ANNEX
I
II
Amended
proposal for a
COUNCIL DIRECTIVE
On minimum standards on procedures in Member
States for granting and withdrawing refugee status
CHAPTER
I
General
provisions
Article 1
Purpose
The purpose of this Directive is to establish minimum
standards on procedures in Member States for granting and withdrawing refugee
status.
Article 2
Definitions
For the purposes of this Directive:
(a)
"Geneva
Convention" means the Convention of 28 July 1951 relating to the status of
refugees, as amended by the New York Protocol of 31 January 1967;
(b)
"Application
for asylum" means an application made by a third country national or
stateless person which can be understood as a request for international
protection from a Member State under the Geneva Convention. Any application for
international protection is presumed to be an application for asylum, unless the person concerned
explicitly requests another kind of protection that can be applied for
separately;
(c)
"Applicant"
or "applicant for asylum" means a third country national or stateless
person who has made an application for asylum in respect of which a final
decision has not yet been taken;
(d)
A final decision
is a decision whether the third country national or stateless person be granted
refugee status by virtue of Council Directive / on minimum standards for the
qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted and which is no longer subject to a remedy
within the framework of Chapter V irrespective of whether such remedy has
the effect of allowing applicants to remain in the Member States concerned
pending its outcome, subject to Annex III;
(e)
"Determining
authority" means any quasi-judicial or administrative body in a Member
State responsible for examining applications for asylum and competent to take
decisions at first instance in such cases, subject to Annex I;
(f)
"Refugee"
means a third country national or a stateless person who fulfils the
requirements of Article 1 of the Geneva Convention as set out in Council
Directive / on minimum standards for the qualification and status of third
country nationals or stateless persons as refugees or as persons who otherwise
need international protection and the content of the protection granted;
(g)
"Refugee
Status" means the recognition by a Member State of a third country
national or stateless person as a refugee;
(h)
"Unaccompanied
minor" means a person below the age of eighteen who arrives in the territory
of the Member States unaccompanied by an adult responsible for him/her whether
by law or by custom, and for as long as he/she is not effectively taken into
the care of such a person; it includes a minor who is left unaccompanied after
he/she has entered the territory of the Member States;
(i)
"Representative"
means a person acting on behalf of an organisation representing an
unaccompanied minor as legal guardian, a person acting on behalf of a national
organisation which is responsible for the care and well-being of minors, or any
other appropriate representation appointed to ensure his/her best interests;
(j)
(deleted)
(k)
"Withdrawal
of refugee status" means the decision by a competent authority to revoke,
end or refuse to renew the refugee status of a person in accordance with
Council Directive / on minimum standards for the qualification and status of
third country nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the protection
granted;
(l)
(deleted)
(m)
"Remain in
the Member State" means to remain in the territory, including at the
border or in transit zones of the Member State in which the application for
asylum has been made or is being examined.
Article 3
Scope
1. This
Directive shall apply to all applications for asylum made in the territory,
including at the border, or
in the transit zones of the Member
States and to the withdrawal of refugee status.
2. This
Directive shall not apply in cases of requests for diplomatic or territorial asylum
submitted to representations of Member States.
3. Where
Member States employ or introduce a procedure in which asylum applications are
examined both as applications on the basis of the Geneva Convention, and as
applications for other kinds of international protection as defined by
Article 15 of Council Directive .../... on minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or as
persons who otherwise need international protection and the content of the
protection granted, they shall apply
this Directive throughout their procedure.
4. Moreover,
Member States may decide to apply this Directive in procedures for deciding on
applications for any kind of international protection.
Article
3A
Responsible
authorities
1. Member
States shall designate for all procedures a determining authority which will be
responsible for an appropriate examination of the applications in accordance
with the provisions of this Directive, in particular Articles 7(2) and 8.
In
accordance with Article 4(4) of Council Regulation
(EC) No 343/2003, applications for asylum made in a Member State to the
authorities of another Member State carrying out immigration controls there
shall be dealt with by the Member State on whose territory the application is
made.
2. However,
Member States may provide that another authority is responsible in the
following cases for the purpose of:
(a) processing
cases in which it is considered to transfer the applicant to another State
according to the rules establishing criteria and mechanisms for determining
which state is responsible for considering an application for asylum, until
such time as the transfer takes place or the requested State has refused to
take charge or take over the applicant;
(b) taking a
decision on the application in the light of national security provisions,
provided a determining authority is consulted prior to this decision as to
whether the applicant qualifies as a refugee by virtue of Council Directive
.../... on minimum standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted;
(c) conducting
a preliminary examination pursuant to Article 33, provided this authority
has access to the applicant's file regarding the previous application;
(d) processing
cases in the framework of the procedures provided for in Article 35(1);
(e) refusing
permission to enter in the framework of the procedure provided for in
Article 35(2) to (5), subject to the conditions and as set out in these
paragraphs;
(f) establishing
that an applicant is seeking to enter or has entered in the Member State from a
safe third country pursuant to Article 35A, subject to the conditions and
as set out in this Article.
3. Member
States shall ensure that where authorities are designated in accordance with
paragraph 2, the personnel of such authorities have the appropriate
knowledge or receive the necessary training to fulfil their obligations when
implementing this Directive.
Article 4
More favourable
provisions
Member States may introduce or maintain more favourable
standards on procedures for granting and withdrawing refugee status, insofar as
those standards are compatible with this Directive.
CHAPTER II
Basic
principles and guarantees
Article 5
Access to the
procedure
1. Member States may require that
applications for asylum be made in person and/or at a designated place.
2. Member States shall ensure that each
adult having legal capacity has the right to make an application for asylum on
his/her own behalf.
3. Member States may provide that an application may be made
by an applicant on behalf of his/her dependants. In such cases Member States
shall ensure that dependant adults consent to the lodging of the application on
their behalf, failing which they shall have an opportunity to make an
application on their own behalf.
Consent
shall be requested at the time the application is lodged or, at the latest,
when the personal interview with the dependant adult is conducted.
4. Member States may determine, in national legislation
(a)
the cases in which
a minor can make an application on his/her own behalf;
(b)
the cases in which
the application of an unaccompanied minor has to be lodged by a representative
as provided for in Article 15(1)(a);
(c) the cases in which the
lodging of an application for asylum is deemed to constitute also the lodging
of an application for asylum for any unmarried minor.
5. Member States shall ensure that
authorities likely to be addressed by someone who wishes to make an asylum
application are able to advise that person how and where he/she may make such
an application and/or may require these authorities to forward the application
to the competent authority.
