ANNEX

ANNEX

Suggestions for the text of some Articles of the future Directive for the purpose of discussion

CHAPTER II

Basic principles and guarantees

Article 4

Access to the procedure

1) Member States shall ensure that applications for asylum are rejected nor excluded from examination on the sole basis that applicants for asylum are required to make their application upon arrival at the border or within a certain time limit after entry into the territory.

2) Member States may require an applicant for asylum to make his application at the border or on the territory of the Member State in person.

Member States may provide by law that an application for asylum can also be made by a person on behalf of his dependants. In this case, national law shall lay down the conditions under which a person must be able to make a separate application for asylum in his own right, taking into account the provision of Article 7(3).

3) Member States shall ensure that the examination of an application 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, together with 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, in airport transit zones or on the territory of the Member State in which the application for asylum has been made or is being examined as long as the determining authority has not taken 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) decisions are taken individually, without prejudice and on the basis of the facts of the case by authorities qualified in the field of asylum and refugee law ;

(b) precise and up to date information from various sources, including information from UNHCR, concerning the 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;

(c) the personnel has the necessary basic knowledge with respect to relevant standards applicable in the field of asylum and refugee law, including this Directive.

2. Members may decide that the information, referred to in paragraph 1 is also made available to reviewing bodies and any other bodies competent to examine and /or decide upon applications for asylum .

Article 6 A

Requirements for a decision

Decisions on applications for asylum are in writing.

If an application is rejected, the reasons in fact and in law shall be stated in the decision.

Information on remedies shall be given in writing.

Article 7

Guarantees for applicants for asylum

1. With respect to all procedures provided for in 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);

(b) They must be given the services of an interpreter for submitting their case to the competent authorities whenever reasonable or possible. Member States may decide that this is limited to all situations in which applicants are interviewed for this purpose before a decision is taken by the determining authority. These services must be paid for out of public funds, if the competent authorities call upon the interpreter.

(c) They must be given the opportunity to communicate with the United Nations High Commissioner for Refugees (UNHCR) at all stages of the procedure, except during interviews and subject to paragraph 2. The same applies to other organisations working on behalf of the UNHCR pursuant to an agreement with the Member State.

(d) They must be notified of the decision taken by a determining authority on their application for asylum. Where applicable, the decision shall also be notified to the legal adviser or other counsellor assisting and/or representing the applicant.

(e) Where possible, they must be informed in person of the decision by a determining authority in a language that they can reasonably be expected to understand. The information provided shall include the conditions for possible remedies and/or the mandatory steps to be taken.

2. Paragraph 7(1)(c) 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 before a decision is taken by the determining authority.

3. 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.

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.

Article 8

Persons invited to a personal interview

1) Before a decision is taken by the determining authority, the applicant for asylum must be given the opportunity of a personal interview on his application for asylum with an employee competent under national law.

2) Member States may derogate from paragraph 1 in cases where it is possible to give a positive decision on the basis of evidence available or the competent authority is of the opinion that the applicant can not have or is unable to attend such an interview for permanent reasons. Permanent reasons means, that the applicant can not be interviewed within the time limit referred to in Article E, including after extension of the time limit.

3) Member States may require a medical or psychological certificate in order for the applicant to substantiate his claim , if the applicant claims to be unable to attend the interview because of psychological or medical reasons.

4) Member States may lay down by law or regulation that minors below a certain age can not have or are unable to attend such an interview.

5) In the cases referred to in paragraphs 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. This rule also applies in cases where the applicant can not have an interview because no interpreter can be made available within a reasonable time.

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 to take 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 shall not as such 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, when appointing the official to conduct an interview and the interpreter, account shall be taken 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.

Article 8 B

Status of a personal interview in the procedure

1. Member States may request the applicant’s agreement on the contents of the transcript of the personal interview. In this case, Member States shall at least inform the applicant of the main findings of this interview and give him the opportunity to request or propose corrections because of mistranslations or misconceptions.

2. Member States shall ensure that applicants have access to the main findings of the personal interview on which the decision is or will be based, at least when the applicant has filed an appeal.

