[ARTICLE 63]

ASYLUM AND MIGRATION POLICY:

UK SURRENDERS MASSIVE CONTROLS TO = COMMON ASYLUM SYSTEM,

THE LOSS OF VETO IN CERTAIN CONDITIONS

AND FINANCIAL PENALTIES WILL BE IMPOSED

[ARTICLE 63]

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

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Policy Area: Treaty on the Functioning of the European Union, Part Three Policies and Internal Actions of the Union, Titl= e IV – Area of Freedom, security and Justice, Chapter 2 – Policies on border checks, asylum and immigration, Article 63

Amendment:

Clause= 2, page 1, line 12, after ‘excluding’ insert –

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‘= ;(i) Article 2, paragraph 65, replacement Chapter 2 and Articles 62 to 63b TEC (TFEU) relating to policies on border checks, asylum and immigration; and <= o:p>

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(ii)&#= 8217;.

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Lisb= on Treaty: =

“= ;65) paragraphs 1 and 2 of Arti= cle 63 shall replace points 1 and 2 of Article 63, paragraph 3 of Article 63 shall replace paragraph 2 of Article 64

ARTICLE 63

1. The Union shall de= velop a common policy on asylum, subsidiary protection and temporary protection w= ith a view to offering appropriate status to any third-country national requiri= ng international protection and ensuring compliance with the principle of n= on-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

2. For the purposes of paragraph 1, the European Parliam= ent and the Council, acting in accordance with the ordinary legislative procedu= re, shall adopt measures for a common European asylum system comprising:

(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;

(b) a uniform status of subsidiary protection for nation= als of third countries who, without obtaining European asylum, are in need of international protection;

massive inflow;

(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;

(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;

(f) standards concerning the conditions for the receptio= n of applicants for asylum or subsidiary protection;

(g) partnership and cooperation with third countries for= the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commissio= n, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.”

Consolidated Treaty Article(s):

“Article 63<= /span>

The Council, acting in accord= ance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas:

(a) criteria and mechanisms f= or determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States,

(b) minimum standards on the reception of asylum seekers in Member States,

(d) minimum standards on procedures in Member States for granting or withdrawing refugee status;

2. measures on refugees and displaced persons within the following areas:

(a) minimum standards for giv= ing temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection,

(b) promoting a balance of ef= fort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons;”=

“Article 64<= /span>

2. In the event of one or more Member States being confronted with an emergency situation characterised by= a sudden inflow of nationals of third countries and without prejudice to paragraph 1, the Council may, acting by qualified majority on a proposal fr= om the Commission, adopt provisional measures of a duration not exceeding six months for the benefit of the Member States concerned.”

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Expl= anation:

The conditions of asylum demanded by = the existing Article 63 TEC have now been met. Under existing Article 63 TEC, t= he Council was already required to adopt within a period of five years after t= he Amsterdam Treaty entered into force, by 2004, measures on asylum, in accordance with = the Geneva Convention of 1951 and the Protocol of 1967 relating to the status of refugees and other Treaties concerning the criteria and mechanisms for determining Member State responsibility for considering an application for asylum, minimum standards on the reception of asylum seekers, minimum stand= ards on qualification of national = of third countries as refugees, minimum standards on procedures for granting or withdrawing refugee status as well as measures concerning to minimum standa= rds for temporary protection of displaced persons and promoting balance of effo= rt between Member States receiving refugees and displaced persons. The 1999 Tampere European = Council decided that a common asylum policy should be implemented and a common Euro= pean asylum system to be set up in two phases. A first set of minimum standards = and measures had to be adopted by 2004 according to Article 63 TEC. The element= s of the first phase are already in place.

The Lisbon Treaty underpins the fact that the crucial objective of the Common European Asylum System will be the establishment of a common asylum procedure. There are four main legal instruments on asylum: the Reception Conditions Directive (minimum standards for the reception of asylum seekers), a Directive on minimum stan= dards in asylum procedures for granting and withdrawing refugee status, a Directi= ve on qualification and content of refugee status and on subsidiary forms of protection and Regulation on criteria and mechanisms for determining the St= ate responsible for examining asylum requests (the Dublin Regulation, replacing= the Dublin Convention). It has also created the European Refugee Fund aiming at enhancing solidarity between Member States. Its aim is to support Member State’s efforts in granting reception conditions as well as actions concerning integration and repatriation of refugees, displaced persons and beneficiari= es of subsidiary protection. The crucial objectiv= e of the Common European Asylum System is the establishment of a common asylum procedure and a uniform status for persons in need of international protect= ion valid throughout the EU. According to the Hague Programme which was adopted= in 2004 this second phase should be adopted by the end of 2010. It should be recalled that the UK is finalising the implementation of the first phase of the CEAS on setting minimum standards. The Commission is planning to present further proposals = to establish a common asylum procedure during 2008. The UK has opted in to all the Regulations and Directives mentioned above and under <= st1:City w:st=3D"on">Lisbon will further bind itself into a fully-integra= ted common asylum policy, the conditions of which will be legislated for in Brussels and not Westminster.