Article 6
Right to remain
in the Member State pending the examination of the application
1. Applicants shall be allowed to remain
in the Member State, for the sole purpose of the procedure, until such time as
the determining authority has made a decision in accordance with the procedures
at first instance set out in Chapter III. This right to remain shall not
constitute an entitlement to a residence permit.
2. Member States can make an exception
only where, in accordance with Articles 33 and 34, a subsequent
application will not be further examined or where they will surrender or
extradite, as appropriate, a person either to another Member State pursuant to
obligations in accordance with a European Arrest Warrant or otherwise, or to a
third country, or to international criminal courts or tribunals.
Article 7
Requirements
for the examination of applications
1. Without prejudice to
Article 23(4)(i), Member States shall ensure that applications for asylum
are neither rejected nor excluded from examination on the sole ground that they
have not been made as soon as possible.
2. Member States shall ensure that
decisions by the determining authority on applications for asylum are taken
after an appropriate examination. To that end, Member States shall ensure that
(a) applications are examined and decisions are
taken individually, objectively and impartially;
(b) precise and up-to-date information is
obtained from various sources, such as information from the United Nations High
Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin
of applicants for asylum and, where necessary, in countries through which they
have transited, and that such information is made available to the
personnel responsible for examining applications and taking decisions;
(c) the personnel examining applications and
taking the decisions have the knowledge with respect to relevant standards
applicable in the field of asylum and refugee law.
3. The authorities referred to in
Chapter V shall, through the determining authority or the applicant or
otherwise, have access to the general information referred to in
paragraph 2(b), necessary for the fulfilment of their task.
4. Member States may provide for rules
concerning the translation of documents relevant for the examination of
applications.
Article 8
Requirements
for a decision by the determining authority
1. Member
States shall ensure that decisions on applications for asylum are given in
writing.
2. Member
States shall also ensure that, where an application is rejected, the reasons in
fact and in law are stated in the decision and information on how to challenge
a negative decision is given in writing.
Member States need not state the reasons for not granting the
refugee status in the decision where the applicant is granted a status, which
offers the same rights and benefits under national and Community law as the
refugee status by virtue of Council Directive .../... on minimum standards for
the qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted. In these cases, Member States shall ensure that the reasons for not
granting the refugee status are stated in the applicant's file, and that the
applicant has, upon request, access to his/her file.
Moreover, Member States need not provide information on how to
challenge a negative decision in writing in conjunction with that decision where
the applicant has been informed at an earlier stage either in writing or by
electronic means accessible to the applicant of how to challenge such a
decision.
3. For
the purposes of Article 5(3), and whenever the application is based on the
same grounds, Member States may take one single decision, covering all
dependants.
Article 9
Guarantees for
applicants for asylum
1. With
respect to the procedures provided for in Chapter III of this Directive,
Member States shall ensure that all applicants for asylum enjoy the following
guarantees:
(a) they
must be informed in a language which they may reasonably be supposed to
understand of the procedure to be followed and of their rights and obligations
during the procedure and the possible consequences of not complying with their
obligations and not co-operating with the authorities. They must be informed
about the time-frame, as well as the means at their disposal to fulfil the
obligation to submit the elements as referred to in Article 4 of Council Directive .../...
on minimum standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted. The
information must be given in time to enable them to exercise the rights
guaranteed in this Directive and to comply with the obligations described in
Article 9A;
(b) they
must receive the services of an interpreter for submitting their case to the
competent authorities whenever necessary. Member States shall consider it
necessary to give these services at least when the determining authority calls
upon the applicant to be interviewed as referred to in Articles 10 and 11
and appropriate communication cannot be ensured without such services. In this
case and in other cases where the competent authorities call upon the
applicant, the services shall be paid for out of public funds;
(c) they
must not be denied the opportunity to communicate with the UNHCR or with any
other organisation working on behalf of the UNHCR in the territory of the
Member State pursuant to an agreement with that Member State;
(d) they
must be given notice in reasonable time of the decision by the determining
authority on their application for asylum. If a legal adviser or other
counsellor is legally representing the applicant, Member States may choose to
give notice of the decision to him/her instead of to the applicant for asylum;
(e) they
must be informed about the result of the decision by the determining authority
in a language that they may reasonably be supposed to understand when they are
not assisted or represented by a legal adviser or other counsellor and when
free legal assistance is not available. The information provided shall include
information on how to challenge a negative decision in accordance with the
provisions of Article 8(2).
2. With
respect to the procedures provided for in Chapter V, Member States shall
ensure that all applicants for asylum enjoy equivalent guarantees to the ones
listed in paragraph 1(b), (c) and (d).
Article
9A
Obligations
of the applicants for asylum
1. Member
States may impose upon applicants for asylum obligations to cooperate with the
competent authorities insofar as these obligations are necessary for the
processing of the application.
2. In particular,
Member States may provide that
(a) applicants for asylum
are required to report to the competent authorities or to appear there in
person, either without delay or at a specified time;
(b) applicants for asylum
have to hand over documents in their possession relevant to the examination of
the application, such as their passports; and
(c) applicants for asylum
are required to inform the competent authorities of their current place of
residence or address and inform them of change of this place of residence or
address as soon as possible. Member States may provide that the applicant shall
have to accept any communication at the most recent place of residence or
address which he/she indicated accordingly;
(d) the competent
authorities may search the applicant and the items he/she carries with him/her;
(e) the competent
authorities may take a photograph of the applicant; and
(f) the competent
authorities may record the applicant's oral statements, provided he/she has previously
been informed thereof.
Article 10
Persons invited
to a personal interview
1. Before
a decision is taken by the determining authority, the applicant for asylum
shall be given the opportunity of a personal interview on his/her application
for asylum with a person competent under national law to conduct such an
interview.
Member
States may also give the opportunity of a personal interview to each adult
among the dependants referred to in Article 5(3).
Member States may determine in
national legislation the cases in which a minor shall be given the opportunity
of a personal interview.
2. The
personal interview may be omitted where :
(a) the
determining authority is able to take a positive decision on the basis of
evidence available; or
(b) the
competent authority has already had a meeting with the applicant for the
purpose of assisting him/her with filling his/her application and submitting
the essential information regarding the application, in terms of
Article 4(2) of Council Directive .../... on minimum standards for the
qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted; or
(c) the
determining authority, on the basis of a complete examination of information
provided by the applicant, considers the application as unfounded in the cases
where the circumstances mentioned in Article 23(4)(a), (c), (g), (h) and
(j) apply.
3. The
personal interview may also be omitted, where it is not reasonably practicable,
in particular where the competent authority is of the opinion that the
applicant is unfit or unable to be interviewed owing to enduring circumstances
beyond his/her control. When in doubt, Member States may require a medical or
psychological certificate.
