance, the concept of internal protection was not applied in France to any of the decisions reviewed on applications for asylum from Colombians, whereas decisions in Germany regularly referred to an internal protection alternative.  

Most importantly, the Study concludes that the Directive has not yet ensured that all people in need of international protection receive protection. This is in part due to restrictive interpretations of the refugee definition[3] (based on the 1951 Refugee Convention) and subsidiary protection[4] criteria, and in part to procedural flaws in Member States’ asylum processes. Recommendations: The Study does not propose changes to the law or practice of specific Member States. This is because the issues highlighted are not exclusive to the five States studied, and may well also arise in other Member States.

Still, the analysis shows that there are significant differences in approach, and that some people in need of protection in the EU are not receiving it.  More needs to be done, if the European Union is to reach a common approach to asylum claims which ensures protection to all who need it.

The Study does make recommendations to the European Council, Member States in general and the European Commission. UNHCR proposes several amendments to the Qualification Directive (on ‘internal protection’; on the need for protection for people at risk from indiscriminate violence; and the exclusion clauses). In addition, to fill the gap between law and practice, UNHCR recommends development of guidelines for specific parts of the Qualification Directive, based on previous UNHCR guidance, and on jurisprudence of the European Court of Justice and the European Court of Human Rights. Finally, UNHCR recommends reinforced training of asylum decision makers and quality control mechanisms with regard to asylum procedures.  

30 October 2007

[1] Its full title is Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. [All Member States, apart from Denmark which opted out, are bound by the Directive.] [2] Europa press release, IP/06/1345, Brussels, 10 October 2006.