The Lisbon Treaty is a clear reflecti= on of political decisions already confirmed at the Tampere European Council. Hence, the Lisbon Treaty confirms the EU commitment to the development of common asylum policy expressly stating on Article 63 (1) that “The Union shall develop= a common policy on asylum, subsidiary protection and temporary protection wit= h a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement.” The pre= sent Article 63 (1), establishes measures on minimum standards for refugees and asylum seekers Geneva Convention of 28 July 1951 and the Protocol of 31 Jan= uary 1967 relating to the status of refugees, and other relevant treaties. The n= ew Article 63 (1) also states that the common policy on asylum must be in accordance with the Geneva Convention and the Protocol of 31 January 1967 a= nd other relevant treaties. It expressly states that the common policy on asyl= um, subsidiary protection and temporary protection has to comply with the princ= iple of non-refoulement. According to MigrationWatch, “this framework of= legislation … has proved thoroughly unsatisfactory as a framework for tackling the modern phenomenon of very large scale economic migration often disguised as asylum seeking. It results in an extremely lengthy and expensive process for deciding asylum claims and, by restricting the use of detention, it renders removal very difficult.” The UK is giving away control of = such an crucial policy area that the UK Government must oppose it. The common as= ylum policy goes beyond the Geneva Convention and due to accompanying EU social welfarist legislation, this will lead to a huge increase in asylum applications. The evidence shows that the <= st1:place w:st=3D"on">UK is the destination of choi= ce.

It is unsurprising to discover that the grounds for Treaty changes towards a comm= on asylum procedure are well under way. According to the present Article 67(5)= TEC the Council may, acting by qualified majority voting through the co-decision procedure, adopt the asylum-related measures and measures on refugees and displaced persons provided for in Article 63(1) and (2)(a) provided that the Council has, unanimously and after consultation of the European Parliament, adopted Community legislation defining the common rules and basic principles governing those issues. The decision-making has changed = from unanimity voting to QMV and from the consultation procedure to the co-decis= ion – legislation setting = out common rules and basic principles on all these asylum issues have already been adopted. Moreover, according to the Council Decision of 22 December 2004 providing for cert= ain areas covered by Title IV of Part Three of the Treaty establishing the = European Community to be governed by the procedure laid down in Article 251 of that Treaty, from January 2005 measures on refugees and displaced persons concer= ning promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons= are adopted through the co-decision procedure and= by QMV.

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This provision of Lisbon provides a new legal basis for the common European asylum system. According to the new Article 63 (2), measures f= or common European asylum system will be adopted by the Council, acting by QMV, and the European Parliament through the ordinary legislative procedure as at present. However, the competence of the Union will be enhanced. The Lisbon Treaty provides a new legal basis and incorporates the concept of a "common European asylum system.” The Lisbon Treaty confers upon the Union fur= ther powers to harmonise the Member States asylum systems as it sets a new list = of Union competences.

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The measur= es for a common European asylum system comprise “a uniform status of asylum for nationals of third countries, valid throughout the Union,” “a uniform status of subsidiary protection for nationals of third countries wh= o, without obtaining European asylum, are in need of international protection” “a common system of temporary protection for displaced persons in the event of= a massive inflow” “<= span style=3D'font-size:11.0pt;font-family:Arial'>criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection.” The Lisbon Treaty removes the reference to minimum standards so there will co= mmon procedures for the granting and withdrawing of uniform asylum or subsidiary protection status= and standards concerning the conditions for the reception of applicants for asy= lum or subsidiary protection rather than minimum standards. Hence, the minimum standards will be amended into common measures.

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The Treaty provisions block the UK from= acting directly with third countries in managing asylum. The Lisbon Treaty introduces a new clause concerning the external dimension of asylum policy in Article 63 (2/G) which enables the adoption of measures relating to “partnership and coopera= tion with third countries for the purpose of managing inflows of people applying= for asylum or subsidiary or temporary protection.” It should be noted that the European Parliament and the Council adopted in 2004 a Regulation establishing a programme= for financial and technical assistance to third countries in the areas of = migration and asylum (AENEAS) using as legal base Article 179 on development cooperation. This programme is aiming to give financial and technical aid to third countries in order to support their efforts in better managing migratory flows. Article 63 (3) replaces paragraph 2 of Article 64 TEC, stating that “In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It s= hall act after consulting the European Parliament.” The Lisbon Treaty introduces the oblig= ation to consult the European Parliament even if its role is limited and the Trea= ty removes the requirement that such measures should not exceed six months.

As there is no veto power and the mea= sures are adopted through the co-decision procedure, the UK suffers a reduced influenc= e in not only having a say in the development of an EU common asylum policy, but= in asserting its own independent asylum procedures. The UK may also incur financial penalties. The UK has an opt-out from the area of freedom, security and justice, but it is bo= und by the asylum Regulations and Directives on minimum standards which might be subjected to amendments. According to a new Article 4a inserted in the Prot= ocol on the position of the United Kingdom and Ireland, the UK is not bound by measures amending existing measures yet there may be difficulties with this assertio= n. If the Council determines that the non-participation of the United K= ingdom in the amended version of an existing measure makes the application of that measure inoperable for other Member States, the Council may urge the UK to participate. If the = UK decides not to participate in the existing measure, it is no longer binding upon it and it will bear the direct financial consequenc= es of opting out. Theref= ore, the UK might be clearly forced into participating in asylum legislation which runs counter to the national interest. The Lisbon Treaty will hamper the UK̵= 7;s ability to make its own asylum policies and laws. It will lead to a further loss of the UK’s control over its asylum system.