DIRECTORATE-GENERAL JUSTICE AND HOME AFFAIRS
Unit A2 Immigration and Asylum
Brussels, 29 January 2002
DG JHA/DA/MV (2002) 532
This document serves as a description of proposed revisions to the text of COM (2000) 578 final, taking into account the Council Conclusions and the discussions at official and ministerial level on the proposal. It contains:
1. On points that were left open for discussion in the Council Conclusions or otherwise require substantial further discussion before an amendment can be produced, a description of orientations, principles or options on the basis of which, if approved by delegations at the first drafting session, new provisions can be presented at the second drafting session;
2. Where appropriate, suggestions for the introduction of amendments proposed by the Resolution of the European Parliament (A5-0291-2001) or the ideas underlying them;
3. A description of a possible approach on the basis of the working document on the relationship between safeguarding internal security and complying with international protection obligations (COM (2001) 743 final) ;
4. Suggestions, based on observations from Member States in the course of expert and ministerial meetings, for (editorial) amendments to provisions of the existing proposal.
Find in the ANNEX text suggestions for amended Articles on principles and guarantees, appeal procedures, manifestly unfounded applications, repeat applications and time limits in accordance with the Council Conclusions. These suggestions merely serve as the concrete illustration of the approach described in this discussion document.
For the remaining Articles (purpose, definitions, scope, admissibility, safe countries of origin, withdrawal of refugee status, final provisions) as well as the Annexes on safe countries the text is presumed, for the purpose of this particular drafting session, to stand as laid down in ASILE 45 (20 September 2001) and SN 4434/1/01 REV 1.
For a second drafting session we envisage to discuss a complete draft text of the modified proposal, taking into account the observations made at tis session.
You are referred to the website of the EP for its legislative resolution of the proposal:
The order of the Articles is provisional and observations on this are welcome.
B. OVERVIEW OF A POSSIBLE MODIFIED PROPOSAL
I. Chapter I - Scope and definitions - Articles 1 – 3.
The first chapter remains unchanged at this stage. For the definitions we refer to ASILE 53 on horizontal issues in the asylum proposals and the ongoing discussions in the asylum working group.
II. Chapter II – Basic Principles and guarantees - Articles 4 – 17. There are editorial amendments elaborating on the discussion of document SN 4434/1/01 REV 1 at the asylum group meeting of 15 and 16 November 2001. Orientations are presented for a revision of the provision on detention (11). Modification of provisions for resources, qualifications and training of the competent authorities are discussed (former 12-14) and draft Articles are presented.
III. Chapter III – Accelerated procedures - Articles A-D (= Art. 18-23, 27-31 of COM (2000) 578 final).
The Council Conclusions lay down that the future directive shall contain minimum standards for a regular procedure and an accelerated procedure for manifestly unfounded and inadmissible cases. It was decided in the asylum group meeting of 15 and 16 November 2001 that accelerated procedures are to be in chapter III and regular procedures in chapter IV. There are suggestions for editorial amendements in the definition of manifestly unfounded cases (A) and in the procedural framework (time limits + exceptions) (B). A tentative draft for new provisions on repeat applications (C) and orientations on border procedures (D), not discussed in detail beforehand. Several amendments of the EP are considered. There are no new provisions on inadmissibility discussed in this document.
IV. Chapter IV – Regular procedures - Articles E, F (= Artt 24-26 COM (2000) 578 final). A provision on the time limit and its exceptions (E) and on the Article establishing the standard and burden of proof (F).
V. Chapter V – Appeal procedures - Articles G - K (Art 32-40 COM (2000) 578 final).
A re-organisation of the chapter on appeal procedures on the basis of the Council Conclusions.
C. EXPLANATION PER ARTICLE / POINTS OF DISCUSSION
II. Basic principles and guarantees
4. Access to the procedure
The European Parliament proposes to add a paragraph in Article 4 which states that Member States’ obligations pursuant to this directive shall apply as soon as a person at their border or on their territory indicates to their authorities that he or she may be in need of protection. One could envisage a provision worded along these lines, although the scope of the term protection would need to be examined.
(1) - Upon request of a few Member States, Article 4(1) has been reformulated to lay down in precise terms the idea expressed in the Comments that the paragraph prohibits the use of time limits for requesting protection for the purpose of denying access to the asylum procedure.
(2) - A new paragraph is added following the suggestion that the basic principle that an application is made in person by an applicant should find expression in the text.
