CHAPTER II

DG JHA/DA/MV (2002)

Discussion document

Draft modified proposal for the Directive on asylum procedures

27 Feburary 2002

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 relating to the status of refugees done at Geneva on 28th July 1951, as complemented by the New York Protocol of 31 January 1967;

(b) “Application for asylum” means a request whereby a person asks for international protection from a Member State and which can be understood to be on the grounds that he is a refugee within the meaning of Article 1(A) of 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 person who has made an application for asylum in respect of which a final decision has not yet been taken. A final decision is a decision in respect of which all possible remedies under national law have been exhausted;

(d) “Determining authority” means any quasi-judicial or administrative body in a Member State responsible for examining the admissibility or substance of applications for asylum and competent to take decisions in first instance in these cases;

(e) “Reviewing body” means any administrative body, court or tribunal responsible for examining in second instance the decisions of this determining authority, be it in review or in appeal;

« Appellate Court « means a judicial body in a Member State independent of the government of the Member State in question and responsible for further appeal against the decision of any reviewing body ;

~~« Decision » means a decision by a determining authority or reviewing body in a Member State on the admissibility or substance of an application for asylum ;~~

(f) “Refugee” means a person who fulfils the requirements of Article 1(A) of the Geneva Convention and set out in Council Directive …/ … [qualification Directive] ;

(g) “Refugee Status” means the status granted by a Member State to a person who is a refugee and is admitted as such to the territory of this Member State;

(h) “Unaccompanied minor” means a person below the age of eighteen who arrives on the territory of the Member States unaccompanied by an adult responsible for him whether by law or by custom, and for as long as he is not effectively taken into the care of such a person;

(i) «Representative » means a person or organisation representing an unaccompanied minor by legal guardianship, a national organisation which is responsible for the care and well-begin of the unaccompanied minor or by other appropriate representation appointed to ensure the best interests of the unaccompanied minor ;

(j) “Detention” means confinement of an applicant for asylum by a Member State within a restricted area, ~~such as prisons, detention facilities or airport transit zones,~~ where his freedom of movement is substantially curtailed;

(k) “Withdrawal of refugee status” means the decision by a competent authority to withdraw the refugee status of a person on the basis of Article 1(C) of the Geneva Convention or Article 33(2) of the Geneva Convention;

(l) “Cancellation of refugee status” means the decision by a competent authority to cancel the refugee status of a person on the grounds that circumstances have come to light that indicate that this person should never have been recognised as a refugee in the first place.

Article 3

Scope

1) This Directive shall apply to all persons who make an application for asylum at the border, at port and airport transit zones or on the territory of Member States ~~without prejudice to the Protocol on asylum for nationals of Member States of the European Union~~.

The provisions of this Directive shall also apply where examination of an application for asylum takes place within the context of a procedure to decide on the right of the applicant legally to enter the territory of a Member State.

2) This Directive shall not apply to requests for diplomatic or territorial asylum submitted to diplomatic or consular representations of Member States.

3) Member States may decide to apply the provisions of this Directive to procedures for deciding on applications for kinds of protection other than that emanating from the Geneva Convention for persons who are found not to be refugees.

CHAPTER II

Basic principles and guarantees

Article 4

Access to the procedure

1) Member States shall ensure that applications for asylum are neither rejected nor excluded from examination on the sole basis that they have not been made as soon as possible.

2) Member States may require that applications for asylum are made in person.

3) Member States shall ensure that each person has the right to make a separate application for asylum on his own behalf.

Member States may, however, provide by law that an application can also be made by an applicant on behalf of other persons, in particular on behalf of his minor dependents, if they explicitly desire so.

In these cases, national law shall lay down :

a) The age below which a minor can not make an application on his own behalf and his application is to be made by another person on his behalf;

b) until which age the application of an unaccompanied minor has to be lodged by a representative as provided for in Article 10(1);

Member States in which an application can also be made on behalf of the dependants shall ensure that the adults among the dependants agree with the fact that the application is also made on their behalf, and if they do not agree, that the dependants shall have an opportunity to make an application on their own behalf.

Where an dependent files an application on his own behalf after he has agreed that an application was also made on his behalf, this application can be rejected or excluded on the basis of the examination of the application which has also been made on his behalf.

4) Without prejudice to Article K, Member States shall ensure that the procedures as provided for in this Directive shall start as soon as possible. To that end Member States shall ensure that:

a) all relevant authorities likely to be addressed by the applicant at the border or on the territory of the Member State have instructions for dealing with applications for asylum, including the instruction to forward the applications to the competent authority for examination and all relevant information ;

b) the personnel of these authorities have received the necessary training to recognise an application for asylum and know how to proceed further in accordance with these instructions.