Where
the Member State does not provide the opportunity for a personal interview
pursuant to this paragraph, or where applicable, to the dependant, reasonable
efforts must be made to allow the applicant or the dependant to submit further
information.
4. The
absence of a personal interview in accordance with this Article shall not
prevent the determining authority from taking a decision on an application for
asylum.
5. The
absence of a personal interview pursuant to paragraph 2(b) and (c)
and paragraph 3 shall not adversely affect the decision of the determining
authority.
6. Irrespective
of Article 20 (1), Member States, when deciding on the application
for asylum, may take into account the fact that the applicant failed to appear
for the personal interview, unless he or she had good reasons for the failure
to appear.
Article 11
Requirements
for a personal interview
1. A personal interview shall normally
take place without the presence of family members unless the determining
authority considers it necessary for an appropriate examination to have other
family members present.
2. A personal interview must take place
under conditions which ensure appropriate confidentiality.
3. Member States shall take appropriate
steps to ensure that personal interviews are conducted in conditions which
allow applicants to present the grounds for their applications in a
comprehensive manner. To that end, Member States shall
(a) ensure that the person who conducts the interview
is sufficiently competent to take account of the personal or general
circumstances surrounding the application, including the applicants cultural
origin or vulnerability, insofar as it is possible to do so,and
(b) select an interpreter who is able to ensure
appropriate communication between the applicant and the person who conducts the
interview. The communication need not necessarily take place in the language
preferred by the applicant for asylum if there is another language which he/she
may reasonably be supposed to understand and in which he/she is able to
communicate in.
4. Member States may provide for rules
concerning the presence of third parties at the personal interview.
5. This
Article is also applicable to the meeting referred to in Article 10(2)(b).
Article 12
Status of the
report of a personal interview in the procedure
1. Member States shall ensure that a
written report is made of every personal interview, containing at least the
essential information regarding the application, as presented by the applicant,
in terms of Article 4(2) of Council Directive / on minimum standards for
the qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted.
2. Member States shall ensure that
applicants have timely access to the report of the personal interview. Where
access is only granted after the decision of the determining authority, Member
States shall ensure that access is possible as soon as necessary for allowing
an appeal to be prepared and lodged in due time.
3. Member states may request the
applicant's approval on the contents of the report of the personal interview.
Where an applicant refuses to approve the
contents of the report, the reasons for this refusal shall be entered into the
applicant's file.
The refusal of an applicant to approve the
contents of the report of the personal interview shall not prevent the
determining authority from taking a decision on his/her application.
4. This
Article is also applicable to the meeting referred to in Article 10(2)(b).
Article 13
Right to
legal assistance and representation
1. Member
States shall allow applicants for asylum at their own cost the opportunity to
consult in an effective manner a legal adviser or other counsellor, admitted or
permitted as such under national law, on matters relating to their asylum
applications.
2. In
the event of a negative decision by a determining authority, Member States shall
ensure that free legal assistance and/or representation be granted on request
subject to the provisions of paragraph 3.
3. Member
States may provide in their national legislation that free legal assistance
and/or representation be granted :
(a) only
for the procedures before a court or tribunal in accordance with Chapter V
and not to any onward appeals or reviews provided for under national law,
including a rehearing of an appeal following an onward appeal or review; and/or
(b) only
to those who lack sufficient resources; and/or
(c) only
to legal advisers or other counsellors specifically designated by national law
to assist and/or represent applicants for asylum; and/or
(d) only
if the appeal or review is likely to succeed.
Member
States shall ensure that legal assistance and/or representation granted under
subparagraph (d) is not arbitrarily restricted.
4. Rules
concerning the modalities for filing and processing such requests may be
provided by Member States.
5. Moreover,
Member States may
(a) impose
monetary and/or time limits on the provision of free legal assistance and /or
representation provided that such limits do not arbitrarily restrict access to
legal assistance and/or representation.
(b) provide
that, as regards fees and other costs, the treatment shall not be more
favourable than the treatment generally accorded to their nationals in matters
pertaining to legal assistance.
6. Member
States may demand to be reimbursed wholly or partially for any expenses granted
if and when the applicant's financial situation has improved considerably or if
the decision to grant such benefits was taken on the basis of false information
supplied by the applicant.
Article 14
Scope of legal
assistance and representation
1. Member States shall ensure that a
legal adviser or other counsellor admitted or permitted as such under national
law who assists or represents an applicant for asylum under the terms of
national law shall enjoy access to such information in the applicants file as
is liable to be examined by the authorities referred to in Chapter V,
insofar as the information is relevant to the examination of the application.
Member States may make an exception where
disclosure of information or sources would jeopardise national security, the
security of the organisations or persons providing the information or the
security of the person(s) to whom the information relates or where the
investigative interests relating to the examination of applications of asylum
by the competent authorities of the Member States or the international
relations of the Member States would be compromised. In these cases, access to
the information or sources in question must be available to the authorities
referred to in Chapter V, except where such access is precluded in national
security cases.
2. Member
States shall ensure that the legal adviser or other counsellor who assists
or represents an applicant for
asylum has access to closed areas, such as detention facilities and transit
zones, for the purpose of consulting that applicant. Member States may only
limit the possibility to visit applicants in closed areas where such limitation
is, by virtue of national legislation, objectively necessary for the security,
public order or administrative management of the area or to ensure an efficient
examination of the application, provided that access by the legal adviser or
other counsellor is not thereby severely limited or rendered impossible.
3. Member States may
provide rules covering the presence of legal advisers or other counsellors at
all interviews in the procedure, without prejudice to this Article or to
Article 15(1)(b).
4. Member States may provide that the
applicant is allowed to bring with him/her to the personal interview the legal
adviser or other counsellor, admitted as such under national law.
Member
States may require the presence of the applicant at the personal interview even
if he/she is represented under the terms of national law by such a legal
adviser or counsellor and may require the applicant to respond in person to the
questions asked.
The
absence of the legal adviser or other counsellor shall not prevent the
competent authority from conducting the personal interview with the applicant.
Article 15
Guarantees for
unaccompanied minors
1. With respect to all procedures
provided for in this Directive and without prejudice to the provisions of
Articles 10 and 12, Member States shall :
(a) as soon as possible take measures to ensure
that a representative represents and/or assists the unaccompanied minor with
respect to the examination of the application. This representative can also be
the representative referred to in Article 19 of Council Directive
2003/9/EC laying down minimum standards for the reception of asylum seekers;
(b) ensure that the representative is given the
opportunity to inform the unaccompanied minor about the meaning and possible
consequences of the personal interview and, where appropriate, how to prepare
himself/herself for the personal interview. Member States shall allow the representative
to be present at that interview and to ask questions or make comments, within
the framework set by the person who conducts the interview.