For the issue of independents it is proposed to allow Member States to maintain national rules under which a person can also make an application for asylum on behalf of his dependants, but for the sake of legal certainty, to require these MS to lay down the conditions for a separate application in national law. The issue of information to provide to the independents should go to Article 7 (guarantees). See paragraph 3 of Article 7.
(3) - Amendement to clarify the obligations of authorities to whom an applicant for asylum in all likelihood addresses his request and which are not competent to examine and decide on applications.
A point of discussion is how we can properly describe the authorities which are subject to this obligation. In the 1995 Resolution reference was made to ‘the authorities responsible for border controls and the local authorities with which application for asylum are lodged’.
5. Right to stay pending the examination of the application
As proposed at the asylum working group of 15 and 16 November 2001 the scope of this provision is to be limited to the decision of the authority in the Member State responsible for determining refugee status (= determining authority).
Following EP amendment nr 21 the principle of non-refoulement as worded in Article 33 (1) of the Geneva Convention could be taken over in this Directive, either in this Article or in a new one.
The following aspects have to be taken into account when taking a decision on this proposal for an amendment. Article 19 of the Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need protection (COM (2001) 510 final) already provides that Member States shall respect the principle of non-refoulement. Moreover, the above mentioned working document of the Commission provides in paragraph 4.3.4. that an additional paragraph to this Article could be considered, in accordance with Article 33(2) of the Refugee Convention.
6. Requirements for the examination of applications
(1) - Former Articles 6, 13 (1) and 14(1)(d) of COM (2000) 578 final are combined in one paragraph. After all, they are all formal requirements for a fair examination of applications. They should be obligations for all determining authorities in the EU.
There has been discussion about the reference to independency. It might be helpful, to replace this term with «without prejudice».
(2) – The requirement to provide access to sources of information should be extended to reviewing bodies (=appeal instances examining the decision by the determining authority).
6 A Requirements for a decision
A new Article to lay down formal and material requirements for a decision. This was the second sentence in draft Article 7 (d) as simplified during the Belgian Presidency. A separate Article is proposed to avoid any confusion about the difference between former 7(d) [requirements for the written decision in the language of the Member States] and former 7(e) [requirements to inform orally or in writing in general terms the applicant of the consequences of this decision, in a language he can reasonably be expected to understand].
7. Guarantees for applicants for asylum
1(a) - Following the discussion in the meeting of 15 + 16 November 2001 it is proposed as a compromise to make reference to both rights and duties of the applicant. It is suggested to consider amendment 23 of the European Parliament which provides that this information may also be conveyed by means of an information sheet. This reflects the Comments to COM (2000) 578 final.
1(b) - The obligation to call upon and pay for interpreters is limited to « when possible or reasonable », upon request of some Member States. Moreover, it can be clearly limited to situations of interviews for the asylum process in the first instance.
1(c) - Introduction of the obligation of UNHCR to be in agreement with a Member State if it wants to mandate another organisation to represent UNHCR on the Member State’s territory.
1(d) - Amendement to reflect the idea that the legal adviser or other counsellor should also receive a copy of the decision, if they have been chosen and their appointment has been notified to the MS (« where applicable »).
(2) - A separate provision to take into account the situation of Member States where UNHCR has an official role in the procedure.
(3) - At the asylum group meeting of 15 + 16 November 2001 considerable national differences came to the fore in the treatment of independants, notably with regard to the personal interview. It is proposed to introduce as a minimum standard for the EU the obligation by authorities to invite in private adult independants to provide information on the application for asylum and leave it at that. See also Article 4(2).
N.B. We will need to clarify the extent to which this Article is applicable to appeal bodies, perhaps in a fourth paragraph. For now, only paragraph 2 (c) (prerogative of UNHCR) is worded so as to also explicitly cover the appeal stages.
8. Personal interview
It is proposed to split the former Article 8 in three different provisions outlining respectively the personal scope of this provision (Article 8), the objective requirements for the setting of the interview (Article 8 A) and the status and role of the personal interview in the procedure (Article 8 B).
Article 8 (1) lays down the principle that every applicant for asylum shall have the opportunity to have a personal interview before a decision in first instance is taken. Paragraphs (2), (3) and (4) list possible exceptions relating to reasons of more or less permanent ‘incapacity’.
Clarifications on the scope and consequences of these exceptions are proposed under paragraphs 3 and 5, taking into account, inter alia, the discussion about medical reasons at the asylum working group of 15 + 16 November 2001.