Article 5

Right to stay pending the examination of the application

Applicants for asylum shall be allowed to remain at the border, at airport or port transit zones or on the territory of the Member State in which the application for asylum has been made or is being examined until such time as the determing authority has made a decision.

Article 6

Requirements for the examination of applications

1. Member States shall ensure that decisions on applications for asylum by the determining authority are taken after an appropriate examination. To that end, Member States shall ensure that

a) Applications are examined and decisions are taken individually, without prejudice and on the basis of the facts of the case ;

b) Applicants for asylum and the competent authorities engage in a genuine effort towards mutual comprehension on the facts of the case;

c) precise and up to date information from various sources, including information from UNHCR, concerning the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transitted is made available to the personnel entrusted with the task of examining applications and taking decisions;

d) the personnel examining applications and taking the decisions have the appropriate knowledge with respect to relevant standards applicable in the field of asylum and refugee law.

2. Members States shall ensure that reviewing bodies and other bodies competent to examine and /or decide upon applications for asylum in the asylum appeal system are not denied access to the general information referred to in § 1(c), necessary for the fulfilment of their task. Member States shall provide for the necessary conditions.

Article 6A

Requirements for a decision by the determining authority

Member States shall ensure that:

(a) decisions on applications for asylum are given in writing.

(b) If an application is rejected, the reasons in fact and in law are stated in the decision.

Article 7

Guarantees for applicants for asylum

1. With respect to the procedures provided for in chapters III and IV of this Directive, Member States shall ensure that all applicants for asylum enjoy the following guarantees:

(a) They must be informed of the procedure to be followed and of their rights and obligations during the procedure, in a language which they can reasonably be expected to understand. The information is given in time to enable them to exercise the guarantees provided for in this Directive and to comply with the obligations described in Articles 16(2) and F (1) (old);

(b) They must be given the services of an interpreter for submitting their case to the competent authorities whenever reasonable. Member States shall consider it reasonable if the determining authority calls upon the applicant to be interviewed before a decision is taken on the application. In this case and in other cases where the competent authorities call upon the interpreter, these services must be paid for out of public funds;

(c) They must not be denied the opportunity to communicate with the United Nations High Commissioner for Refugees (UNHCR) ~~at all stages of the procedure,~~ where the UNHCR is present on the territory of the Member State. The same applies if, instead of the UNHCR another organisation is working on behalf of the UNHCR on the territory of the Member State pursuant to an agreement with this Member State.

(d) They must be notified in reasonable time in an appropriate manner of the decision by a determining authority on their application for asylum. If a legal adviser or other counsellor is legally representing the applicant, Member States may choose to notify the decision to him instead of to the applicant for asylum.

(e) They must be informed of the decision by a determining authority in a language that they can reasonably be expected to understand in case they are not represented by a legal adviser or other counsellor. The information provided shall include information on how to challenge a negative decision.

2. Each adult among the dependants referred to in Article 4(2) shall be informed in private of the opportunity to provide information to the competent authorities on the application for asylum before a decision is taken by the determining authority.

3. With respect to the procedures provided for in Chapter V, Member States shall ensure that all applicants for asylum shall also enjoy the guarantees listed in paragraph 1 (b), (c) and (d).

Article 8

Persons invited to a personal interview

1) Without prejudice to paragraph 2, the applicant for asylum must be given the opportunity of a personal interview on his application for asylum with a person competent under national law before a decision is taken by the determining authority.

2) Member States may derogate from paragraph 1 in cases where, on the basis of an individual assessment :

a) the determining authority is able to take a positive decision on the basis of evidence available;

b) the competent authority is of the opinion that the applicant is unfit or unable to be interviewed due to lasting circumstances beyond his control ;

c) the competent authority is not able to provide for an interpreter in accordance with Article 8 A, paragraph 2 (b) within a reasonable time ;

d) the competent authority is not able to conduct the interview as the applicant has, without good reasons, not complied with invitations to appear for the interview.

3) Member States may lay down by law or regulation that minors below a certain age need not be interviewed.

4) Member States may require a medical or psychological certificate in order for the applicant to substantiate his claim that he is unfit or unable to attend the interview because of psychological or medical reasons amounting to lasting circumstances beyond his control.

5) In the cases referred to in paragraphs 2, (c )and (d), 3 and 4, the applicant must be offered the opportunity to make comments in lieu of a personal interview, where appropriate through the assistance of a legal adviser or other counsellor and/or, in the case of a minor, a legal guardian.

If the applicant can not have an interview because the competent authority is not able to provide for an interpreter in accordance with Article 8 A, paragraph 2(b) within a reasonable time, Member States shall provide, free of charge, for the assistance of a legal adviser or other counsellor and/or, in the case of an unaccompanied minor, a representative, before a decision is taken by the determining authority and provide them with an opportunity to make comments on behalf of the applicant in lieu of a personal interview.

