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On 29 April 2004 the Council of the European Union adopted Directive 2004/83/EC, which sets out two distinct but complementary statuses of international protection in the EC legal order, namely refugee status and subsidiary protection. The deadline for EU Member States to comply with this instrument, commonly known as the Qualification Directive, was 10 October 2006.

Two years later, it is becoming obvious that to apply some of the compromise language found in the Directive in an harmonious, consistent and fair manner represents a major challenge for asylum administrations, adjudicators and courts. Some of the most ambiguous provisions concern the very basics of qualification, ie the definitions of ‘refugee’ and ‘person eligible for subsidiary protection’, as well as the standard or proof required from those who claim to be covered by those definitions. The European Commission has initiated a process of consultation with a view to recommending amendments to the Directive. Meanwhile, higher courts in EU countries have started to refer cases to the European Court of Justice for preliminary rulings interpreting key Directive provisions.

Within this context, the convenors of this roundtable (Jane McAdam of UNSW and J.F.Durieux of RSC) proposed to explore, with the help of about 20 academics and practitioners at national, regional or international level, ways and means to ‘make the Qualification Directive work’ – in particular its key provisions on qualification and proof.

The starting point of this inquiry was a set of three objectives, which, while not exhaustive, were deemed to be either explicit or implicit objectives of the process of EU legislation on asylum. These objectives were:

  • To ensure that all those who need 'international protection' are actually covered;
  • To ensure that the various definitions can be applied independently from, and are truly complementary to, each other; and the integrity and specificity of their international law sources is preserved; and
  • To ensure that the continuing development of additional protections (outside the current scope of the Directive) is not hampered.

The question to participants was whether it is possible to reconcile the letter of the Directive, and its interpretation by Member States, with these overarching objectives. In preparation for the one and a half day discussion, an impressive number of background papers and other relevant documents were shared among the experts, including some who were eventually unable to take part in the event as such.

The considerable expertise gathered in the room obviated the need for formal presentations or discussion panels. Guided by a list of questions and sub-questions related to the above mentioned objectives, the conversation flowed freely and informally. No conclusions were adopted, and no report will be issued. A summary of points of agreement, as well as issues for further discussion or re-formulations of the original questions, is being circulated to all participants for their comments.