The draft Article as it now stands does not provide any standard on deferral of interviews in cases of temporary non-availability of the applicant. It merely regulates the situation where Member States do not have to provide applicants with an opportunity to have an interview. A paragraph on deferral could be introduced or it could be left to national law.
Article 8 A includes the new provision discussed in the group on changing interpreters.
Article 8 B provides a more flexible approach to the issue of the record of the interview and its role in the procedure. Underlying this Article is the idea of ‘equality of information’ between applicant and determining authority. There is a special provision in case agreement on the contents of the interviews is asked, and upon request of one Member State (B) a paragraph on the consequences of a refusal to agree with the contents is proposed.
9. Legal assistance and representation
The term ‘legal assistance’ is replaced by ‘legal adviser or other counsellor’ where this is appropriate in this Article.
(2) – Upon request of one Member State, this paragraph regulates the problem of a Member State that wants to restrict access to legal aid to a group of advisers specifically appointed for that purpose by the government.
(3) – This paragraph proposes a text that reflects the idea of one Member State that access to the file is the appropriate minimum standard for legal assistance.
(4) – A distinction is made between ‘access’ to legal assistance and representation and its actual provision. Applicants are free to consult, on their own cost, legal advisers or other counsellors. However, where they require legal assistance and/or representation to be provided free of charge, a number of conditions can be imposed. Upon request of Member States the term ‘reasonable and adequate’ is introduced in this context. Moreover, the possibility of a legal merits test is recognised, provided stringent criteria are met (a procedure by law, an independent authority assessing the request, criteria laid down in advance by law).
(5) – Editorial improvements of the provision on ‘closed areas’. The reference to security reasons is of importance in the case of international transit zones.
10. Guarantees for unaccompanied minors
We have added the term « without prejudice to Articles 8« (= the possibility not to invite minors below a certain age for the personal interview) as well as a reference to a proper training (former Article 14 (d)).
An idea might be to introduce the provision that the procedure is suspended until a legal guardian or adviser is appointed, so as to ensure the best interests of the child are properly taken into account from the start of the procedure.
The Council Conclusions underline the principle that a person should not be detained for the sole reason that he is an applicant for asylum. In COM (2000) 578 final, this principle was included, while subsequently the grounds of detention were solely defined in the light of certain specific needs of the authorities to detain applicants for the purpose of the examination of their applications as such.
Since Member States suggested to add a detention ground relating to an (imminent) negative decision (a Dublin transfer) it is proposed to make two separate Articles on detention. Article 11 would solely cover the situation of detention before a decision is taken by the determining authority. Paragraphs 2, 3, 4 of this Article reflect the comments which relate to grounds to detain for the purpose of examination of his case. Article 11 A, on the other hand, would take up the suggestion of Member States to add detention to facilitate Dublin transfers.
(6) Taking into account the wording of Article 63(1) d EC Treaty, it is proposed that merely a reference is made to underline the prerogatives of Member States to detain rejectees for reasons related to expulsion after a negative decision, as it is arguably not necessarily covered by the term of ‘procedures for granting and withdrawing refugee status’.
12. Requirements for an efficient examination of applications
Article 12 of COM (2000) 578 final lays down the obligation of authorities to ensure that all different bodies, including courts or tribunals, are adequately provided with staff and equipment, so as to discharge their duties under this Directive. The intention of the Commission with this provision was to underline the responsibility of EU governments for an effective asylum processing system as a whole. Virtually all EU governments have at some time introduced (financial) measures to remedy delays in case management and in this respect an assessment of the needs of all competent authorities makes sense. An alternative is to replace the obligation by an obligation of Member States to regularly assess the needs of their competent authorities in this respect, and to adopt appropriate measures.
It is proposed to delete present Articles 13 and 14. Some provisions have been taken up in other Articles.
15. Data confidentiality
It is proposed to have a more general discussion about the issue of data confidentiality.
While data protection in the case of applicants for asylum seems an obvious guarantee, the extent to which Member States are held to refrain from activities that may result in a knowledge by third parties or the country of origin of the existence of an application for asylum is not always clear. Public registers in countries of origin need to be consulted in some cases. Rejected applicants may sometimes be presented to embassies of countries of origin in order to prepare deportation measures before appeal has been decided. Through CIREA Germany has asked a question about the practice in Member States.