6) The fact that no personal interview has taken place on a ground referred to in paragraph 2 and no comments were received as mentioned in paragraph 5, does not prevent the determining authority from taking a decision on an application for asylum in order to decide in time.

The absence of a personal interview on the grounds referred to in paragraph 2 or 5 shall not in itself adversely affect the decision of the determining authority.

Article 8 A

Requirements for a personal interview

1. A personal interview on the substance of the application for asylum shall normally take place without the presence of family members.

2. 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) when appointing the person who conducts the interview and the interpreter, take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or the applicant’s vulnerable state, insofar as it is possible in advance and the competent authority is aware of such circumstances;

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 he can reasonably be expected to understand.

Article 8 B

Status of a personal interview in the procedure

1. Member States shall ensure that applicants have timely access to the transcript of the personal interview on which the decision is or will be based.

2. Member States may request the applicant’s agreement on the contents of the transcript of the personal interview.

In such cases, Member States shall ensure that the applicant has the opportunity to request or propose corrections because of mistranslations or misconceptions on the transcript.

3. The refusal of an applicant to agree with the contents of the transcript of the personal interview does not prevent the determining authority from taking a decision on his application for asylum.

Article 9

Legal assistance and representation

1) Member States shall allow applicants for asylum the opportunity to consult in an effective manner a legal adviser or other counsellor on matters relating to their asylum applications at all stages of the procedure.

2) Member States shall ensure that a legal adviser or other counsellor who assists and/or represents an applicant for asylum under the terms of national law shall enjoy access to the information held in the applicant's file which can be examined by a reviewing body.

Member States may restrict the access to legal assistance under the terms of this Article to legal advisers or other counsellors specifically designated by national law to assist and/or represent applicants for asylum, if they possess the proper qualifications.

3) Member States shall ensure that all applicants for asylum have the opportunity to contact a legal advisor or other counsellor after an negative decision by a determining authority.

Member States shall ensure that legal assistance is given free of charge at this stage of the procedure if an authority, independent from the determining authority considers it reasonable and adequate on the basis of criteria laid down in advance in national law and in accordance with a procedure prescribed by national law.

Member States may restrict legal assistance given free of charge under the terms of this paragraph to legal advisers or other counsellors specifically designated by national law to assist and/or represent applicants for asylum.

4) Member States shall ensure that the legal adviser or other counsellor who assists and /or represents an applicant for asylum has access to closed areas for the purpose of visiting this applicant. Member States may limit the right to visit applicants in these areas by practical arrangements laid down in national law or regulations, provided these are objectively necessary for the security of the area or necessary to ensure an efficient examination. These rules shall not render access impossible nor result in the effective annulment or severe curtailments of the right of access for the legal adviser or other counsellor who assists and /or represents this applicant for asylum.

5) ~~In the regular procedure~~ Member States shall ensure that the legal adviser or other counsellor who assists and /or represents an applicant for asylum is informed of the time and place of the applicant’s personal interview as provided for in Article 8 and is allowed to attend it.

Member States shall provide for rules on the presence of legal advisers or other counsellors at all other interviews in the procedure, without prejudice to this Article and Article 10(1)(b).

Article 10

Guarantees for unaccompanied minors

1) With respect to all procedures provided for in this Directive and without prejudice to the provisions of Articles 8 and 9, Member States shall ensure that all unaccompanied minors enjoy the following guarantees:

a) To be granted, as soon as possible, a representative who shall represent and/or assist them with respect to the examination of the application;

b) The representative must be given the opportunity to help prepare them for the personal interview. Member States shall allow the representative to be present at this interview and to ask questions or make comments.

2) Member States shall ensure that:

a) If an unaccompanied minor will have a personal interview on his application for asylum as referred to in Article 8, this interview is conducted by an person who has the necessary knowledge with regard to the special needs of ~~unaccompanied~~ minors;

b) The decision on the application of an unaccompanied minor is taken by an official trained with regard to the special needs of ~~unaccompanied~~ minors.

3) Member States that use medical examinations to determine the age of unaccompanied minors shall ensure that:

a) ~~The competent organisations that carry out medical examinations to determine the age of unaccompanied minors shall use methods that are safe and respect human dignity.~~

Unaccompanied minors are informed prior to the examination of their application for asylum, and in a language which they are reasonably expected 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, including the consequences of refusal on the part of the unaccompanied minor to undergo the examination.

b) The decision to reject an application for asylum from an unaccompanied minor who refused to undergo this medical examination should not be solely based on this refusal.

Article F[1]

Establishing the facts in the procedure

1) Member States shall take appropriate measures to enable the applicant for asylum to fulfil his obligation of co-operation to assist the competent authorities in establishing the facts of his case.

