Historic vote extends EU asylum standards to transgender people

The European Parliament formally adopted a new set of asylum rules on October 27th for the European Union. The binding rules now include gender identity as a ground of persecution, which EU Member States must take into account. Governments have already agreed to the changes, which are final. Until now, EU asylum law foresaw that “gender related aspects might be considered” by national asylum authorities when examining the potential persecution of specific social groups in their country of origin. 


 The resolution adopted today has replaced this text, and now specifies that “gender related aspects, including gender identity, shall be given due consideration”. The text now refers to gender identity specifically, and obliges Member States to consider gender-related aspects. Before, EU countries could still choose not to consider aspects linked to the applicant’s gender in asylum claims. The text applies to all EU Member States except the United Kingdom, which opted out of EU asylum policies. The resolution was successfully drafted and negotiated by Jean Lambert a British Member of the European Parliament in the Greens/EFA group. This is the first time a binding EU Directive includes gender identity. Dennis de Jong MEP, Vice-president of the LGBT Intergroup and responsible for asylum policies in the GUE/NGL group, commented: “Around the world, transgender people can be persecuted for who they are. This reviewed Directive will recognise the danger they face, and it will commit EU Member States to taking gender identity into account in asylum claims. 


I hope in a future revision it will also become mandatory to consider the sexual orientation of applicants.” Sirpa Pietikäinen MEP, Vice-president of the LGBT Intergroup, added: “I am very proud that my colleagues from the centre-right EPP group supported this change, regardless of the views they hold on asylum in general. The European Union is only starting to recognise gender identity as a ground of persecution, but I hope today’s vote will help protect more lives.” The binding rules will apply after they are transposed into EU Member States’ national law, except for the United Kingdom, Ireland and Denmark which opted out of the process. Due to access the EU in July 2013, Croatia is also expected to adapt its asylum laws.

EXPLANATORY STATEMENT

The proposal from the Commission for the recast of the original Directive 2004/83/EC forms part of the move towards a Common European Asylum Policy by 2012. For the original Directive, the European Parliament was only consulted: now, following the entry into force of the Lisbon Treaty, the Parliament is in a position of co-decision. The proposal now being put to Plenary is the result of six informal trilogues , hopefully resulting in a First Reading agreement. The existing Directive has two key elements: the grounds on which someone qualifies for refugee status or subsidiary protection and the content of that protection in terms of residence, employment and social rights within the Member State responsible for protection. The Commission brought forward the recast proposal (Directive COM (2009) 551 final 2) as a result of the required review of the earlier Directive and developing jurisprudence. It is clear that there are considerable variations in practice between Member States in their implementation of the current Directive. This leads to wide variation in recognition rates overall and risks the continuation of secondary movements of applicants. While some of the disparities can be dealt with through improved co-operation, in which the new European Asylum Support Office should play an important role, there is a need for clarification in the legislative framework - the Directive itself - in order to provide a stronger, clearer framework for the implementation process. An important change proposed here is to approximate the two categories of protection more closely and thus to generally refer to beneficiaries of international protection. This will act to remind implementing authorities that the two categories of protection are complementary: subsidiary protection is not of less importance for individuals at risk of serious harm if they return to their country of origin. The proposal also aims to approximate the entitlements of the content of protection more closely, access to the labour market is perhaps the most significant. The majority of Member States already make little difference between the two groups. However, a difference in treatment will still remain possible in three areas: social welfare (which reflects the status quo - social security is covered in the related recital); integration measures and residence permits - although some progress was made on the latter, where a renewal after one year for those with subsidiary protection must be of at least two years duration (few Member States currently differentiate.) The EP took the view that this was important for integration and to give a sense of greater stability to the individual. Progress has also been made on issues relating to gender and gender identity. These are now explicitly mentioned in the Articles in relation to social groups at risk of persecution. A reference has also been added in the Recitals to "customs and legal traditions" which could result in damaging outcomes, such as genital mutilation. On the best interests of the child, it proved difficult to find a definition for the Articles, so we have agreed to a brief set of principles in Recital 17. The proposed amendment to Article 8.2 dealing specifically with the care of unaccompanied minors now appears in the related recital. Continuity of care for such children is a strand that should be pursued throughout the CEAS, hence the changes to Article 31.5. which should provide the necessary continuity in tracing family members. The EP views on the extension of the definition of family proved unacceptable to Council, although there is some small progress concerning the addition of either parent or another relative in connection to the beneficiary when already present. It remains to be seen if the non-inclusion of married minors leaves a protection gap - hence the inclusion of Article 2 in the review clause. Despite the very explicit wording of this Article and its relation to protection needs, some Member States wish to keep a very narrow definition of family, fearing future claims for family reunification - although that Directive clearly states the rules relating to refugees. Married minors are now mentioned in recital 36a in relation to benefits. Article 7 relates to Actors of Protection. There is a strongly held view in the EP that, in principle, only states can be viewed as actors of protection: international bodies do not have the attributes of a state and cannot be parties to international conventions. The limited change to the original Article aim to strengthen the requirements demanded of non-state actors if they are to be viewed as able to deliver effective and durable (now non-temporary) protection. Article 7 also appears in the review clause due to the continuing inclusion of non-state bodies. Article 8 concerns internal protection within the country-of-flight. Here, Council chose to stay closer to the Commission wording, although parts of the EP amendments are taken up in recitals - especially relating to a strong position against internal protection where the state is the actor of persecution. Correlation tables remain an area of difficulty, but your Rapporteur recommends the substance of the proposed agreement to the House as a step forward from the existing Directive, offering greater security for beneficiaries of international protection, greater clarity for Member States, and will hopefully result in a reduction of the current disparities in delivery of a fair and effective system.

