Justice and Home Affairs Council, 28–29 November (Hansard, 17 December 2002)

§ The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)

I and the noble Baroness, Lady Scotland, represented the United Kingdom at the Justice and Home Affairs Council in Brussels on 28–29 November.

The A points were approved as in document PTS A 62 (14754/021 (a copy of which has been placed in the Library) with the exception of item 16. Ministers signed the Protocol to the Europol Convention agreed at item 4

The Presidency advised on progress in implementing the Seville European Council conclusions, presenting a report on action taken to combat illegal immigration and human trafficking and on management of the external border. Member states urged the Commission to produce its overdue report on financial resources for repatriation, border management and migration projects. The Commission explained that the financial resources had to come from the current financial perspective, which required re-evaluation of existing commitments within the Justice and Home Affairs (JHA) Committee and External Relations budgets but that national expenditure would need to remain a significant source of funding.

The Council adopted negotiating mandates for the Commission to pursue readmission agreements with Turkey, Albania, Algeria and China. The aim will be to agree arrangements with those countries for the return of their nationals who have entered the European Union illegally. Over lunch, Ministers also discussed the application of the re-admission 94WA provision in the Cotonou agreement. This would allow member states to approach African, Caribbean and Pacific countries bilaterally to ask them to take back their nationals.

The Council discussed the time limits to be applied for determining responsibility for an asylum claim in the regulation establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national (Dublin II). The Presidency concluded that member states would have one week in which to accept or reject a compromise package comprising a time limit of one year for responsibililty on the basis of illegal entry across the external frontier and five months for tolerated illegal presence in a member state. The Council agreed that the latter criterion should apply only to asylum seekers illegally present after the entry into force of the regulation. The Council also agreed to a minutes statement addressing the possible future inclusion in the regulation's scope of applicants for subsidiary protection.

The Council held a brief discussion of Articles 1–19 of the council directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection concerning the definition of a refugee and those entitled to subsidiary protection. However, two member states maintained reservations on the text.

With the exception of one member state, Ministers agreed to amend Article 16 of the directive laying down minimum standards for the reception of asylum seekers in member states in line with a United Kingdom proposal allowing for the refusal of support to asylum seekers making late applications. The one other remaining reserve on the text was lifted following a change to Article 11 concerning access to labour markets.

The Council also agreed a Statement declaring the European free trade areas and accession states (from the date of signature of the accession treaties) to be safe third countries for the purposes of asylum.

The Council adopted a Community programme on the return of third country nationals to source countries and a programme intended specifically to address returns to Afghanistan. The Council also took note of Council conclusions agreed by the General Affairs and External Relations Council on 18 November concerning the integration of immigration policy into the Union's relations with third countries. I welcomed the conclusions as a positive first step but called for the monitoring of returns projects to ensure that they were effective.

The Council agreed a package of provisions on child abduction for inclusion in the regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. These were based on retention of existing Hague Convention arrangements with 95WA additional rules where a non-return order has been issued under the 1980 Hague Convention on Child Abduction. In order to encourage other member states to accept the compromise, the noble Baroness, Lady Scotland, proposed the creation of a strict timetable to initiate custody proceedings in the home court following a non-return order.

Consequently, member states were also able to agree the Council decision authorising the member states, in the interest of the European Community, to sign the convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children.

The Council agreed to revise the negotiating mandate for the draft agreement between the European Union and the United States of America on judicial co-operation in criminal matters and on extradition.

The Council discussed a Presidency compromise package intended to address member states' outstanding reservations on the proposed offences in the framework decision combating racism and xenophobia. I, with four other member states, agreed that that proposal struck the right balance between punishing racist and xenophobic acts and protecting freedom of expression. However, the remaining member states were divided in either expressing fundamental problems with the scope of the instrument or wanting to go substantially further, in particular in reducing the threshold for criminal liability.

The Presidency sought agreement to its compromise proposal regarding the abolition of the dual criminality requirement in the framework decision on the application of the principle of mutual recognition to financial penalties. This would enable member states to maintain dual criminality for a transitional period of up to five years. Although this was acceptable to the majority of delegations, including the United Kingdom, five member states maintained reservations.

Two member states maintained reservations on the proposed penalties for trafficking in small quantities of drugs in the framework decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of drug trafficking.

Two member states also maintained reservations on the scope of the offences of active and passive corruption in Article 2 of the framework decision on combating corruption in the private sector.

Under any other business, the Presidency emphasised the importance of securing an agreement between Europol and the United States of America on the exchange of personal data. The Commission also asked the Council to consider its proposal for a Council decision on financing certain activities carried out by Europol to fight terrorism. The latter point would be considered at the December JHA Council.