An applicant shall be considered to have fulfiled this obligation if he has presented all the facts of his case relevant for the examination as completely as possible and supported these with all available evidence in time for the determining authority to take a decision.

2) An applicant for asylum shall be considered to have presented all the relevant facts of his case if he has provided statements on his age, background, identity, nationality, travel routes, identity and travel documents and the reasons for his fear for persecution.

3) After the applicant has made an effort to support his statements concerning the relevant facts by any available evidence and has given a satisfactory explanation for any lack of evidence, the determining authority must assess the well-foundedness of the fear for persecution and evaluate the evidence.

4) Member States shall ensure that the determining authority, despite a possible lack of evidence for some of the applicant’s statements, gives the applicant the benefit of the doubt if the following conditions are met :

a) The applicant has made a genuine effort to substantiate his claim;

b) All available evidence has been obtained and, where possible, checked;

c) The examiner is satisfied that the applicant’s statements are coherent and plausible and do not run counter to generally known facts relevant to his case.

Article 11

Detention before a decision is taken by the determining authority

1) Member States shall not hold an applicant for asylum in detention for the sole reason that his application for asylum needs to be examined before a decision is taken by the determining authority.

However, Member States may hold an applicant for asylum in detention during the examination of the application in accordance with a procedure prescribed by national law.

Member States may allow for detention if and for as long as it is necessary for the purpose of the following grounds:

(a) To ascertain or verify his identity or nationality if reasonable doubts exist in this regard and a decision can not be taken without holding him in detention;

(b) There are reasonable grounds for believing that he would otherwise fail to comply with his obligations described in Articles 16(2) and/or F (1) of this Directive and detention prevents him from absconding or effecting an unauthorized stay;

(c) There are reasonable grounds for believing that he failed without reasonable cause to lodge the application earlier, despite having had ample opportunity to do so, and detention prevents him from further delaying or frustrating the enforcement of an earlier or imminent decision that would result in his removal;

(d) The applicant has entered the territory of the Member State unlawfully and, without good reason, has not presented himself to the authorities as soon as possible given the circumstances of his entry, and detention prevents him from absconding or effecting an unauthorized stay.

Decisions shall be based solely on the personal conduct of the person concerned.

2) Member States may also hold an applicant for asylum in detention during the examination of his application if there are reasonable grounds for believing it can be decided quickly and that the restriction on his freedom of movement is necessary for such a quick decision to be made. Detention for this reason shall not exceed two weeks.

3) Member States shall provide for the possibility of an initial review and subsequent regular reviews of the order for detention of applicants for asylum detained pursuant to paragraph 1 and 2.

Member States shall ensure that

(a) the authority called upon to review the order of detention is independent from the authority that has made the order of detention;

(b) this authority is competent to review wether detention is in accordance with the provisions of this Article.

4) This Article is without prejudice to the prerogatives of Member States to detain applicants:

a) whose application for asylum have been rejected in order to facilitate their deportation;

b) who present a serious threat to public order or national security;

c) in order to enforce a penal decision.

Article 11 A

Detention after accepting to take charge (Regulation Dublin II)

1) Notwithstanding article 11, Member States may hold the applicant in detention to prevent him from absconding or effecting an unauthorized stay, from the moment another Member State has accepted to take charge of him or to take him back in accordance with Council 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] until the moment the applicant is transferred to the other Member State. Detention for this reason shall not exceed one month.

2) Member States shall ensure that the authority called upon to review the order is competent to examine the legality of the detention in accordance with the provisions of this Article.

Article 12

Administrative means for an efficient examination of applications

1) Member States shall regularly assess the needs for staff and equipment of all relevant competent authorities in light of their ability to discharge their duties as laid down in this Directive.

2) Member States shall adopt appropriate measures to meet these needs~~, in particular when the time limit set out in Article E(1) (old) for the examination of applications under the regular procedure is not adequately complied with~~.

Article 15

Data confidentiality

1) Member States shall take appropriate measures to ensure that information regarding individual applications for asylum is kept confidential.

2) Member States shall not disclose or share the information referred to in paragraph 1 with the authorities of the country of origin of the applicant for asylum.

3) Member States shall take appropriate measures to ensure that no information for the purpose of examining the case of an individual applicant shall be obtained from the authorities of his country of origin in a manner that would result in the fact of his having applied for asylum becoming known to those authorities.

4) This Article does not affect the UNHCR’s access to information in the exercise of its mandate under the Geneva Convention in accordance with Article 17 of this Directive.

Article 16

Procedure to follow in case of a withdrawal of the application

1) Member States may allow the competent authority either to discontinue or suspend the examination of an application if:

a) the applicant for asylum withdraws his application for asylum in writing or in person or

b) it can reasonably be assumed that the applicant has withdrawn his application.