Member States may require the
presence of the unaccompanied minor at the personal
interview even if the representative
is present.
2. Member States may refrain from
appointing a representative where the unaccompanied minor:
(a) will in all likelihood reach the age of
maturity before a decision at first instance is taken; or
(b) can avail himself, free of charge, of a
legal adviser or other counsellor, admitted as such under national law to
fulfil the tasks assigned above to the representative; or
(c) is married or has been married.
3. Member States may, in accordance with
laws and regulations in force at the time of the adoption of this Directive,
also refrain from appointing a representative where the unaccompanied minor is
16 years old or older, unless he/she is unable to pursue his/her
application without a representative.
4. Member States
shall ensure that:
(a) if an unaccompanied minor has a personal
interview on his/her application for asylum as referred to in Articles 10,
11 and 12, that interview is conducted by a person who has the necessary
knowledge of the special needs of minors;
(b) an official who has the necessary knowledge
of the special needs of minors prepares the decision by the determining
authority on the application of an unaccompanied minor.
5. Member States may
use medical examinations to determine the age of unaccompanied minors within
the framework of the examination of an application for asylum.
In cases where medical examinations are
used, Member States shall ensure that:
(a) unaccompanied minors are informed prior to
the examination of their application for asylum, and in a language which they
may reasonably be supposed to understand, about the possibility of age
determination by a medical examination. This shall include information on the
method of examination and the possible consequences of the result of the
medical examination for the examination of the application for asylum, as well
as the consequences of refusal on the part of the unaccompanied minor to
undergo the medical examination.
(b) unaccompanied minors and/or their
representatives consent to carry out an examination to determine the age of the
minors concerned, and
(c) the decision to reject an application for
asylum from an unaccompanied minor who refused to undergo this medical
examination shall not be based solely on that refusal.
The fact that an unaccompanied minor has
refused to undergo such a medical examination shall not prevent the determining
authority from taking a decision on the application for asylum.
6. The best
interests of the child shall be a primary consideration for Member States when implementing
the provisions of this Article.
Article 16
(deleted)
Article 17
Detention
1. Member States shall not hold a person
in detention for the sole reason that he/she is an applicant for asylum.
2. Where an applicant for asylum is held
in detention, Member States shall ensure that there is the possibility of
speedy judicial review.
Article 18
(deleted)
Article 19
Procedure in
case of withdrawal of the application
1. Insofar as the
Member States foresee the possibility of explicit withdrawal of the application
under national law, when an applicant for asylum
explicitly withdraws his/her application for asylum, Member States shall ensure
that the determining authority takes a decision either to discontinue the
examination or to reject the application.
2. Member States may also decide that the
determining authority can decide to discontinue the examination without taking
a decision. In this case, Member States shall ensure that the determining
authority shall enter a notice in the applicant's file.
Article 20
Procedure in
case of implicit withdrawal or abandonment of the application
1. When there is reasonable cause to
consider that an applicant for asylum has implicitly withdrawn or abandoned
his/her application for asylum, Member States shall ensure that the determining
authority takes a decision either to discontinue the examination or to reject
the application on the basis that the applicant has not established an
entitlement to refugee status in accordance with Council Directive .../... on
minimum standards for the qualification and status of third country nationals
or stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted.
Member States may assume that the applicant has
implicitly withdrawn or abandoned his/her application for asylum in particular
when it is ascertained that:
(a) he/she has failed to respond to requests to
provide information essential to his/her application in terms of Article 4
of Council Directive .../... on minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or as
persons who otherwise need international protection and the content of the
protection granted or has not appeared for an personal interview as provided
for in Articles 10, 11 and 12, unless the applicant demonstrates within a
reasonable time that his failure was due to circumstances beyond his control;
(b) he/she has absconded or left without
authorisation the place where he/she lived or was held, without contacting the
competent authority within a reasonable time or he/she has not within a
reasonable time complied with reporting duties or other obligations to
communicate.
For the purpose of implementing these
provisions, Member States may lay down time limits or guidelines.
2. Member States shall ensure that the
applicant who reports again to the competent authority after a decision to
discontinue as referred to in paragraph 1 is taken, is entitled to request that
his/her case be re-opened, unless the request is examined in accordance with
Articles 33 and 34.
Member
States may provide for a time limit after which the applicant's case can no
longer be reopened.
Member States shall ensure that such a person is
not removed contrary to the principle of non-refoulement.
Member States may allow the determining
authority to take up the examination at the stage which the application was
discontinued.
Article 21
The role of UNHCR
1. Member States
shall allow the UNHCR :
(a) to have access to applicants for asylum,
including those in detention and in airport or port transit zones;
(b) to have access to information on individual
applications for asylum, on the course of the procedure and on the decisions
taken, provided that the applicant for asylum agrees thereto;
(c) to present its views, in the exercise of its
supervisory responsibilities under Article 35 of the Geneva Convention, to
any competent authorities regarding individual applications for asylum at any
stage of the procedure.
2. Paragraph 1 shall also apply to
an organisation which is working in the territory of the Member State on behalf
of the UNHCR pursuant to an agreement with that Member State.
Article 22
Collection of
information on individual cases
For the purpose of examining individual
cases, Member States shall not:
(a) directly
disclose the information regarding individual applications for asylum, or the
fact that an application has been made, to the alleged actor(s) of persecution
of the applicant for asylum.
(b) obtain
any information from the alleged actor(s) of persecution in a manner that would
result in such actor(s) being directly informed of the fact that an application
has been made by the applicant in question, and would jeopardise the physical
integrity of the applicant and his/her dependants, or the liberty and security
of his/her family members still living in the country of origin.
CHAPTER
III
Procedures
at first instance
Section I
Article 23
Examination
procedure
1. Member States shall
process applications for asylum in an examination procedure in accordance with
the basic principles and guarantees of Chapter II.
2.
Member States
shall ensure that such a procedure is concluded as soon as possible, without
prejudice to an adequate and complete examination.
Member States shall ensure
that, when no decision can be taken within six months,
(a) the applicant concerned shall either be
informed of the delay or
(b) receive, upon his/her
request, information on the time-frame within which the decision on his/her
application is to be expected. Such information shall not constitute an
obligation for the Member State towards the applicant concerned to take a
decision within that time frame.
