McAdam J. The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime

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exception, that both refugees and beneﬁciaries of subsidiary protection

would receive necessary assistance in terms of social welfare and means of

subsistence under the same conditions as nationals.

However, while the core of that provision remains, a second paragraph

has been added which permits States to ‘limit social assistance granted to

beneﬁciaries of subsidiary protection status to core beneﬁts’, albeit at the

same levels and eligibility conditions as nationals. This exception clause

was added at Germany’s insistence, which throughout negotiations had

sought to differentiate between the entitlements of refugees and beneﬁ-

ciaries of subsidiary protection.

254

A recital indicates that ‘core beneﬁts’

refers to ‘at least minimum income support, assistance in case of

illness, pregnancy and parental assistance, insofar as they are granted to

nationals according to the legislation of the Member State concerned’,

with the ‘modalities and detail’ of their provision to be determined by

national law.

A German proposal in February 2003 separated the original concept

of ‘necessary assistance in terms of social welfare and means of subsist-

ence’ into two, granting ‘social welfare’ to refugees without sufﬁcient

resources for their subsistence, and ‘means of subsistence’ to beneﬁciaries

of subsidiary protection without sufﬁcient resources.

255

This promoted a

hierarchical relationship between the two forms of international protec-

tion, since social welfare, for refugees, provided more comprehensive

beneﬁts than subsistence aid.

Resisting the German distinction, an alternative proposal was put for-

ward three months later by another delegation, stipulating that: ‘The

minimum level of assistance granted must not be lower than the assist-

ance granted to asylum seekers in line with Council Directive 2003/9/

EC laying down minimum standards for the reception of asylum

seekers.’

256

However, this drew criticism on the grounds that this would

allow Member States to grant the very low level of rights contained in

the Reception Conditions Directive,

257

rather than rights equivalent

to nationals.

In March 2004, the German delegation issued a note to the Justice and

Home Affairs Counsellors, setting out alternative texts to articles 23, 24,

26, 28, 29 and 33.

258

It reiterated in large part the existing text of article

28, but inserted its own amendments in bold:

Member States shall ensure that beneﬁciaries of refugee status and of subsidiary

protection status who do not have sufﬁcient resources to enable their subsistence

254

Ultimately, the bulk of Germany’s amendments were adopted. See 7482/04 ASILE 16 (n251).

255

6566/03 ADD 1 ASILE 10 (n200).

256

9945/03 ADD 1 ASILE 32 (n213)

257

Reception Conditions Directive (n201).

258

7469/04 ASILE 15 (n247). Formerly arts 21, 22, 24, 26, 27 and 31.

The European Union Qualification Directive 511

receive, in the Member State that has granted such statuses, the necessary

assistance in terms of social assistance as nationals of that Member State.

With regard to beneﬁciaries of subsidiary protection Member States may limit

equal treatment with nationals of the Member State in respect of social

assistance to core beneﬁts.

Belgium, France and the Netherlands all preferred an earlier version of

the text set out in 10576/03 ASILE 40, which provided equal access to

social welfare and subsistence for both refugees and beneﬁciaries of sub-

sidiary protection.

259

Although the ﬁnal version of the text includes a

recital which seeks to encourage States to provide equal treatment, the

operative paragraphs do not require this. Not only does the current pro-

vision permit a hierarchical distinction between refugees and beneﬁciaries

of subsidiary protection, but it may also encourage differing practices in

Member States, undermining the Directive’s aim of harmonization.

5.6 Health care (Article 29)

260

This was another provision which required signiﬁcant political comprom-

ise. As with article 28, Germany pressed for a distinction between treat-

ment of refugees and beneﬁciaries of subsidiary protection and ultimately

succeeded.

From early on in the negotiation process, Germany made it clear that

it sought distinctions between the different statuses.

261

One of its ﬁrst

suggestions was to grant refugees access to heath care ‘under the same

conditions as nationals of the Member State’, while limiting access for

beneﬁciaries of subsidiary protection to ‘necessary health care in case

of sickness, pregnancy and maternity under the same conditions as

nationals’.

262

As with article 28, there was a proposal to set the minimum level of

assistance at that provided by the Reception Conditions Directive,

263

but

this was similarly rejected on the grounds that it would set standards

too low.

The ﬁnal version is structured similarly to article 28. Article 29(1) pro-

vides the general rule that ‘beneﬁciaries of refugee or subsidiary protec-

tion status have access to health care under the same eligibility conditions

as nationals of the Member State that has granted such statuses’. This is

almost identical to the original provision, although that required Member

States to ensure access to psychological care as well. Instead, reference to

psychological treatment has been shifted to a recital in the Preamble,

259

10576/03 ASILE 40 (n199).

260

Formerly art 27.

261

12199/02 ASILE 45 (n30).

262

6566/03 ADD 1 ASILE 10 (n200) 29 fn 2.