2) Member States may assume that the applicant has withdrawn his application when:

a) it is ascertained that he has not complied with reporting duties ~~requests to provide information under the terms of Article F(1)~~ or invitations to appear for an personal interview as provided for in Article 8, or

b) it is ascertained that he has otherwise disappeared or has left without authorisation the place where he lived or was held and has not contacted the competent authority

a) and the applicant has not provided good reason for doing so.

Article 16 A

Reopening of the case after withdrawal

1) Member States shall ensure that the determining authority takes up the examination of an application which is discontinued or suspended, if the applicant places himself at its disposal after the discontinuation or suspension has been effected or if he has been taken back by the responsible Member State in accordance with the provisions of the Council 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].

2) Member States may allow the determining authority to take up the examination at the stage in which the application was discontinued or suspended. This examination may include an examination whether the applicant had good reasons for his non-compliance if he did not place himself voluntarily at the disposal of the authorities.

3) Member States shall ensure that the applicant will not be removed from the territory to his country of origin before it is established that the applicant has no well founded fear of being persecuted according to the Geneva Convention.

Article 16 C

Rejection of the application

In the situations referred to in Article 16, Member States may provide for a rejection of an application instead of a discontinuation or a suspension, if the determining authority is able in the particular case either to reject the application as inadmissible or to establish that the applicant has no well founded fear of being persecuted according to the Geneva Convention.

Article 16 D

Withdrawal of appeal

Member States shall lay down on what grounds and under which conditions it can be assumed that an applicant has withdrawn his review or appeal as referred to in Article G.

Article 17

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. The same applies if, instead of the UNHCR, another organisation is working on the territory of the Member State on behalf of the UNHCR pursuant to an agreement with the Member State.

3. Article 17(1) (b) is not applicable insofar as the legislation of a Member State requires the competent authorities to inform UNHCR of all applications for asylum and to involve UNHCR in their examination at one stage or another of the procedure.

CHAPTER III

Accelerated procedures

Section I

Article A

The purpose of accelerated procedures

Member States may adopt or retain an accelerated procedure for the purpose of

a) processing applications for asylum considered as inadmissible in accordance with the provisions of Section II;

b) processing applications for asylum considered as manifestly unfounded in accordance with the provisions of Section III;

c) processing new applications for asylum within the framework of the provisions set out in Section IV;

d) taking a decision on the entry of applicants for asylum into the territory of a Member State without prejudice to the provisions set out in Section V.

Article B[2]

Procedural framework for an accelerated procedure

1. Member States shall ensure that the determining authority takes a decision in the accelerated procedure within three months after the application of the person concerned has been made.

2. The time limit referred to in paragraph 1 can only be extended for three months when it necessary for an appropriate examination of the application.

a) where a decision can not be taken within the time limit because the determining authority is either seeking clarification or assessing further information from the applicant and/or the legal adviser or other counsellor assisting and/or representing him on an issue that will affect the decision on the application and this could reasonably not have been done in an earlier stage of the procedure;

3. Non-compliance with the time limits in this Article shall result in the application for asylum being processed under the regular procedure as referred to in Chapter IV.

An extension of the time limit in a particular case is not valid unless notice is served on the applicant and/or legal adviser or other counsellor who assists and/or represents him.

4. This Article shall not apply from the moment that a Member States calls upon another Member State to take charge of an applicant in accordance with Article .. of Council 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].

Section II

Article C[3]

Inadmissible applications

Member States may reject a particular application for asylum as inadmissible if:

(a) another Member State, [Norway or Iceland], is responsible for examining the application, according to the criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country or stateless person in one of the Member States;

(b) pursuant to Article … , a country which is not a Member State is considered as a first country of asylum for the applicant;

(c) pursuant to Articles …. and …., a country which is not a Member State is considered as a safe third country for the applicant;

(d) a country other then the country of origin of the applicant has made an extradition request and this country is either another Member State or a country which can be considered a safe third country in accordance with the principles set out in Annex I, provided extradition to this country is legal;

(e) an indictment by an International Criminal Court has been made.

Article D[4]

Conditions for the application of the first country of asylum concept

A country can be considered as a first country of asylum for an asylum applicant if he has been admitted to that country as a refugee or for other reasons justifying the granting of protection, and can still avail himself of this protection.

Article E[5]

Designation of countries as safe third countries

1) Member States may consider that a third country is a safe third country for the purpose of examining applications for asylum only in accordance with the principles set out in Annex I to this Directive.

2) Member States may retain or introduce legislation that allows for the designation by law or regulation of safe third countries. These laws shall be without prejudice to Article F.

