Changes from report parliamentary committee draft to plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

Changedon the proposal for a regulation of the European Parliament and of the Council 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,protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents

▸9 unchanged paragraphs

(COM(2016)0466 – C80324/2016 – 2016/0223(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2016)0466),

– having regard to Article 294(2) and Articles 78(2)(a) and (b) and 79(2)(a) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C80324/2016),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the European Economic and Social Committee of 14 December 2016,

– having regard to the opinion of the Committee of the Regions of 8 February 2017,

– having regard to Rule 59 of its Rules of Procedure,

Changed– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Employment and Social Affairs (A80000/2017),(A8-0245/2017),

1. Adopts its position at first reading hereinafter set out;

Changed2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposalreplaces, substantially amends or replaceintends itto withsubstantially anotheramend text;its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

ChangedRecital 1: (1) A number of substantive changes are to be made to Council Directive 2011/95/EU 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 granted31 (recast). To ensure harmonisation and more convergence in asylum decisionsdecisions, andto achieve high common standards of protection across the Member States, and, as regards the content of international protection in orderprotection, to encourage beneficiaries of international protection to remain in the Member State that grantsgranted them protection and ensure an equality of treatment of beneficiaries of international protection that Directive should be repealed and replaced by a Regulation.

Change 2

RemovedThe Rapporteur prefers to lay down positive incentives for beneficiaries of international protection to remain in the Member State that grants them protection.

AddedRecital 2: (2) A common policy on asylum, including a Common European Asylum System (CEAS) which is based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967 (Geneva Convention), is a constituent part of the European Union’s objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Union. Such a policy should be governed by the principle of solidarity and fair sharing of responsibility, between the Member States. The Geneva Convention is the cornerstone of the international legal regime for the protection of refugees.

RemovedRecital 2: (2) A common policy on asylum, including a Common European Asylum System (CEAS) which is based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967 (Geneva Convention), is a constituent part of the European Union’s objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Union. Such a policy should be governed by the principle of solidarity and fair sharing of responsibility, between the Member States.

AddedRecital 3: (3) The CEAS is based on common standards for asylum procedures, recognition and protection offered at Union level, reception conditions and a system for determining the Member State responsible for asylum seekers. Notwithstanding progress achieved so far in the progressive development of the CEAS, there are still significant disparities between the Member States in the types of procedures used, the recognition rates, the type of protection granted, the level of material reception conditions and benefits given to applicants for and beneficiaries of international protection. These divergences undermine the objective of ensuring that all applicants are equally treated wherever they apply in the Union.

RemovedGenuine solidarity involves the proper distribution of those seeking international protection across the Member States. Financial solidarity should not be a preferred form of solidarity.

AddedRecital 3 a (new): (3a) At present, Member States only recognise asylum decisions issued by other Member States where those decisions refuse to grant international protection. A move by Member States towards a mutual recognition of asylum decisions issued by other Member States which grant international protection to persons in need would ensure the proper implementation of Article 78(2) of the Treaty on the Functioning of the European Union (TFEU), which calls for a uniform status of asylum, valid throughout the Union,.

RemovedRecital 3 a (new): (3a) At present, Member States only recognise asylum decisions issued by other Member States where those decisions refuse to grant international protection. In order to ensure the proper implementation of Article 78(2) of the Treaty on the Functioning of the European Union (TFEU), which calls for a uniform status of asylum valid throughout the Union, Member States should move towards a mutual recognition of asylum decisions issued by other Member States which grant international protection to persons in need.

AddedRecital 4: (4) In its Communication of 6 April 2016,32 the Commission set out its options for improving the CEAS, namely to establish a sustainable and fair system for determining the Member State responsible for asylum seekers, to reinforce the Eurodac system, to achieve greater convergence in the EU asylum system, to prevent secondary movements within the European Union and a new mandate for the European Union Agency for Asylum (the Agency). That Communication is in line with calls by the European Council on 18-19 February 201633 to make progress towards reforming the EU's existing framework so as to ensure a humane and efficient asylum policy. However, the Communication fails to propose a way forward in line with the holistic approach to migration set out by the European Parliament in its own initiative report of 12 April 2016.