3. Member States may
prioritise or accelerate any examination in accordance with the basic
principles and guarantees of Chapter II including where the application is
likely to be well-founded or where the applicant has special needs.
4. Moreover, Member
States may lay down that an examination procedure in accordance with the basic
principles and guarantees of Chapter II be prioritised or accelerated if:
(a) the applicant in
submitting his/her application and presenting the fact, has only raised issues
that are not relevant or of minimal relevance to the examination of whether
he/she qualifies as a refugee by virtue of Council Directive .../... on minimum
standards for the qualification and status of third country nationals or
stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted; or
(b) the applicant clearly
does not qualify as a refugee or for refugee status in a Member State under
Council Directive .../... on minimum standards for the qualification and status
of third country nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the protection
granted;or
- because the country which
is not a Member State is considered to be a safe third country for the
applicant, without prejudice to Article 29(1); or
(d) the applicant has
misled the authorities by presenting false information or documents or by
withholding relevant information or documents with respect to his/her identity
and/or nationality that could have had a negative impact on the decision; or
(e) the applicant has filed
another application for asylum stating other personal data; or
(f) the applicant has
not produced information to establish with a reasonable degree of certainty
his/her identity or nationality, or, it is likely that, in bad faith, he/she
has destroyed or disposed of an identity or travel document that would have
helped establish his/her identity or nationality; or
(g) the applicant has made
inconsistent, contradictory, unlikely or insufficient representations which
make his/her claim clearly unconvincing in relation to his/her having being the
object of persecution under Council Directive / on
minimum standards for the qualification and status of third country nationals
or stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted; or
(h) the applicant has
submitted a subsequent application raising no relevant new elements with
respect to his/her particular circumstances or to the situation in his/her
country of origin; or
(i) the applicant has
failed without reasonable cause to make his/her application earlier, having had
opportunity to do so; or
(j) the applicant is
making an application merely in order to delay or frustrate the enforcement of
an earlier or imminent decision which would result in his/her removal; or
(k) the applicant failed
without good reasons to comply with obligations referred to in
Articles 4(1) and (2) of Council Directive .../... on minimum standards
for the qualification and status of third country nationals or stateless
persons as refugees or as persons who otherwise need international protection
and the content of the protection granted or in
Articles 9A(2)(a) and (b) and 20(1) of this Directive; or
(l) the applicant
entered the territory of the Member State unlawfully or prolonged his/her stay
unlawfully and, without good reason, has either not
presented himself/herself to the authorities and/or filed an application for
asylum as soon as possible given the circumstances of his/her entry; or
(m) the applicant is a danger to
the national security or the public order of the Member State; or the applicant
has enforceably been expelled for serious reasons of public security and public
order under national law; or
(n) the applicant refuses
to comply with an obligation to have his/her fingerprints taken in accordance
with relevant Community and/or national legislation; or
(o) the application was
made by an unmarried minor to whom Article 5(4)(c) applies after the
application of the parents or parent responsible for the minor has been
rejected by a decision and no relevant new elements were raised with respect to
his/her particular circumstances or to the situation in his/her country of
origin.
Article 24
Specific procedures
1. Member States may
moreover provide for the following specific procedures derogating from the
basic principles and guarantees of Chapter II:
(a) a preliminary
examination for the purpose of processing cases considered within the framework
of the provisions set out in Section IV;
(b) procedures for the
purpose of processing cases considered within the framework set out in
Section V.
2. Member States may
also provide a derogation in respect of Section VI.
Section II
Article 25
Cases of
inadmissible applications
1. In
addition to cases in which an application is not examined in accordance with
the provisions of Council Regulation 343/2003 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[3],
Member States are not required to examine whether the applicant qualifies as a
refugee in accordance with Council Directive / on
minimum standards for the qualification and status of third country nationals
or stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted where an
application is considered inadmissible pursuant to the present Article.
2. Member
States may consider an application for asylum as inadmissible pursuant to this
Article if:
(a) another
Member State has granted refugee status;
(b) a
country which is not a Member State is considered as a first country of
asylum for the applicant, pursuant to Article 26;
(c) a
country which is not a Member State is considered as a safe third country for
the applicant, pursuant to Article 27;
(d) the
applicant is allowed to remain in the Member State concerned on some other
ground and as result of this he/she has been granted a status equivalent to the
rights and benefits of the refugee status
by virtue of Council Directive .../... on minimum standards for the
qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted;
(e) the
applicant is allowed to remain in the territory of the Member State concerned
on some other grounds which protect him/her against refoulement pending the
outcome of a procedure for the determination of a status pursuant to (d);
(f) the applicant has lodged an identical application after a
final decision;
(g) a
dependant of the applicant lodges an application, after he/she has in
accordance with Article 5 (3), consented to have his/her case be part
of an application made on his/her behalf and there are no facts relating to the
dependant's situation justifying a separate application.
Article 26
Application of
the concept of first country of asylum
A country can be considered to be a first country of
asylum for a particular applicant for asylum if
(a) he/she
has been recognised in that country as a refugee and he/she can still avail
himself/herself of that protection, or
(b) he/she
enjoys otherwise sufficient protection in that country, including benefiting
from the principle of non-refoulement,
provided that he/she will be re-admitted to that
country.
In applying the
concept of first country of asylum to the particular circumstances of an
applicant for asylum, Member States may take into account the content of
Article 27(1).
Article
27
The safe third country concept
1. Member States may
apply the safe third country concept only where the competent authorities are
satisfied that a person seeking asylum will be treated in accordance with the following
principles in the third country concerned:
(a) life and liberty are
not threatened on account of race, religion, nationality, membership of a
particular social group or political opinion; and
(b) the principle of
non-refoulement in accordance with the Geneva Convention is respected; and
(c) the prohibition on
removal in breach of the right to freedom from torture and cruel, inhuman or
degrading treatment as laid down in international law is respected; and
(d) the possibility exists to
request refugee status and, if found to be a refugee, to receive protection in
accordance with the Geneva Convention.
2. The application
of the safe third country concept shall be subject to rules laid down in
national legislation, including:
(a) rules requiring a
connection between the person seeking asylum and the third country concerned
based on which it would be reasonable for that person to go to that country;
(b) rules on the
methodology by which the competent authorities satisfy themselves that the safe
third country concept may be applied to a particular country or to a particular
applicant. Such methodology shall include case by case consideration of the
safety of the country for a particular applicant and/or national designation of
countries considered to be generally safe;
(c) rules, in
accordance with international law, allowing an individual examination of
whether the third country concerned is safe for a particular applicant which,
as a minimum, shall permit the applicant to challenge the application of the
safe third country concept on the grounds that he/she would be subjected to
torture, cruel, inhuman or degrading treatment or punishment.