3) Member States which, at the date of entry into force of this Directive, have in force laws or regulations designating countries as safe third countries and wish to retain these laws or regulations, shall notify them to the Commission within six months of the adoption of this Directive and notify as soon as possible any subsequent relevant amendments. Member States shall notify to the Commission as soon as possible any introduction of laws or regulations designating countries as safe third countries after the adoption of this Directive, as well as any subsequent relevant amendments.

Article F[6]

Conditions for the application of the safe third country concept

1. A country that is a safe third country in accordance with the principles set out in Annex I can only be considered as a safe third country for a particular applicant for asylum if, notwithstanding any list:

a) the applicant has a connection or close links with the country or has had the opportunity during a previous stay in that country to avail himself of the protection of its authorities;

b) there are grounds for considering that this particular applicant will be re-admitted to its territory and

c) there are no grounds for considering that the country is not a safe third country in his particular circumstances.

2. When implementing a decision based on this Article, Member States may provide the applicant with a document in the language of the third country informing the authorities of that country that the application has not been examined in substance[7].

Section III

Article G[8]

Manifestly unfounded applications

1) Member States shall ensure that an application for asylum is only rejected as manifestly unfounded after the determining authority has established that the applicant has no well-founded fear of being persecuted according to the Geneva Convention.

Member States may only reject an application for asylum as manifestly unfounded by virtue of this paragraph if one or more of the following indications apply:

(a) the applicant has without good reason, misled the authorities with respect to his identity and/or nationality, by presenting false information or withholding relevant information that could have had a negative impact on the decision;

(b) the applicant has not produced information to establish with a reasonable degree of certainty his identity or nationality, and there are serious reasons for considering that he has in bad faith destroyed or disposed of an identity or travel document that would have helped establish his identity or nationality;

(c) the applicant in submitting and explaining his application, has only raised issues that are obviously not relevant to the Geneva Convention;

(d) the applicant has made deliberately false or misleading representations of a material or substantial nature in relation to the elements produced in support of his application for asylum;

(e) the applicant is from a safe country of origin within the meaning of Articles… of this Directive ;

(f) the applicant has submitted a new application raising no relevant new facts with respect to his particular circumstances or to the situation in his country of origin;

(g) the applicant failed without reasonable cause to make his application earlier, had ample opportunity to do so, and is making an application to delay or frustrate the enforcement of an earlier or imminent decision which would result in his removal;

(h) the applicant failed to comply with obligations as provided for in Articles 16 and F(old) of this Directive;

(i) the applicant entered unlawfully or prolonged his stay unlawfully on the territory of the Member State and, without good reason, has not presented himself to the authorities as soon as possible given the circumstances of his entry;

(j) the applicant prima facie falls within the scope of Article 1F of the Geneva Convention;

(k) the applicant is a danger to the security of the Member State or constitutes a danger to te community of that Member State for he is convicted by a final judgement of a particularly serious crime.

Article H[9]

Designation of countries as safe countries of origin

1) Member States may consider a country as a safe country of origin for the purpose of examining applications for asylum only in accordance with the principles set out in Annex II to this Directive.

2) Member States may retain or introduce legislation that allows for the designation by law or regulation of safe countries of origin. These laws shall be without prejudice to Article I.

3) Member States which, at the date of entry into force of this Directive, have in force laws or regulations designating countries as safe countries of origin and wish to retain these laws or regulations, shall notify them to the Commission within six months of the adoption of this Directive and notify as soon as possible any subsequent relevant amendments. Member States shall notify to the Commission as soon as possible any introduction of laws or regulation designating countries as safe countries of origin after the adoption of this Directive, as well as any subsequent relevant amendements.

Article I[10]

Conditions for the application of the safe country of origin concept

A country that is a safe country of origin in accordance with the principles set out in Annex II can only be considered as a safe country of origin for a particular applicant for asylum if he has the nationality of that country or, if he is a stateless person, it is his country of former habitual residence, and if there are no grounds for considering the country not to be a safe country of origin in his particular circumstances.

Section IV

Article J

Procedure for new applications

[German proposal needs to be examined in this context]

1) Member States may maintain or adopt a procedure for new applications which are made by an applicant after the withdrawal or rejection of his application for asylum, subject to the provisions of this Article and without prejudice to the possibility to otherwise reject such new applications in an accelerated procedure as foreseen in Article A.

2) In the cases referred to in paragraph 1 Member States may require the competent authority to limit its examination to the question whether or not a new decision has to be taken on this new application or it can be rejected on the basis of the earlier examination.

3) ~~Member States shall ensure that a new decision will be taken in the following cases :~~

~~(a)~~ ~~There has been a change in individual or general circumstances to the benefit of the applicant ;~~

(b) ~~New evidence has come to light which would have resulted in a positive decision had it been known at the time the decision was taken~~ ;

~~(c)~~ ~~The decision taken by the determining authority was based on incorrect or false information.~~

~~Member States may provide for additional reasons under national law.~~

4) Member States may lay down in national law conditions for the examination referred to in paragraph 2 to take place. These conditions shall be proportionate to the aim of ensuring an efficient examination and may not render the access for applicants for asylum to this procedure impossible nor result in the effective annulment or severe curtailment of such access.

