Proposal to the Council for a Joint Action based on Article K.3 (2) (b) of the Treaty on European Union concerning temporary protection of displaced persons (97/C 106/07) COM(97) 93 final - 97/0081(CNS)

(Submitted by the Commission on 20 March 1997)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article K.3 (2), point (b) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas, pursuant to Article K.1, point 1, of the Treaty, asylum policy is regarded as a matter of common interest for the Member States;

Whereas, in conformity with Article K.2 of the Treaty, the principle of non-refoulement, guaranteed by the Convention relating to the Status of Refugees of 28 July 1951, and the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, should be observed in all situations;

Whereas the number of displaced persons in Europe has dramatically increased in recent years;

Whereas the Member States and the institutions of the Union have repeatedly expressed their concern about the situation of displaced persons, in particular in the conclusion on people displaced by the conflict in the former Yugoslavia, adopted by the ministers with responsibility for immigration at their meeting in London on 30 November and 1 December 1992, the resolution on certain common guidelines as regards the admission of particularly vulnerable groups of persons from the former Yugoslavia, adopted by the ministers with responsibility for immigration at their meeting in Copenhagen on 1 and 2 June 1993, the Commission communication (1) to the Council and the European Parliament on immigration and asylum policies and the European Parliament resolution (2) on the Commission communication on immigration and asylum policies;

Whereas the Council has adopted on 25 September 1995 a resolution (3) on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis and, on 4 March 1996, a Decision (4) on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis;

Whereas the Council has recognized in the abovementioned resolution that an actual or probable mass influx of displaced persons into the territory of the Member States may require prompt and coordinated action in order to avert a serious threat to human life;

Whereas such a coordinated approach should demonstrate solidarity between the Member States and reflect Europe's humanitarian tradition, thus ensuring that all persons in need of international protection within their jurisdiction are treated in conformity with human dignity;

Whereas it is necessary, therefore, to decide on the establishment of a temporary protection regime in specific situations at the level of the Union;

Whereas it is also necessary to lay down the minimum content of the rights relating to the status of the displaced persons who will be placed under such a regime of temporary protection;

Whereas decisions to set up specific temporary protection regimes implementing this joint action should be taken by qualified majority,

HAS ADOPTED THIS JOINT ACTION:

Article 1

Definitions

For the purpose of this joint action:

(a) 'temporary protection regime` means an arrangement, pursuant to this joint action, offering protection of a temporary nature to persons in need of international protection;

(b) 'persons in need of international protection` means any third country national or stateless person who has left his or her country of residence and whose safe return under humane conditions is impossible in view of the situation prevailing in that country, in particular:

- persons who have fled from areas affected by armed conflict and persistent violence;

- persons who have been or are under a serious risk of exposure to systematic or widespread human rights abuses, including those belonging to groups compelled to leave their homes by campaigns of ethnic or religious persecution, and

- persons who for other reasons specific to their personal situation are presumed to be in need of international protection;

(c) 'mass influx of persons in need of international protection` means the arrival within the Union of a significant number of persons who claim to be in need of international protection or a strong probability that such a situation may soon arise;

(d) 'Geneva Convention` means the Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967;

(e) 'recognized refugees` means persons who have obtained refugee status under the Geneva Convention.

Article 2

General provisions

1. This joint action shall not apply to persons who were admitted by Member States in the context of national temporary protection regimes set up before the entry into force of this joint action.

2. Member States shall apply the provisions of this joint action without discrimination as to race, religion, or nationality.

3. This joint action is without prejudice to the prerogative of Member States to grant more favourable conditions to persons in need of international protection.

Article 3

The establishment of temporary protection regimes

1. In cases of mass influx of persons in need of international protection, the Council, taking into consideration whether adequate protection can be found in the region of origin, shall decide to establish a temporary protection regime in accordance with the procedure set out in Article 12 (1).

2. The decision referred to in paragraph 1 shall determine the specific groups of persons to which the temporary protection regime applies and its duration.