3. When
implementing a decision solely based on this Article, Member States shall:
(b) provide
him/her with a document informing the authorities of the third country, in the
language of that country, that the application has not been examined in
substance.
4. Where
the third country does not permit the applicant for asylum in question to enter its territory, Member
States shall ensure that access to a procedure is given in accordance with the
basic principles and guarantees described in Chapter II.
5. Member
States shall inform the Commission periodically of the countries to which this
concept is applied in accordance with the provisions of this Article.
Article 28
(deleted)
Section III
Article 29
Cases of
unfounded applications
1. Without prejudice to Articles 19
and 20, Member States may only consider an application for asylum as unfounded
if the determining authority has established that the applicant does not
qualify for refugee status pursuant to Council Directive .../... on minimum
standards for the qualification and status of third country nationals or stateless
persons as refugees or as persons who otherwise need international protection
and the content of the protection granted.
2. In the cases mentioned in
Article 23(4)(b) and in cases of unfounded applications for asylum in
which any of the circumstances listed in Article 23(4)(a) and (c) to (o)
apply, Member States may also consider an application, if it is so defined in
the national legislation, as manifestly unfounded.
Article 30
Minimum common list of third
countries as safe countries of origin
1. The
third countries designated in the minimum common list of third countries as
contained in Annex ... shall be regarded by Member States as safe countries of
origin.
2. The
Council may, acting by a qualified majority on a proposal from the Commission
and after consultation of the European Parliament, amend the minimum common
list by adding or removing third countries, in accordance with Annex II.
The Commission shall examine any request made by the Council or by a Member
State that it submit a proposal to amend the minimum common list.When making its proposal, the Commission
shall make use of information from the Member States, its own information and,
where necessary, information from UNHCR, the Council of Europe and other
relevant international organisations.
3. Where
the Council requests the Commission to submit a proposal for removing a third
country from the minimum common list, the obligation of Member States pursuant
to Article 30B(2) shall be suspended with regard to this third country as
of the day following the Council decision requesting such a submission.
4. Where
a Member State requests the Commission to submit a proposal to the Council for
removing a third country from the minimum common list, that Member State shall
notify the Council in writing of the request made to the Commission. The
obligation of this Member State pursuant to Article 30B(2) shall be
suspended with regard to the third country as of the day following the
notification of the request to the Council.
5. The
European Parliament shall be informed of the suspensions under
paragraphs 3 and 4.
6. The
suspensions under paragraphs 3 and 4 shall end after three months,
unless the Commission makes a proposal, before the end of this period, to
withdraw the third country from the minimum common list. The suspensions shall
end in any case where the Council rejects, a proposal by the Commission to
withdraw the third country from the list.
7. Upon
request by the Council, the Commission shall report to the Council and the
European Parliament on whether the situation of a country on the minimum common
list is still in conformity with Annex II. When presenting its report to
the Council and the European Parliament, the Commission may make such
recommendations or proposals as it deems appropriate.
Article 30A
National
designation of third countries as safe countries of origin
1. Without prejudice to Article 30,
Member States may retain or introduce legislation that allows, in accordance
with Annex II, for the national designation of third countries other than
those appearing on the minimum common list, as safe countries of origin for the
purpose of examining applications for asylum. This may include designation of
part of a country as safe where the conditions in Annex II are fulfilled in
relation to that part.
2. By
derogation to paragraph 1, Member States may retain legislation in force
at the time of adoption of this Directive that allows for the national
designation of third countries, other than those appearing on the minimum
common list, as safe countries of origin for the purposes of examining
applications for asylum where they are satisfied that persons in the third
countries concerned are generally
neither subject to:
(a) persecution as defined
in Article 9 of Council Directive .../... on minimum standards for the
qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted; nor
(b) torture or inhuman or
degrading treatment or punishment.
3. Member
States may also retain legislation in force at the time of the adoption of this
Directive that allows for the national designation of part of a country as safe
or a country or part of a country as safe for a specified group of persons in
that country where the conditions in paragraph 2 are fulfilled in relation
to that part or group.
4. In assessing
whether a country is a safe country of origin in accordance with
paragraphs 2 and 3, Member States shall have regard to the legal
situation, the application of the law and the general political circumstances
in the third country concerned.
5. The assessment of
whether a country is a safe country of origin in accordance with this Article
shall be based on a range of sources of information, including in particular
information from other Member States, the UNHCR, the Council of Europe and
other relevant international organisations.
6. Member
States shall notify to the Commission the countries that are designated as safe
countries of origin in accordance with the provisions of this Article.
Article 30B
Application of the safe
country of origin concept
1. A third country
designated as a safe country of origin either in accordance with the provisions
of Article 30 or 30A can, after an individual examination of the application,
be considered as a safe country of origin for a particular applicant for asylum
only if:
(a) he/she
has the nationality of that country or,
(b) he/she
is a stateless person and was formerly habitually resident in that country;
and
he/she has not submitted any seriousgrounds
for considering the country not to be a safe country of origin in his/her
particular circumstances in terms of his/her qualification as a refugee in
accordance with Council Directive / on minimum
standards for the qualification and status of third country nationals or
stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted.
2. Member
States shall, in accordance with paragraph 1, consider the application for
asylum as unfounded where the third country is designated as safe pursuant to
Article 30.
3. Member
States shall lay down in national legislation further rules and modalities for
the application of the safe country of origin concept.
Article 31
(deleted)
Section IV
Article 32
(deleted)
Article 33
Cases of
subsequent applications
1. Where a person
who has applied for asylum in a Member State makes further representations or a
subsequent application in the same Member State, that Member State may examine
these further representations or the elements of the subsequent application in
the framework of the examination of the previous application or in the
framework of the examination of the decision under review or appeal insofar as
the competent authorities can take into account and consider all the elements
underlying the further representations or subsequent application within this
framework.
2. Moreover, Member States may apply a
specific procedure as referred to in paragraph 3, where a person makes a
subsequent application for asylum:
(a) after his/her previous application has been
withdrawn by virtue of Articles 19 or 20;
(b) after a decision has been taken on the
previous application. Member States may also decide to apply this procedure
only after a final decision has been taken.
3. A subsequent application for asylum
shall be subject first to a preliminary examination as to whether, after the
withdrawal of the previous application or after the decision referred to in
paragraph 2(b) on this application has been reached, new elements or
findings relating to the examination of whether he/she qualifies as a refugee
by virtue of Council Directive .../... on minimum standards for the qualification
and status of third country nationals or stateless persons as refugees or as
persons who otherwise need international protection and the content of the
protection granted have arisen or have been presented by the applicant.