At the last asylum group meeting there was no agreement whether to stick to the Commisison proposal or to take over the proposal of the Belgian Presidency. In the asylum group meeting of 18 + 19 June 2001 Member States made interventions about (1) the consequences of this provision for appeal instances ; (2) the possibility for the applicant to voluntarily lift the obligation ; (3) the inclusion of other situations not listed in the Commission proposal, namely safeguards for the exchange of information between Member States and to third countries ; (4) the need for a a statutory time limit on keeping data confidential and (5) the relationship with rules on publicity of decisions or rulings by independent appeal bodies.
16. Procedure to follow in case of implicit withdrawal
In COM (2000) 578 final Article concerned the closure of the file where an applicant has voluntarily withdrawn his application or has disappeared. Having heard the discussion, it is proposed to have two Articles: one on the situation of implicit withdrawal (lack of co-operation) and one on explicit withdrawal (Article 16 A).
Several editorial amendments to the old text are proposed, following the discussions in the asylum group meeting of 15 and 16 November 2001. Paragraph 1 reflects the main idea that when the applicant disappears or does not respond to requests for input and information in the asylum process, he seems to implicitly withdraw his application, thus allowing Member States to discontinue or suspend the examination or, if they so wish, to reject the application. Paragraph 2 lists the grounds for this assumption. Paragraph 3 contains the procedural consequences.
N.B. This raises the issue of the relationship with the Dublin II Regulation. There is the situation of applicants who have filed a second application in a Member State than the one which should take charge of the applicant. The responsible Member State has the obligation to take these persons back and to examine their case according to the Dublin II Regulation. In these cases it should therefore be clear that the sole fact that an applicant has disappeared and requested asylum elsewhere in the Union, should not have as an effect that a decision on his case can never be positive, because it is considered a new application with no new relevant facts according to Articles C or 16.
It is proposed to discuss the need for applicability of these standards during appeal (see the draft in paragraph 4).
Finally, it was suggested at one stage to discuss the need to introduce a more general standard ensuring registration of individual applications. Since EURODAC is intended to ensure an effective implementation of the Dublin II Regulation, it is believed not necessary to introduce such a general standard.
16A. Explicit withdrawal of applications
A separate but short provision on explicit (voluntary) withdrawal, admittedly a different situation than ‘implicit’ withdrawal deduced from a lack of co-operation’ as described under Article 16. For sake of legal certainty, Member States should clarify in national law the means to withdraw; formal requirements (« in person », « in writing ») should be at least the same as for the making of the application.
17. Role of UNHCR in the procedure
Questions were raised by a few Member States about the scope of the term ‘to make representations’ in (1) (c) in the asylum group meeting of 16 May 2001. The idea is that UNHCR can submit written observations on an individual application to any authority at every stage of the procedure, e.g. in case it believes general issues of international refugee law is at stake. This should include a role as ‘amicus curiae’, i.e. a person, not directly engaged in a case, who advises the court. An alternative wording could be ‘to present its views’ whilst we could also consider adding a paragraph which specifies restrictions Member States can impose on the role of UNHCR, e.g. that it can not represent applicants for asylum in judicial proceedings.
Regarding the role of UNHCR and possible organisations representing it the same amendments are proposed as in Article 7.
III. Accelerated procedures
A. Manifestly unfounded applications
As a result of the Council Conclusions the character of the accelerated procedure has changed (see also under Articles B and H).
The new text makes clear that an application can only be declared manifestly unfounded if it is unfounded. This is reflected in the introduction to the list of categories. The categories, listed in the second paragraph, can only be considered as indications, but are in themselves not enough for rejecting application as unfounded. Non-compliance as such, for example, can not be the ground for rejection if the Geneva Convention is to be respected. The applicant can still be a genuine refugee, even though he does not comply with important obligations. Therefore it is also proposed to replace ‘dismiss’ by ‘reject’, as asked for by one Member State. Under these conditions, suggestions for new grounds have been incorporated in the text.
(1) + (2) - Several editorial amendments are made (inter alia a description of refusal to co-operate) following the discussions in the asylum group meeting of 15 and 16 November 2001 and the Council’s Conclusions (II §1. Nrs. 8 and 9).