3. The decision to reject an application for asylum from a person who refused to agree with the contents of the personal interview is not solely based on this refusal.

Article 9

Legal assistance and representation

1) Member States shall ensure that all applicants for asylum have the opportunity to consult in an effective manner a legal adviser or other counsellor at all stages of the procedure.

2) 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 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 file of this applicant.

4) Member States shall ensure that all applicants for asylum enjoy access to legal assistance and /or representation by a legal adviser or counsellor after an adverse 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.

5) Member States shall ensure that a legal adviser or other counsellor assisting and /or representing 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 assisting and /or representing an applicant for asylum.

6) In the regular procedure as referred to in Articles …. the applicant’s legal adviser or other counsellor shall be informed of the time and place of the personal interview and invited to attend.

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 Article 8, Member States shall ensure that all unaccompanied minors enjoy the following guarantees:

a) A legal guardian or adviser must be appointed as soon as possible to assist and/or represent them with respect to the examination of the application;

b) The appointed legal guardian or adviser must be given the opportunity to help prepare them for the personal interview. Member States shall allow the legal guardian or adviser of an unaccompanied minor to be present at this interview and to ask questions or make comments.

2) Member States shall ensure that

a) The personal interview with an unaccompanied minor is conducted by an official trained 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 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;

b) 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.

c) The decision to reject an application for asylum from an unaccompanied minor who refused to undergo this examination is not solely based on this refusal.

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 and only for as long as is it necessary for its purpose pursuant to paragraphs 2, 3 and 4 of this Article and without prejudice to Article D.

This article does not apply as soon as a Member State has accepted to take charge of the examination of the application and the applicant is detained pending his transfer to this Member State as referred to in Council Regulation ../… [Dublin II]

2) Member States may hold an applicant for asylum in detention in order to ascertain or verify his identity or nationality if reasonable doubts exist in this regard.

3) Member States may hold an applicant for asylum in detention during the examination of the application if it is in the interests of maintaining an effective asylum process in the following cases:

(a) There are reasonable grounds for believing that he would otherwise fail to comply with his obligations described in Articles 16(2) and F (1) of this Directive and abscond;

(b) There are reasonable grounds for believing that he can be denied protection on the basis of Article 1F of the Geneva Convention and can reasonably be considered as a risk for the national security or a threat to the public order;

(c) There are reasonable grounds for believing that he failed without reasonable cause to to lodge an application earlier, has had ample opportunity to do so, and is making the application to delay or frustrate the enforcement of an earlier or imminent decision on an application for asylum;

(d) The applicant has entered the territory of the Member States unlawfully and, without good reason, has not presented himself to the authorities as soon as possible given the circumstances of his entry.

4) 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.

5) 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 2 and 3.

6) This Article is without prejudice to the prerogatives of Member States to detain persons whose application for asylum have been rejected in order to facilitate their deportation or who present a serious threat to public order or national security

Article 11 A

Detention after accepting to take charge (Dublin II)

1) Member States may also hold an applicant in detention in accordance with a procedure prescribed by national law for the purpose of his transfer to the Member State that has accepted to take charge of the examination of the application of the applicant.

Article 11 does not apply.

2) Member States may hold the applicant in detention from the moment another Member State has accepted to take charge until the moment the applicant is transferred to the other Member State. The detention shall not exceed the time limit for transfer set in the Council Regulation (Dublin II).

Article 12

Requirements 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) for the examination of applications under the regular procedure is not adequately complied with.

Article 15

Data confidentialty

Discuss

Article 16

Procedure to follow in case of implicit withdrawal of the application

1) Member States may allow the competent authority either to discontinue or suspend the examination of an application, or to reject the application as manifestly unfounded only in situations where it can reasonably be assumed that the applicant has withdrawn no longer has an interest in a decision on) his application.

2) It is assumed that the applicant has withdrawn his application if

(a) It is ascertained that he has not complied for at least 2 weeks 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 and has not provided good reason for doing so;

(b) It is ascertained that he has otherwise disappeared or has left without authorisation the place where he was held and has not contacted the competent authority within 4 weeks.