RemovedUltimately, full mutual recognition of international protection decisions taken by Member States will be necessary in order to establishment a truly uniform status of international protection in the Union. The rapporteur considers this should be based on a uniform status of asylum and of subsidiary protection valid throughout the Union; common procedures, criteria and standards concerning the conditions for the reception of applicants for asylum or subsidiary protection.

AddedRecital 5: (5) A common Union policy on international protection should be based on a uniform status. To move towards a well-functioning CEAS, substantial progress should be made regarding the convergence of national asylum systems with special regard to differing recognition rates and type of protection status in the Member States. At the same time, it is important not to overburden administratively the authorities of the Member States. Accordingly, rules should be strengthened to ensure that protection is granted to those who need it. While acknowledging the legal differences between refugee status and subsidiary protection status, a harmonised duration for residence permits should be established, which should take full account of the current best practice in the Member States. In order to ensure that equal high standards of protection are achieved in all Member States, the rights granted to beneficiaries of international protection should be further clarified and harmonised.

RemovedRecital 4: (4) In its Communication of 6 April 2016,32 the Commission set out its options for improving the CEAS, namely to establish a sustainable and fair system for determining the Member State responsible for asylum seekers, to reinforce the Eurodac system, to achieve greater convergence in the EU asylum system, to prevent secondary movements within the European Union and a new mandate for the European Union Agency for Asylum (the Agency). That Communication is in line with calls by the European Council on 18-19 February 201633 to make progress towards reforming the EU's existing framework so as to ensure a humane and efficient asylum policy. However, it fails to propose a way forward in line with the holistic approach to migration set out by the European Parliament in its own initiative report of 12 April 2016.

AddedRecital 6: (6) A Regulation is therefore necessary to ensure a faster and more consistent level of harmonisation throughout the Union and to provide a higher degree of legal certainty and transparency.

RemovedRecital 5: (5) A common Union policy on international protection should be based on a uniform status. To move towards a well-functioning CEAS, substantial progress should be made regarding the convergence of national asylum systems with special regard to differing recognition rates and type of protection status in the Member States. At the same time, it is important not to overburden administratively the authorities of the Member States. Accordingly, rules should be strengthened to ensure that protection is granted to those who need it. Moreover, a harmonised duration for residence permits should be established, which should take full account of the current practice in the Member States, and the rights granted to beneficiaries of international protection should be further clarified and harmonised.

AddedRecital 7: (7) The main objective of this Regulation is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection and, on the other hand, to ensure that a common set of rights is available to refugees and beneficiaries of subsidiary protection in all Member States.

RemovedThe harmonised duration of residence permits granted to those in need of international protection should take full account of current practice across the Member States and should not be based on a “race to the bottom” principle.

RemovedRecital 7: (7) The main objective of this Regulation is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection and, on the other hand, to ensure that a common set of rights is available to all those persons in need of international protection in all Member States.

RemovedAll persons in need of international protection should be entitled to the same rights across the Union.

Recital 8: (8) The further approximation of rules on the recognition and content of refugee and subsidiary protection status should moreover help to limit the secondary movement of applicants for international protection and beneficiaries of international protection between Member States.

Change 3

RemovedIt is not clear that differences in transposing the existing Qualifications Directive are the cause of secondary movements.

Recital 9: (9) This Regulation does not apply to other national humanitarian statuses granted by Member States under their national law to those who do not qualify for the refugee status or the subsidiary protection status.

Change 4

RemovedSo long as national statuses for humanitarian protection continue to exist, it is very difficult to understand how there would not be a risk of confusion with refugee status and subsidiary protection status.

Recital 10: (10) Successful resettlement candidates should be granted international protection. Accordingly, the provisions of this Regulation on the content of international protection should apply.

Change 5

RemovedThe Rapporteur prefers to lay down positive incentives for beneficiaries of international protection to remain in the Member State that grants them protection.

AddedRecital 11: (11) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (the Charter), the European Convention on Human Rights (the ECHR) and the European Social Charter. In particular this Regulation seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members and to promote the application of the Charter's Articles relating to human dignity, respect for private and family life, freedom of expression and information, right to education, freedom to choose an occupation and right to engage in work, freedom to conduct a business, right to asylum, protection in the event of removal, expulsion or extradition, equality before the law, non-discrimination, rights of the child, social security and social assistance, health care, and should therefore be implemented accordingly.