Article 4

Revision and/or phasing out of temporary protection regimes

Every year, and at least six months before the end of a temporary protection regime, the Commission shall submit to the European Parliament and the Council a report on the situation in the country of origin and on the application of the temporary protection regime by the Member States, as well as on its financial implications.

In the light of this report, and at least three months before the end of a temporary protection regime, the Council shall, in accordance with the procedure set out in Article 12 (1),

- decide to revise the decision taken in accordance with Article 3, or

- decide on the phasing out of the temporary protection regime and on the return of the persons concerned, if the situation in the country of origin allows a safe return under humane conditions.

In organizing the return, priority will be given to the furtherance of voluntary repatriation, in close cooperation with the international organizations concerned, and in particular the United Nations High Commissioner for Refugees.

Article 5

Assistance to Member States which are particularly affected

On the basis of the report of the Commission referred to in Article 4, the Council shall examine how best to assist Member States which have been particularly affected by the mass influx of persons in need of international protection.

Article 6

Residence authorization

Member States shall deliver a residence authorization to the beneficiaries of the temporary protection regime for the duration of the regime.

Article 7

Family reunification

1. Member States shall ensure that beneficiaries of a temporary protection regime have the right to family reunification with respect to their spouses and their minor and dependent children.

2. When deciding on family reunification, the absence of documentary proof of the marriage or of the filiation of children should not in itself be considered an impediment. All the relevant facts and circumstances should be taken into account in order to assess the validity of any evidence and the credibility of the claimant's statements.

Article 8

Employment and social security

Member States shall ensure that beneficiaries of a temporary protection regime will be granted permission to engage in gainful activity. There shall be equality of treatment between beneficiaries of a temporary protection regime and recognized refugees regarding remuneration, social security and other working conditions.

Article 9

Housing, welfare benefits and education

1. Member States shall endeavour to provide the beneficiaries of a temporary protection regime with housing facilities similar to those granted to recognized refugees. However, as a provisional measure, temporary housing may be offered during a period of one year from the beginning of the temporary protection regime.

2. Member States shall ensure that the beneficiaries of a temporary protection regime receive all the necessary support, in particular with regard to means of subsistence and medical care. Where the beneficiaries have access to gainful activity, their ability to provide for their own subsistence is to be taken into account in determining the level and nature of support arrangements.

3. Member States shall ensure that the beneficiaries of a temporary protection regime have access to public education under the same conditions as recognized refugees.

Article 10

Asylum

The examination of an application for asylum under the Geneva Convention introduced by a beneficiary of a temporary protection regime may be postponed for as long as the Council has not adopted a decision on the phasing out of the temporary protection regime in accordance with Article 4, second indent, but in any event for a period not exceeding five years from the beginning of the temporary protection regime.

Article 11

Exclusion clauses

The benefit of a temporary protection regime shall not apply to any person with respect to whom there are serious reasons for considering that 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,

- committed a serious non-political crime outside the country of refuge prior to his or her arrival on the territory of one of the Member States,

- been guilty of acts contrary to the purposes and principles of the United Nations.

A Member State may refuse the benefit of a temporary protection regime to any person whom there are reasonable grounds for regarding as a danger to the security of that Member State, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State.

Article 12

Implementing measures

1. On the initiative of any Member State or the Commission, which may ask the United Nations High Commissioner for Refugees for his opinion, the Council shall adopt the measures implementing this joint action, as referred to in Articles 3 and 4, acting by a qualified majority.

2. The implementing measures referred to in paragraph 1 shall be published in the Official Journal of the European Communities.

Article 13

Long-term protection measures

If, five years after the introduction of a temporary protection regime, the Council has not adopted a decision to phase out the regime in accordance with Article 4, Member States should examine whether long-term measures should be introduced for beneficiaries of temporary protection.

Article 14

Final provision

This joint action shall enter into force on the day of its publication in the Official Journal of the European Communities.

(1) COM(94) 23 final, 23. 2. 1994.

(2) OJ No C 269, 16. 10. 1995, p. 156.

(3) OJ No C 262, 7. 10. 1995, p. 1.

(4) OJ No L 63, 13. 3. 1996, p. 10.