These conditions may include the possibility of setting a reasonable time limit for applicants for asylum to submit to the authorities the new information after it has been acquired and of conducting the procedure on the mere basis of written submissons without a personal interview.

5) If the competent authority decides that no new decision has to be taken, the legal consequences of the withdrawal or rejection referred to in paragraph 1 remain unchanged, nothwithstanding the right to an effective remedy before a court or tribunal of the decision by the competent authority not to take a new decision.

~~This provision is without prejudice to extra-ordinary remedies that may apply under national law.~~

Section V

Article K

Border procedures

1) Subject to the provisions of this Article, Member States may maintain or adopt a specific procedure in order to decide at the border on the entry to their territory of applicants for asylum who have arrived and made an application for asylum at this border. This procedure may also be applicable to applicants for asylum arriving in airport and port transit zones.

2) Member States shall lay down rules for the procedure referred to in paragraph 1 as regards the requirements for the examination of applications and the decision, the access to legal assistance and representation, the procedure, duration and conditions of detention as well as any time limits that apply, without prejudice to Article 4, 5, 7, 9 (1), 9(5), 11(5) and 17 of this Directive.

3) Member States shall ensure that a decision to refuse entry to the territory of a Member State for a reason relating to the application for asylum is taken within two weeks, subject to an extension of the time limit for no more than two weeks agreed upon by a competent judicial body in a procedure prescribed by law.

Non-compliance with the time limits provided for in this paragraph shall result in the applicant for asylum being granted entry to the territory of the Member State in order for his application to be processed in accordance with the other provisions of this Directive.

4) Member States shall ensure that applicants for asylum who are refused entry in accordance with this procedure, enjoy the guarantees referred to in Articles G and I [appeal + right to request right to stay pending non suspensive appeal].

5) The refusal of entry into the territory can not replace the decision on the application for asylum, unless it is based upon a rejection of the application for asylum after an examination on the basis of the facts of the case by authorities competent in the field of asylum and refugee law.

CHAPTER IV

Regular procedures

Article L[11]

Procedural framework for the regular procedure

1) ~~Member States shall adopt either a reasonable time-limit, not exceeding one year, for taking decisions on applications for asylum by the determining authority.~~

2) ~~Where Member States have adopted a time limit as provided for in paragraph 1, they may provide for the possibility to extend the time limit for one of the following reasons:~~

~~(a)~~ the determining authority is either receiving information or seeking clarification from the applicant and/or the legal adviser or other counsellor assisting and/or representing him on an issue that will affect the decision on the application and this could reasonably not have been done in an earlier stage of the procedure;

~~(b)~~ the determining authority is awaiting clarification from a court or tribunal as referred to in Article … or an instance for appeal as referred to in Article … on an issue that will affect the decision on the application, or

~~(c)~~ ~~the determining authority is awaiting information on the situation in the country of origin that will affect the decision on the application;~~

~~(d)~~ ~~the applicant has a good reason to ask for it.~~

~~An extension can only be valid after it has been communicated to the applicant and/or the legal adviser or other counsellor who assists and/or represents him.~~

3) ~~Where Member States have adopted a time limit as provided for in paragraph 1, they may extend the time limit for~~ ~~no more than three months in case the determining authority is unable to comply with it for reasons beyond its control~~ ~~not~~ ~~provided for in paragraph 2~~.

~~In these cases Member States shall ensure that applicants shall be informed in an appropriate manner as soon as possible.~~

~~The Commission shall be informed of this situation. The Commission shall inform the other Member States.~~

Article M[12]

Withdrawal or cancellation of refugee status

1) Member States shall ensure that an examination may be started to withdraw or cancel the refugee status of a particular person when information comes to light indicating that there are reasons to reconsider the validity of his refugee status.

2) Where in a Member State a determining authority reconsiders a refugee’s qualification, the cancellation or withdrawal of a refugee status shall be examined under the regular procedure in accordance with the provisions of this Directive.

Where in a Member State a reviewing body reconsiders a refugee’s qualification, the cancellation or withdrawal of a refugee status shall be examined under the same conditions as the review of decisions taken under the regular procedure.

3) Member States may derogate from Articles 7 and 8 when it is physically impossible for the competent authority to comply with the provisions.

CHAPTER V

Appeals procedures

See Annex A for two options for this chapter

ANNEX I

Principles with respect to the Designation of safe third countries

I. Requirements for designation

A country is considered as a safe third country if it fulfils, with respect to those foreign nationals or stateless persons to which the designation would apply, the following two requirements:

A. it consistently observes the standards laid down in international law for the protection of refugees;

B. it consistently observes basic standards laid down in international human rights law from which there may be no derogation in time of war or other public emergency threatening the life of the nation.