RemovedRecital 11: (11) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (the Charter). In particular this Regulation seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members and to promote the application of the Charter's Articles relating to human dignity, respect for private and family life, protection in the event of removal, expulsion or extradition, freedom of expression and information, right to education, freedom to choose an occupation and right to engage in work, freedom to conduct a business, right to asylum, non-discrimination, rights of the child, social security and social assistance, health care, and should therefore be implemented accordingly.

AddedRecital 13: (13) The resources of the Asylum, Migration and Integration Fund should be used to provide adequate support to Member States’ efforts in implementing the high standards set by the Regulation, with priority to those Member States that are faced with specific and disproportionate pressure on their asylum systems, due in particular to their geographical or demographic situation. While the general principle of the prohibition of double funding should be respected, Member States should take full advantage, at all levels of governance, of the possibilities offered by funds which are not directly related to asylum and migration policy but which can be used to fund actions in that area, for example integration actions, such as the funds available under the European Social Fund, the Fund for European Aid to the Most Deprived, Horizon 2020, the European Regional Development Fund, and the Rights, Equality and Citizenship Programme. Those funds should be made directly accessible to local and regional authorities for actions that fall directly under their responsibilities.

RemovedRecital 13: (13) The resources of the Asylum, Migration and Integration Fund should be used to provide adequate support to Member States’ efforts in implementing the standards set by the Regulation, in particular to those Member States that are faced with specific and disproportionate pressure on their asylum systems, due in particular to their geographical or demographic situation. In addition, Member States should take full advantage, at all levels of governance, of the possibilities offered by funds which are not directly related to asylum and migration policy but which can be used to fund actions in that area, for example integration actions, such as those available under the European Social Fund, the Fund for European Aid to the Most Deprived, Horizon 2020, the European Regional Development Fund and the Rights, Equality and Citizenship Programme. Those funds should be made directly accessible to local and regional authorities for actions that fall directly under their responsibilities.

AddedRecital 14: (14) The Agency should provide adequate support in the application of this Regulation, in particular by providing experts to assist the Member State authorities to receive, register, and examine applications for international protection, providing updated information regarding third countries, including Country of Origin Information, and other relevant guidelines and tools. When applying this Regulation, Member States' authorities should take into account operational standards, indicative guidelines, and best practices developed by the Agency. When assessing applications for international protection, Member States' authorities should take into account the information, reports, common analysis and guidance on the situation in countries of origin developed at Union level by the Agency and the European networks on country of origin information in accordance with Articles 8 and 10 of Regulation34. In addition, when assessing applications for international protection, Member States' authorities should take into account all relevant information from the UNHCR and from relevant civil society organisations.

RemovedThe correct title of the Fund is the Asylum, Migration and Integration Fund. Furthermore, Member States should be encouraged to maximise their absorption capacity in relation to other funds which might provide financing for integration actions for persons in need of international protection.

AddedRecital 15: (15) When applying this Regulation the ‘best interests of the child’ should be a primary consideration, in line with the 1989 United Nations Convention on the Rights of the Child. In assessing the best interests of the child, Member States' authorities should in particular take due account of the principle of family unity, the minor’s well-being and social development, the minor's cultural origin and linguistic skills, safety and security considerations and the views of the minor in accordance with his or her age and maturity. Children applicants then turning 18 before a decision on their application is taken would thus still benefit from family unity.

RemovedRecital 14: (14) The Agency should provide adequate support in the application of this Regulation, in particular by providing experts to assist the Member State authorities to receive, register, and examine applications for international protection, providing updated information regarding third countries, including Country of Origin Information, and other relevant guidelines and tools. When applying this Regulation, Member States' authorities should take into account operational standards, indicative guidelines, and best practices developed by the Agency. When assessing applications for international protection, Member States' authorities should take account of the information, reports, common analysis and guidance on the situation in countries of origin developed at Union level by the Agency and the European networks on country of origin information in accordance with Articles 8 and 10 of Regulation34 . In addition, when assessing applications for international protection, Member States should take into account all relevant information from the UNHCR and from civil society organisations active on the ground.