263

Reception Conditions Directive (n201).

512 Jane McAdam

which although not binding, indicates that both physical and psycholo-

gical treatment should be addressed within the notion of ‘health care’.

The second paragraph, based on a German amendment,

264

provides

an exception to the above rule: ‘Member States may limit health care

granted to beneﬁciaries of subsidiary protection to core beneﬁts which

will then be provided at the same levels and under the same eligibility

conditions as nationals.’

265

Belgium, France and the Netherlands pre-

ferred the text of Article 29 as set out in 10576/03 ASILE 40

266

which

provided for equal treatment without exception, but ultimately a com-

promise had to be made in order for Germany to accept the rest of the

Directive. For this reason, the Directive must be viewed as a political

compromise rather than an optimal set of standards for refugees and

beneﬁciaries of subsidiary protection.

5.7 Access to integration facilities (Article 33)

267

Article 33 now also differentiates between the rights of refugees and bene-

ﬁciaries of subsidiary protection, and the rights of the latter are consid-

erably reduced from the original proposal. In the original draft,

beneﬁciaries of subsidiary protection were entitled to access to the same

programmes as refugees, namely ‘speciﬁc support programmes tailored to

their needs in the ﬁelds of, inter alia, employment, education, healthcare

and social welfare’, but States had up to one year to provide access to

them. This one year limit was, for a time, deleted

268

from article 33(2)

following objections to it by Finland, the Netherlands, Sweden

269

and the

European Parliament,

270

but was ultimately reinserted.

271

It remained

until the restructure of paragraph 2,

272

which did away with the need

for a time limit by introducing a wholly discretionary regime.

Germany consistently pressured for paragraph 2 to become optional

by replacing ‘Member States shall’ with ‘Member States may’.

273

Until

the penultimate draft, the provision had remained along the lines of the

following, with the one year limit periodically removed:

Member States shall grant beneﬁciaries of subsidiary protection access to integ-

ration programmes which they consider approp riate no later than one year after

the subsidiary protection has been granted.

274

264

7469/04 ASILE 15 (n247).

265

Inserted by 7482/04 ASILE 16 (n251).

266

7728/04 ASILE 18 (n246) then art 27.

267

Formerly art 31.

268

6275/03 ADD 1 ASILE 9 (n241).

269

12199/02 ASILE 45 (n30).

270

European Parliament (n32) Amendment 82.

271

9945/03 ADD 1 ASILE 32 (n213).

272

7482/04 ASILE 16 (n251).

273

6566/03 ADD 1 ASILE 10 (n200); German proposal 7469/04 ASILE 15 (n247).

274

10576/03 ASILE 40 (n199).

The European Union Qualification Directive 513

However, this was replaced by what was to become the ﬁnal article 33(2):

Where it is considered appropriate by Member States, beneﬁciaries of subsidiary

protection status shall be granted access to integration programmes.

275

The Netherlands entered a scrutiny reservation on this reworded

paragraph, voicing its preference for the previous version in 10576/03

ASILE 40.

276

The result is a provision with considerable discretion. For refugees, the

discretion exists as to the types of support programmes a Member State

may choose to provide based on what the State ‘consider[s] to be appro-

priate’. This creates potential for variation between States rather than a

harmonized approach. With respect to beneﬁciaries of subsidiary protec-

tion, access to integration programmes need only be granted ‘[w]here it is

considered appropriate by Member States’. Accordingly, Germany’s

objection to the imperative ‘shall’ has been rendered void by the shift

of the discretion on to States as to whether such access should be granted

at all.

277

6. ‘Minimum standards’ — a harmonized approach?

Article 3 (formerly 4), on ‘more favourable standards’, has remained

virtually unchanged throughout the drafting process, providing:

Member States may introduce or retain more favourable standards for deter-

mining who qualiﬁes as a refugee or as a person eligible for subsidiary protec-

tion, and for determining the content of international protection, in so far as

those standards are compatible with this Directive.

It is strengthened by recital 8:

It is in the very nature of minimum standards that Member States should have

the power to introduce or maintain more favourable provisions for third country

nationals or stateless persons who request international protection from a

Member State, where such a request is understood to be on the grounds that

the person concerned is either a refugee within the meaning of Article 1(A) of the

Geneva Convention, or a person who otherwise needs international protection.

Storey criticizes the provision, arguing that it runs counter to the har-

monization process because it allows States to introduce differing levels of

protection that go beyond the standards set out in the Directive.

278

This

alone is a weak rationale for preventing the expansion and improvement

275

Inserted by 7482/04 ASILE 16 (n251).

276

7482/04 ASILE 16 (n251).

277

As early as 1975, it was recognized that ‘de facto refugees’ faced the same integration issues as

Convention refugees: PA Report on the Situation of De Facto Refugees (5 Aug. 1975) Doc 3642

‘Explanatory Memorandum’ [15], [17].