4. If, following the preliminary
examination referred to in paragraph 3, new elements or findings arise or
are presented by the applicant which significantly add to the likelihood of the
applicant qualifying as a refugee by virtue of Council Directive .../... on
minimum standards for the qualification and status of third country nationals
or stateless persons as refugees or as persons who otherwise need international
protection and the content of the protection granted, the application shall be further examined in
conformity with Chapter II.
5. Member States may, in accordance with
national legislation, further examine a subsequent application where there are
other reasons according to which a procedure has to be reopened.
6. Member States may decide to further
examine the application only if the applicant concerned was, through no fault
of his/her own, incapable of asserting the situations set forth in
paragraphs 3, 4 and 5 in the previous procedure, in particular by
exercising his/her right to an effective remedy pursuant to Article 38.
7. This procedure may also be applicable
in the case of a dependant who lodges an application, after he/she has in
accordance with Article 5 (3), consented to have his/her case be part
of an application made on his/her behalf. In this case the preliminary
examination referred to in paragraph 3 will consist of examining whether
there are facts relating to the dependant's situation justifying a separate
application.
Article 33A
Member States
may retain or adopt the procedure provided for in Article 33 in the case of an
application for asylum filed at a later date by an applicant who, either
intentionally or owing to gross negligence, fails to go to a reception centre
or to appear before the competent authorities at a specified time.
Article
34
Procedural
rules
1.
Member States
shall ensure that applicants for asylum whose application is subject to a
preliminary examination pursuant to Article 33 enjoy the guarantees listed
in Article 9 (1).
2.
Member States may
lay down in national law rules on the preliminary examination pursuant to
Article 33. Those rules may inter alia:
(a)
oblige the
applicant concerned to indicate facts and substantiate evidence which justify a
new procedure;
(b)
require submission
of the new information by the applicant concerned within a time limit after
which it has been obtained by him or her;
(c)
permit the
preliminary examination to be conducted on the sole basis of written
submissions without a personal interview.
The conditions shall not render the access of
applicants for asylum to a new procedure impossible nor result in the effective
annulment or severe curtailment of such access.
3.
Member States
shall ensure that
(a) the applicant is informed in an appropriate
manner of the outcome of the preliminary examination and, in case the
application will not be further examined, of the reasons and of the
possibilities of seeking an appeal or review of the decision;
(b) if one of the situations referred to in
Article 33 (2) applies, the determining authority shall further
examine the subsequent application in conformity with the provisions of
Chapter II as soon as possible.
Section V
Article 35
Cases of border
procedures
1. Member States may provide for
procedures, in accordance with the basic principles and guarantees of
Chapter II, in order to decide, at the border or transit zones of the
Member State, on the applications made at such locations.
2. However, when procedures as set out in
paragraph 1 do not exist, Member States may maintain, subject to the
provisions of this Article and in accordance with the laws or regulations in
force at the time of the adoption of this Directive, procedures derogating from
the basic principles and guarantees described in Chapter II, in order to
decide, at the border or in transit zones, on the permission to enter their
territory of applicants for asylum who have arrived and made an application for
asylum at such locations.
3. The procedures referred to in
paragraph 2 shall ensure in particular that the persons concerned:
- shall be allowed to remain
at the border or transit zones of the Member State, without prejudice to
Article 6; and
- must
be immediately informed of their rights and obligations, as described in
Article 9 (1) (a); and
- have
access, if necessary, to the services of an interpreter, as described in
Article 9 (1) (b); and
- are
interviewed, before the competent authority takes a decision in such
procedures, in relation to their application for asylum by persons with
appropriate knowledge of the relevant standards applicable in the field of
asylum and refugee law, as described in Articles 10 to 12; and
- can
consult a legal adviser or counsellor admitted or permitted as such under
national law, as described in Article 13 (1); and
- have
a representative appointed in the case of unaccompanied minors, as described in
Article 15 (1), unless Article 15(2) or (3) applies.
Moreover,
in case permission to enter is refused by a competent authority, this competent
authority shall state the reasons in fact and in law why his/her application
for asylum is considered as unfounded or as inadmissible.
4. Member States shall ensure that a
decision in the framework of the procedures provided for in paragraph 2 is
taken within a reasonable time. When a decision has not been taken within four weeks,
the applicant for asylum shall be granted entry to the territory of the Member
State in order for his/her application to be processed in accordance with the
other provisions of this Directive.
5. In
the event of particular types of arrivals or arrivals involving a large number
of third country nationals or stateless persons lodging applications for asylum
at the border or in a transit zone, which makes it practically impossible to
apply there the provisions of paragraph 1 or the specific procedure set
out in paragraphs 2 and 3, those procedures may also be applied where and
for as long as these third country nationals or stateless persons are
accommodated normally at locations in proximity to the border or transit zone.
Section
VI
Article
35A
1. Member
States may provide that no, or no full, examination of the asylum application
and of the safety of the applicant in his/her particular circumstances as
described in Chapter II takes place in cases where a competent authority
has established, on the basis of the facts, that the applicant for asylum is
seeking to enter or has entered illegally into its territory from a safe third
country according to paragraph 2.
2. A
third country can only be considered as a safe third country for the purpose of
paragraph 1 where:
(a)
it has ratified and observes the
provisions of the Geneva Convention without any geographical limitations; and
(b) it has in place an asylum procedure prescribed by law; and
(c)
it has ratified the European
Convention for the Protection of Human Rights and Fundamental Freedoms and it observes its provisions,
including the standards relating to effective remedies; and
(d) it
has been so designated by the Council in accordance with paragraph 3.
3. The
Council shall, acting by qualified majority on the proposal of the Commission
and after consultation of the European Parliament, adopt or amend a common list
of third countries that shall be regarded as safe third countries for the
purposes of paragraph 1.
4. Member
States concerned shall lay down in national law the modalities for implementing
the provisions of paragraph 1 and the consequences of decisions pursuant to
those provisions in accordance with the principle of non-refoulement under the
Geneva Convention including providing for exceptions from the application of
this Article for humanitarian or political reasons or for reasons of public
international law.
5. When
implementing a decision solely based on this Article, Member States concerned
shall:
(b) provide
him/her with a document informing the authorities of the third country, in the
language of that country, that the application has not been examined in
substance.
6. Where
the safe third country does not readmit the
applicant for asylum in question, Member States shall ensure that access to a
procedure is given in accordance with the basic principles and guarantees
described in Chapter II.