3) If the applicant places himself at the disposal of the authority for the purpose of the examination of his application for asylum after the examination of the application has been discontinued or suspended pursuant to paragraph 2, Member States may allow the determining authority to take up the examination at the stage in which the first application was discontinued or suspended.

If the applicant does not provide reasonable gronds for his non-compliance, the application can be rejected as manifestly unfounded pursuant to Article A, paragraph 2, sub h.

If the application has been rejected pursuant to paragraph 2, Member States may require the applicant to make a new application. Such an application can be rejected as manifestly unfounded pursuant to Article A, paragraph 2, sub f, if the applicant does not raise new relevant facts with respect to his particular circumstances or to the situation in his country of origin.

4) Paragraph 2 also applies in cases where Member States want to assume that an applicant has withdrawn his appeal as referred to in Articles G – K.

Article 16 A

Explicit withdrawal of applications

1) Member States may also discontinue the examination or reject an application if the applicant has explicitely withdrawn his application. To that end Member States shall provide that the same requirements apply for withdrawal as for the making of an application.

2) Paragraph 1 also applies at the stage of appeal as referred to in Articles G-K.

Article 17

The role of UNHCR

1. Member States shall take appropriate measures to enable the UNHCR:

(a) to have access to applicants for asylum, including those in detention and in airport 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 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 to other organisations working 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

Article A

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 shall ensure that an application for asylum is never rejected as manifestly unfounded solely because one or more of the indications, referred to in the second paragraph, apply.

2) The indications, referred to in the first paragraph, are:

(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 on an application for asylum;

(h) the applicant failed to comply with obligations as provided for in Articles 16 (2) and Article F 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 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.

3) Discuss

Article B

Procedural framework for an accelerated procedure

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

2) The time limit referred to in paragraph 1 can be extended for three months where a decision can not be taken within the time limit because the determining authority is 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.

Article C

Procedure for new applications

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 ;

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.

Article D

Border procedures

Discuss

CHAPTER IV

Regular procedures

Article E

Procedural framework for the regular procedure

1) Member States shall adopt by law or regulation a reasonable time-limit, not exceeding one year, for examinations of applications for asylum by the determining authority.

2) The time limit referred to in paragraph 1 can be extended for six months where a decision can not be taken within the time limit for one of the following reasons:

(a) the determining authority is 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 G or an instance for appeal as referred to in Article I 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.

In these cases Member States shall ensure that the applicant shall be informed in person of the extension of the time-limit in writing before the expiry of the original time limit.

3) The time-limit referred to in paragraph 1 may be extended for three months if the determining authority is unable to comply with this time-limit for reasons beyond its control. Applicants will be informed in an appropriate manner as soon as possible. The Commission shall also be informed of this situation. The Commission shall inform the other Member States.

4) An extension can only be valid after it has been communicated according to paragraphs 2 and 3.

5) In case of an expiry of the time limit referred to in paragraphs 2 or 3, applicants shall have the right to ask the appropriate authority that a decision is taken within reasonable time.

Article F

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 relevant for the Geneva Convention of his case 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 justifying his need for international protection.

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 credibility of the applicant’s need for international protection 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.

CHAPTER V

Appeals procedures

Article G

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 a tribunal of the decision taken by the determining authority.

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

3) The examination of the court or tribunal may be limited to the question whether or not the determining authority could have reasonably taken the decision on the basis of the established facts.

4) The discontinuation or suspension of an application is considered a decision for the purpose of this chapter.

Article H

Appeal on decisions taken in the accelerated procedure

Discuss

Article I

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.

3) Member States may deny 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 applicants have, 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 J

The right to stay pending appeal

1) Member States shall allow applicants for asylum to remain at the border, the airport transit zones or on the territory of the Member State concerned awaiting the outcome of the decision of the court or tribunal referred to in Article G.

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

In cases where Member States derogate from paragraph 1, the court or tribunal must have the 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 the court or tribunal has taken a decision as referred to in paragraph 2 except in the following cases:

(a) Where the determining authority has taken a decision 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 a decision has been taken 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 the determining authority has taken a decision 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 K

Time limits and scope of the examination in appeal

Member States shall lay down by law or regulation:

(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 ;

(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.