278

Storey and others (n21).

514 Jane McAdam

of protection. Requiring otherwise would stunt the development of the

law and conﬁne standards to minimum levels. The Convention regime

has functioned with a similar proviso to encourage the progressive real-

ization of better standards. The EU context is, of course, particular, and

it may be that in a regional context improvement ought to occur at a

regional level. As a general principle, though, more favourable standards

should be encouraged.

Of greater concern is the fact that, through the use of the conditional

‘may’, the provision permits States currently providing a higher level of

protection to beneﬁciaries of subsidiary protection to lower their stand-

ards.

279

The European Parliament suggested an amendment to prevent

States from using the provision to reduce their present standards,

280

how-

ever this was not taken up by the Member States. Even though the legal

basis of the Directive, article 63(1)(c) of the Treaty establishing the Euro-

pean Community,

281

requires only that the Council adopt ‘minimum

standards with respect to the qualiﬁcation of nationals of third countries

as refugees’, this does not mean that existing standards need be reduced.

A background document by the Legal Service provides an important

analysis of the rationale behind article 3 and its potential function.

282

Although the compatibility of national standards with those in the

Directive will require careful case-by-case analysis, the Legal Service

developed some broad, general principles. First, deviations in national

law from deﬁnitions set out in article 2 and related articles 6, 7, 9, 11,

12, 13, 15, 16, 17(1) and (2) would be incompatible with harmonization

unless the deﬁnition itself permits the inclusion or exclusion of a particu-

lar group of persons as part of a wider category.

283

Secondly, ‘shall’ or

‘may’ roughly indicate whether or not a provision allows Member States

to adopt or retain more favourable standards. Where ‘may’ deﬁnes the

‘normative intensity’ of a provision, it normally indicates that the provi-

sion is optional.

284

In articles 5(1) and (2), ‘may’ does not mean that those

provisions are optional but rather deﬁnes speciﬁc aspects of the notions

‘well-founded fear of being persecuted’ and ‘real risk of suffering serious

harm’. Since these form part of the deﬁnitions in article 2, no derogation

from them is possible. Most of the provisions in the Directive use the

term ‘shall’, yet from their context it is apparent that they leave it open

for Member States to grant more favourable treatment, since their

279

See J McAdam ‘The European Union Proposal on Subsidiary Protection: An Analysis and

Assessment’ UNHCR New Issues in Refugee Research Working Paper No 74 (Geneva Dec. 2002) 3;

Goodwin-Gill and Hurwitz (n68) [20].

280

European Parliament (n32) Amendment 18.

281

TEC (n3).

282

Contribution of the Legal Service to Asylum Working Party 14348/02 JUR 449 ASILE 67

(15 Nov. 2002).

283

ibid [7] (then arts 9, 9A, 11, 13, 14, 14A, 15, 16, 17(1) and (2)).

284

See arts 4(1), 8, 14(1), 14(4), 14(5), 19(1), 20(6), 20(7), 21(2) and 21(3).

The European Union Qualification Directive 515

objective is simply to set out minimum standards.

285

Finally, provisions

that incorporate the term ‘in particular’ indicate that elements of the

provision are not exhaustive, thus allowing Member States to take into

account additional aspects in their national laws.

286

In addition, Member States remain free to legislate in areas outside the

Directive’s scope, within the limits of article 10 of the Treaty establishing

the European Community, and in this way may create national laws

regulating other categories of persons permitted to remain for a pro-

tection or compassionate reason.

287

This is in any case envisaged by

recital 9, which states that:

Those third country nationals or stateless persons, who are allowed to remain in

the territories of the Member States for reasons not due to a need for interna-

tional protection but on a discretionary basis on compassionate or humanitarian

grounds, fall outside the scope of this Directive.

However, as Piotrowicz and van Eck caution, a Member State may be

reluctant to introduce a more liberal protection regime, since in doing so

it is likely to encourage more applications to its own territory as opposed

to other Member States.

288

7. Conclusion

The Directive has had more success in harmonizing the scope of ‘refu-

gees’ and ‘beneﬁciaries of subsidiary protection’ than in deﬁning the

content of those statuses. Due to political compromises in reaching agree-

ment on the former, the latter has become diluted and more highly dif-

ferentiated, not only in terms of refugee rights vis-a

-vis those of

beneﬁciaries of subsidiary protection, but also in terms of the latitude

for States to implement varying rights based on their discretion and

own interpretation of particular provisions.

The Directive should not be viewed as an example of complementary

protection for universal adoption. Much of its content has been determ-

ined by regional conditions and concerns, and its scope is far narrower

than protection principles under international human rights law, human-

itarian law and international criminal law provide.

285

Contribution of the Legal Service (n282) [8].

286

Ibid [9].

287

Ibid [4].

288

Piotrowicz and van Eck (n84) 114.

516 Jane McAdam