AddedRecital 16: (16) The notion of family members should take into account family diversity, the different particular circumstances of dependency and the special attention to be paid to the best interests of the child. It should also reflect the reality of current migratory trends, according to which applicants often arrive to the territory of the Member States after a prolonged period of time in transit. The notion should therefore include families formed outside the country of origin, but before their arrival on the territory of the Member State, excluding, in all cases, forced marriages. The notion of spouse and unmarried partner should not distinguish the spouses or such partners on the basis of their gender.

RemovedWhile the rapporteur agrees that information from the European Asylum Support Office should be used by Member States when assessing applications for international protection, the Agency should not be the sole source of information. UNHCR and other relevant actors on the ground also provide detailed information on the situation in third countries.

AddedRecital 21 a (new): (21a) While the burden of proof rests, in principle, on the applicant to substantiate his or her application, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the determining authority. Where aspects of the applicant's statements are not supported by documentary or other evidence, he or she should be given the benefit of the doubt if he or she has made a genuine effort to substantiate his or her application and has submitted all relevant elements at his or her disposal, and his or her statements are found to be coherent and plausible.

RemovedRecital 16: (16) The notion of family members should take into account family diversity, the different particular circumstances of dependency and the special attention to be paid to the best interests of the child. It should also reflect the reality of current migratory trends, according to which applicants often arrive to the territory of the Member States after a prolonged period of time in transit. The notion should therefore include families formed both outside the country of origin and families formed after their arrival on the territory of the Member State, excluding, in all cases, forced marriages. The notion of spouse and unmarried partner should not distinguish the spouses or such partners on the basis of their gender.

RemovedFamilies formed after their arrival on the territory of the Member State should be included under the definition of family members. However, forced marriages - irrespective of where they take place - should be excluded.

Recital 22: (22) In particular, it is necessary to introduce common concepts of protection needs arising sur place, sources of harm and protection, and persecution, including the reasons for persecution.

Change 6

RemovedThe Rapporteur does not believe that the concept of internal protection is sufficiently well developed, clear or safe to be applied in a completely harmonised manner.

AddedRecital 23: (23) Protection can be provided, where they are willing and able to offer protection, either by the State or by parties or organisations, mandated by the State, including international organisations, meet the conditions set out in this Regulation, and control a region or a larger area within the territory of the State. Such protection should be effective and of a non-temporary nature.

RemovedRecital 23: (23) Protection can be provided, where they are willing and able to offer protection, either by the State or by parties or organisations, mandated by the State, including international organisations, meeting the conditions set out in this Regulation, which control a region or a larger area within the territory of the State. Such protection should be effective and of a non-temporary nature.

AddedRecital 24: (24) Internal protection against persecution or serious harm might be effectively available to the applicant in a part of the country of origin where he or she can safely and legally travel to, gain admittance to and can reasonably be expected to settle. It should be possible for the assessment of whether such internal protection exists to form part of the assessment of the application for international protection, provided that the State or agents of the State are not the actors of persecution or serious harm. Notwithstanding the obligation of the applicant to cooperate during the procedure, the burden of demonstrating the availability of internal protection should exclusively fall on the determining authority. However, this should not preclude the applicant from presenting evidence to rebut any finding by the determining authority that internal protection is available.

RemovedArticle 1D of Geneva convention also applies to persons who receive protection by the UNHCR which has to be mandated by the State in order to be present on the territory of that State. Furthermore, non-State actors should not be considered as actors of protection, unless they have been mandated by the State specifically to do so, as they cannot be held accountable under international law, they could only provide protection which is temporary and limited in its effectiveness.

AddedRecital 25: (25) Where the State or agents of the State are the actors of persecution or serious harm, there should be a presumption that effective protection is not available to the applicant and the provision relating to internal protection should not apply. The assessment of the best interests of the child should be a primary consideration of the relevant authorities when assessing the conditions for internal protection in the case of minors, including the availability of appropriate care and custodial arrangements where the applicant is an unaccompanied minor.

RemovedRecital 24: (24) Internal protection against persecution or serious harm might be effectively available to the applicant in a part of the country of origin where he or she can safely and legally travel to, gain admittance to and can reasonably be expected to settle. The assessment of whether such internal protection exists might form part of the assessment of the application for international protection, provided that the State or agents of the State are not the actors of persecution or serious harm. The burden of demonstrating the availability of internal protection should exclusively fall on the determining authority but should not preclude the applicant from presenting evidence to rebut any finding by the determining authority that internal protection is available.