A. The standards laid down in international law for the protection of refugees

1) A safe third country is any country that has ratified the Geneva Convention, observes the provisions of that Convention with respect to the rights of persons who are recognised and admitted as refugees and has in place with respect to persons who wish to be recognised and admitted as refugees an asylum procedure in accordance with the following principles:

· The asylum procedure is prescribed by law.

· Decisions on applications for asylum are taken objectively and impartially.

· Applicants for asylum are allowed to remain at the border or on the territory of the country as long as the decision on their application for asylum has not been decided on.

· Applicants for asylum have the right to a personal interview, where necessary with the assistance of an interpreter.

· Applicants for asylum are not denied the opportunity to communicate with the UNHCR or other organisations that are working on behalf of the UNHCR pursuant to an agreement with this country.

· There is provision for appeal to a higher administrative authority or to a court of law against the decision on each application for asylum or there is an effective possibility to have the decision reviewed.

· The UNHCR or other organisations working on behalf of the UNHCR pursuant to an agreement with this country have, in general, access to asylum applicants and to the authorities to request information regarding individual applications, the course of the procedure and the decisions taken and, in the exercise of their supervisory responsibilities under Article 35 of the Geneva Convention, can make representations to these authorities regarding individual applications for asylum.

2) Notwithstanding the above, a country that has not ratified the Geneva Convention may still be considered a safe third country if:

· it consistently observes the principle of non-refoulement as laid down in the OAU Convention governing the specific aspects of refugee problems in Africa of 10 September 1969 and has in place with respect to the persons who request asylum for this purpose a procedure that is in accordance with the above‑mentioned principles; or

· it has followed the conclusions of the 19–22 November 1984 Cartagena Declaration of Refugees to ensure that national laws and regulations reflect the principles and criteria of the Geneva Convention and that a minimum standard of treatment for refugees is established; or

· it nonetheless consistently observes in practice the standards laid down in the Geneva Convention with respect to the rights of persons in need of international protection within the meaning of this Convention and has in place with respect to the persons who wish to be so protected a procedure which is in accordance with the above‑mentioned principles; or

· as evinced by the UNHCR it complies in another manner with the need for international protection of these persons, either through cooperation with the Office of UNHCR or other organisations which may be working on behalf of the UNHCR or by other means deemed to be adequate for that purpose by the UNHCR.

For the purpose of part A a safe third country is also a country that has ratified the Geneva Convention and, while not having (yet) put in place a procedure in accordance with the principles under 1), nonetheless consistently observes in practice the standards laid down in the Geneva Convention with respect to the rights of persons in need of international protection within the meaning of this Convention as evinced by the UNHCR.

B. The basic standards laid down in international human rights law

1) Any country that has ratified either the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter referred to as ‘European Convention’) or both the 1966 International Covenant on Civil and Political Rights (hereafter referred to as ‘International Covenant’) and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter referred to as ‘Convention against Torture’), and consistently observes the standards laid down therein with respect to the right to life, freedom from torture and cruel, inhuman or degrading treatment, freedom from slavery and servitude, the prohibition of retro-active criminal laws, the right to recognition as a person before the law, freedom from being imprisoned merely on the ground of inability to fulfil a contractual obligation and the right to freedom of thought, conscience and religion.

2) Observance of the standards for the purpose of designating a country as a safe third country also includes provision by that country of effective remedies that guarantee these foreign nationals or stateless persons from being removed in breach of Article 3 of the European Convention or Article 7 of the International Covenant and Article 3 of the Convention against Torture.

II. Procedure for designation

Every general assessment of the observance of these standards for the purpose of designating a country as a safe third country in general or with respect to certain foreign nationals or stateless persons in particular must be based on a range of sources of information, which may include reports from diplomatic missions, international and non‑governmental organisations and press reports. Member States may in particular take into consideration information from the UNHCR.

The report of the general assessment shall be in the public domain.

Where Member States solely assess in an individual decision the safety of a country of origin with respect to a particular applicant, such a decision need not be motivated on the basis of a general assessment as provided above.

[2] See Articles 23 and 29 in COM (2000) 578 final

[4] Article 20 in COM (2000) 578 final. No changes have been made.

[5] Article 21 in COM (2000) 578 final. No changes have been made.

[6] Article 22 in COM (2000) 578 final. No changes have been made.

[7] Former Article 23 (5) in COM (2000) 578 final

[9] Article 30 in COM (2000) 578 final. No changes have been made.

[10] Article 31 in COM (2000) 578 final. No changes have been made.

[11] See Article 24 in COM (2000) 578 final