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CHAPTER V

Qualification for subsidiary protection

Article 15

Serious harm

Serious harm consists of:

(a)       death penalty or execution; or

(b)      torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or

(c)       serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

Article 16

Cessation

1.        A third country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required.

2.        In applying paragraph 1, Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the person eligible for subsidiary protection no longer faces a real risk of serious harm.

3.        Paragraph 1 shall not apply to a beneficiary of subsidiary protection who is able to invoke compelling reasons arising out of previous serious harm for refusing to avail himself of the protection of the country of nationality or, being a stateless person with no nationality, of the country of former habitual residence.

Article 17

Exclusion

1.        A third country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that:

(a)       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;

(b)      he or she has committed a serious crime;

(c)       he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations;

(d)      he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.

2.        Paragraph 1 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein.

3.        Member States may exclude a third country national or a stateless person from being eligible for subsidiary protection, if he or she prior to his or her admission to the Member State has committed one or more crimes, outside the scope of paragraph 1, which would be punishable by imprisonment, had they been committed in the Member State concerned, and if he or she left his or her country of origin solely in order to avoid sanctions resulting from these crimes.

CHAPTER VI

Subsidiary Protection Status

Article 18

Granting of subsidiary protection status

Member States shall grant subsidiary protection status to a third country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V.

Article 19

Revocation of, ending of or refusal to renew subsidiary protection status

1.        Concerning applications for international protection filed after the entry into force of ▌Directive 2004/83/EC, Member States shall revoke, end or refuse to renew the subsidiary protection status of a third country national or a stateless person granted by a governmental, administrative, judicial or quasi-judicial body, if he or she has ceased to be eligible for subsidiary protection in accordance with Article 16.

2.        Member States may revoke, end or refuse to renew the subsidiary protection status of a third country national or a stateless person granted by a governmental, administrative, judicial or quasi-judicial body, if after having been granted subsidiary protection status, he or she should have been excluded from being eligible for subsidiary protection in accordance with Article 17(3).

3.        Member States shall revoke, end or refuse to renew the subsidiary protection status of a third country national or a stateless person, if:

(a)       he or she, after having been granted subsidiary protection status, should have been or is excluded from being eligible for subsidiary protection in accordance with Article 17(1) and (2);

(b)      his or her misrepresentation or omission of facts, including the use of false documents, were decisive for the granting of subsidiary protection status.

4.          Without prejudice to the duty of the third country national or stateless person in accordance with Article 4(1) to disclose all relevant facts and provide all relevant documentation at his/her disposal, the Member State, which has granted the subsidiary protection status, shall on an individual basis demonstrate that the person concerned has ceased to be or is not eligible for subsidiary protection in accordance with paragraphs 1, 2 and 3 of this Article.

CHAPTER VII

Content of international protection

Article 20

General rules

1.        This Chapter shall be without prejudice to the rights laid down in the Geneva Convention.

2.        This Chapter shall apply both to refugees and persons eligible for subsidiary protection unless otherwise indicated.

3.        When implementing this Chapter, Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of trafficking, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

4.        Paragraph 3 shall apply only to persons found to have special needs after an individual evaluation of their situation.

5.        The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Chapter that involve minors.

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