7. Member
States which have designated third countries as safe countries in accordance
with national legislation in force at the date of the adoption of this
Directive and on the basis of the criteria in paragraph 2(a) to (c), may
apply paragraph 1 to these third countries until such time as the Council
has adopted the common list pursuant to paragraph 3.
CHAPTER IV
Procedures for the withdrawal of refugee status
Article 36
Withdrawal of
refugee status
Member States shall ensure that an examination may be
started to withdraw the refugee status of a particular person when new elements
or findings arise indicating that there are reasons to reconsider the validity
of his/her refugee status.
Article 37
Procedural
rules
1. Member
States shall ensure that, where the competent authority is considering to
withdraw the refugee status of a third country national or stateless person in
accordance with Article 14 of Council Directive
/ on minimum standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted, the person concerned shall enjoy the following guarantees:
(a) to
be informed in writing that the competent authority is reconsidering his or her
qualification for refugee status and the reasons for such a reconsideration;
and
(b) to
be given the opportunity to submit, in a personal interview in accordance with
Article 9 (1) (b) and Articles 10 to 12 or in a written
statement, reasons as to why his/her refugee status should not be withdrawn.
In addition, Member States shall ensure that within the framework of
such a procedure:
(c) the
competent authority is able to obtain precise and up to date information from
various sources, such as, where appropriate, information from the United
Nations High Commissioner for Refugees (UNHCR), as to the general situation
prevailing in the countries of origin of the persons concerned; and
(d) where
information is collected on the individual case for the purpose of
reconsidering the refugee status, it is not obtained from the actor(s) of
persecution in a manner that would result in such actor(s) being directly
informed of the fact that the person concerned is a refugee, whose status is
under reconsideration, nor jeopardise the physical integrity of the person and
his/her dependants, or the liberty and security of his/her family members still
living in the country of origin.
2. Member
States shall ensure that the decision of the competent authority to withdraw
the refugee status is given in writing. The reasons in fact and in law shall be
stated in the decision and information on how to challenge the decision shall
be given in writing.
3. Once
the competent authority has taken the decision to withdraw the refugee status,
Articles 13, paragraph 2, 14, paragraph 1 and 21 are equally
applicable.
4. By
derogation to paragraphs 1, 2 and 3, Member States may decide that the
refugee status lapses by law in case of cessation in accordance with
Article 11(1), sub-paragraphs (a), (b), (c) and (d) of Council Directive / on minimum standards for the
qualification and status of third country nationals or stateless persons as
refugees or as persons who otherwise need international protection and the
content of the protection granted or if the refugee has unequivocally
renounced his/her recognition as a refugee.
CHAPTER
V
Appeals
procedures
Article 38
The right to an effective
remedy
1. Member
States shall ensure that applicants for asylum have the right to an effective
remedy before a court or tribunal, against the following:
(a) a
decision taken on their application for asylum, including a decision:
(i) to
consider an application inadmissible pursuant to Article 25(2),
(ii) at the border or in the transit zones of a
Member State as described in Article 35(1);
(iii) not
to conduct an examination pursuant to Article 35A;
(b) a
refusal to re-open the examination of an application after its discontinuation
pursuant to Articles 19 and 20;
(c) a
decision not to further examine the subsequent application pursuant to
Articles 33 and 34;
(d) a
decision refusing entry within the framework of the procedures provided for
under Article 35 (2);
(e) a
decision for the withdrawal of the refugee status pursuant to Article 37.
2. Member
States shall provide for time limits and other necessary rules for the
applicant to exercise his/her right to an effective remedy pursuant to
paragraph 1.
3. Member
States shall, where appropriate, provide for rules in accordance with their
international obligations dealing with:
(a) the
question of whether the remedy pursuant to paragraph 1 shall have the
effect of allowing applicants to remain in the Member State concerned pending
its outcome; and
(b) the
possibility of legal remedy or protective measures where the remedy pursuant to
paragraph 1 does not have the effect of allowing applicants to remain in
the Member State concerned pending its outcome. Member States may also provide
for an ex officio remedy; and
(c) the
grounds of challenge to a decision under Article 25(2)(c) in accordance
with the methodology applied under Article 27(2)(b) and (c).
4. Member
States may lay down time limits for the court or tribunal pursuant to
paragraph 1 to examine the decision of the determining authority.
5. Where
an applicant has been granted a status, which offers the same rights and
benefits under national and Community law as the refugee status by virtue of
Council Directive .../... on minimum standards for the qualification and status
of third country nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the protection
granted, the applicant may be considered to have
an effective remedy where a court or tribunal decides that the remedy pursuant
to paragraph 1 is inadmissible or unlikely to succeed on the basis of
insufficient interest on the part of the applicant in maintaining the
proceedings.
6. Member
States may also lay down in national legislation the conditions under which it
can be assumed that an applicant has implicitly withdrawn or abandoned his/her
remedy pursuant to paragraph 1, together with the rules on the procedure
to be followed.
Article 39
(deleted)
Article
40
(deleted)
CHAPTER
VI
General
and final provisions
Article
40A
This Directive does not affect the
possibility for public authorities of challenging the administrative and/or
judicial decisions as provided for in national legislation.
Article 41
Confidentiality
Member States shall
ensure that authorities implementing this Directive are bound by the
confidentiality principle, as defined in national law, in relation to any
information they obtain in the course of their work.
Article 42
Report
No later than two years after the date specified in
Article 43, the Commission shall report to the European Parliament and the
Council on the application of this Directive in the Member States and shall
propose any amendments that are necessary. Member States shall send the
Commission all the information that is appropriate for drawing up this report.
After presenting the report, the Commission shall report to the European
Parliament and the Council on the application of this Directive in the Member
States at least every two years.
Article 43
Transposal
Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this Directive by
[24 months after the date of its adoption]. Concerning Article 13,
Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by [36 months after the
date of its adoption]. They shall forthwith inform the Commission thereof.
When Member States adopt those provisions, they shall
contain a reference to this Directive or be accompanied by such a reference on
the occasion of their official publication. Member States shall determine how
such reference is to be made.
Member States shall communicate to the Commission the text
of the provisions of national law, which they adopt in the field covered by
this Directive.
Article 43A
Transition
Member
States shall apply the laws, regulations and administrative provisions set out
in Article 43 to applications for asylum lodged after [date mentioned in
Article 43] and to procedures for the withdrawal of refugee status started
after [date mentioned in Article 43].
Article 44
Entry into
force
This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the European
Union.
Article 45
Addressees
This Directive is addressed to the Member States in conformity
with the Treaty establishing the European Community.
Done at Brussels,
For
the Council
The
President
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