Option 1

ANNEX A

CHAPTER V

Options for the appeals chapter

Option 1

Article G

The right to an effective remedy

1) Member States shall ensure that applicants for asylum have the right to an effective remedy of a decision taken on their application for asylum.

An effective remedy entails :

a) an appeal before a court or tribunal or

b) a review by an administrative body followed by an appeal before a court or tribunal.

2) Member States shall ensure that the effective remedy referred to in paragraph 1 includes the possibility of an examination on both facts and points of law.

3) Member States may limit the examination of points of law to the question whether or not the decision was a reasonable one.

4) The discontinuation or suspension of an application as provided for in Article 16 is considered a decision for the purpose of this chapter.

5) Member States shall ensure that the extension of a time limit in accordance with the provisions of this Directive can be the subject of an examination in review or appeal.

Article I

The right to stay pending appeal and review

1) Member States shall allow applicants for asylum to remain at the border, at airport and port transit zones or on the territory of the Member State concerned awaiting the outcome of an appeal or review.

2) Member States may derogate from paragraph 1 on the basis of criteria laid down in advance in national law.

In the case of an appeal before a court or tribunal, a competent authority must have competence to rule that the applicant for asylum may remain on the territory or at the border of the Member State either upon request of the concerned applicant or ex officio.

In the case of a review by an administrative body, a court or tribunal must have competence to rule that the applicant for asylum may remain on the territory or at the border of the Member State either upon request of the concerned applicant or ex officio.

3) No expulsion may take place until either the competent authority as referred to in paragraph 2 has decided or the court or tribunal as referred to in paragraph 2 has ruled on the case except in the following cases:

(a) Where it has been decided that an application for asylum is inadmissible as referred to in Article.. ;

(b) Where a court or tribunal has already rejected a request from the concerned applicant for asylum to remain in the territory or at the border of the Member State and it has been decided that no new relevant facts have been submitted with respect to the particular circumstances of the applicant or his country of origin after this rejection;

(c) Where it has been decided that grounds of national security or public order preclude that the applicant for asylum may remain in the territory or at the border of the Member State concerned.

4) This Article does not apply when a decision is taken in accordance with the Council Regulation … / …

Article J

The possibility of further appeal

1) Member States may maintain or adopt an asylum appeal system that provides for more than one level of appeal.

2) Member States may limit the access to further appeal.

To that end they can make it subject to the condition that applicants for asylum have to seek leave for further appeal. In these cases, Member States shall lay down by law the criteria on the basis of which leave for further appeal may be granted.

3) Member States may deny any further appeal if the court or tribunal, referred to in Article

G(1), has confirmed or ruled that:

a) an application for asylum is inadmissible or manifestly unfounded ;

b) the decision taken by the determining authority that rejects the application as inadmissible or manifestly unfounded is to be re-examined on this point by the competent authority.

Member States may also deny further appeal if the court or tribunal, referred to in Article G (1), has confirmed that the applicant has, without reasonable cause and in bad faith, withheld information at an early stage of the procedure which would have resulted in a rejection as inadmissible or manifestly unfounded under chapter III.

4) Member States may decide that further appeal can be limited to the examination of points

of law only.

5) If Member States allow further appeal after the court or tribunal confirms or rules that an application for asylum can be rejected as inadmissible or manifestly unfounded, Member States may allow the further appeal to be examined in an abbreviated or accelerated procedure.

Article K

Time limits and scope of the examination in appeal

Member States shall lay down:

(a) reasonable time limits for giving notice of appeal ~~and for filing the grounds of appeal~~;

(b) all other necessary rules for lodging an appeal ~~including rules to extend the time limit for filing the grounds of appeal for a reasonable cause~~;

(c) that the reviewing body either has the power to confirm or nullify the decision of the determining authority or has both;

(d) that, if the reviewing body nullifies a decision, it remits the case to the determining authority for a new decision or takes itself a decision on the merits of the application.

Option 2

Article G

The right to an effective remedy

1) Member States shall ensure that applicants for asylum have the right to an effective remedy of a decision taken on their application for asylum.

An effective remedy entails :

c) an appeal before a court or tribunal or

d) a review by an administrative body followed by an appeal before a court or tribunal.

2) The discontinuation or suspension of an application as provided for in Article 16 is considered a decision for the purpose of this chapter.

3) Member States shall ensure that the extension of a time limit in accordance with the provisions of this Directive can be the subject of an examination in review or appeal.

Article H

Appeal against decisions taken in the regular procedure

1) This Article applies on appeal against decisions taken under the regular procedure referred to in Articles …

2) Member States shall ensure that an appeal against decisions taken under the regular procedure includes the possibility of an examination on both facts and points of law.

3) Member States may limit the examination by the court or the tribunal on points of law to the question of whether or not the decision was a reasonable one.

4) Member States shall allow applicants for asylum to remain at the border, the airport or port transit zones or on the territory of the Member State concerned awaiting the outcome of the ruling of the court or tribunal. The same applies if Member States provide for review by an administrative body preceding appeal.

5) Member States may derogate from paragraph 4 on the basis of criteria laid down in advance in national law.

6) No expulsion may take place until either the competent authority has decided or the court or tribunal as referred to in paragraph 5 has ruled on the case except in the following cases:

(a) Where a court or tribunal has already rejected a request from the concerned applicant for asylum to remain in the territory or at the border of the Member State and it has been decided that no new relevant facts have been submitted with respect to the particular circumstances of the applicant or his country of origin after this rejection;

(b) Where it has been decided that grounds of national security or public order preclude that the applicant for asylum may remain in the territory or at the border of the Member State concerned.

Article I

Appeal against decisions taken in the accelerated procedure

1) This Article applies on appeal against decisions taken under the accelerated procedure referred to in Articles …, including the rejection as inadmissible in accordance with the Council Regulation … / … (Dublin II).

2) Member States may decide that this Article also applies if applicants have, without reasonable cause and in bad faith, withheld information at an early stage of the procedure, including during review by an administrative body, which could have resulted in a decision taken under the accelerated procedure referred to in Articles ….

3) Member States shall lay down in advance in their national law in which cases the applicant for asylum is allowed to remain at the border, the airport or port transit zones or on the territory of the Member State concerned awaiting the outcome of the ruling of the court or tribunal.

4) In the case of an appeal before a court or tribunal, a competent authority must have competence to rule that the applicant for asylum may remain on the territory or at the border of the Member State either upon request of the concerned applicant or ex officio.