(3) - COM (2000) 578 final provided for a second paragraph, with a restriction for manifestly unfounded (not if Article 1F Geneva Convention or internal flight alternative applied). It was deleted during the Belgian Presidency, but some Member States have asked to re-introduce this paragraph, for it can be seen as an additional safeguard. The re-introduction of the prohibition to take decisions on Article 1F cases is proposed, but in accordance with paragraph 220.127.116.11 of the Commission working document on internal security (COM (2001) 743 final). There it is stated that in prima facie cases article 1F could also be applied during the accelerated procedure.
One Member State suggested to include a paragraph introducing the consequences of the accelerated procedure also to cases of applicants who are a danger to the security of the Member State or to its community, because of a serious crime. This issue is discussed in more detail under Article I.
Finally, it is suggested to examine the idea found in amendment 75 of the European Parliament’s Resolution. It states that if an applicant provides additional information relevant to the application or clarifies information previously communicated to the competent authorities of the Member States sufficient to suggest that paragraphs 1 + 2 do not apply, the application shall be processed in the regular procedure.
B. Procedural framework of an accelerated procedure
Following the Council’s Conclusions (§ 3.2.1.) the time limit for the accelerated procedure is set at three months. As a simplification it is proposed that the Article only contains one time-limit, whether a personal interview takes place or not. This means that a decision has to be taken within three months, bar the exception in paragraph 2.
It has been suggested to clarify the nature of the time limit. It could be determined whether the date of the decision, the date of its communication to the applicant or the date of its receipt by the applicant is decisive under the terms of this Directive. The rule should apply for all time limits agreed upon in this Directive.
An exception is to be made for applications decided in accordance with the Dublin II Regulations, where other time limits apply.
Moreover, it is proposed to discuss the possibility to decide that the consequences of an accelerated procedure will also apply once it can be determined that the applicant has frustrated the procedure and/or misled the authorities by withholding information that could have led to a decision in an accelerated procedure, had it been know before the expiry of the time limit for the accelerated procedure. This idea already found expression in Article 37(a) of COM (2000) 578 final. Such a provision would be best introduced in the Article on appeal procedures (probably in Article H).
(2) - Extension is possible, but only if the determining authority is seeking clarification from the applicant. This is a flexible formula which includes e.g. the case of an applicant who, at a very late stage in the procedure, has provided new documents or delivered new statements, perhaps to frustrate decision making in an accelerated procedure (Belgian Presidency text). The need to include situations of mass influx should be discussed. See also under E (time limits and exceptions under the regular procedure).
C. Procedural framework for new applications
Following paragraph 10 of the Council Conclusions a separate framework for new applications is proposed. It is inspired by the present German practice.
Introducing such a separate framework raises a number of issues. First and foremost, there is the issue of terminology. It is proposed to make a distinction between ‘new application’ and ‘repeat application’, but perhaps further distinctions are required. A new application would mean a second or consecutive application lodged in a Member State by an applicant after his (first) application in this Member State, regardless whether or not on the first application a decision has been taken. A « repeat application » would be a new application of a applicant that contains no relevant new facts with respect to his particular circumstances or to the situation in his country of origin (see Article 28(1)(f) of COM (2000) 578 final).
Secondly, it should be examined carefully to what extent specific rules under the terms of this framework require derogations in explicit terms from other provisions in the Directive. A derogation from Article 8 (personal interview) is already foreseen in paragraph 4. Member States have suggested at some stage of the discussions in the asylum group to consider exceptions for new applications from free legal assistance to fight abuse of the asylum process..
Paragraph 5 provides that the decision on the new application, indicating that no new decision is necessary, does not affect the previous rejection of the application so that enforcement action can continue. In addition, one can envisage another provision, stating that the appeal does not have suspensive effect and enforcement action may continue, if Article J (3) (b) is not considered sufficient to regulate this question.
Finally, whilst with this framework one particular approach is suggested, other procedural schemes to streamline new applications may also be worthwhile to explore. Article A has retained the option of a rejection in an accelerated procedure but it would be interesting to discuss other alternatives.
D. Border procedures
It is proposed to have a general discussion about the issue of border procedures.
The Council Conclusions do not provide guidance on the issue of border procedures. Some Member States have expressed the need for specific rules on border procedures, including rules on airport procedures and for safe third country cases. One Member State would like border procedures to fall outside the scope of the instrument. Other Member States opposed the idea of specific rules on border procedures.
COM (2000) 578 final fully incorporated border procedures in the light of a basic objective of harmonisation. Wherever persons lodge an applications for asylum in the EU, the same minimum standards for examining the case should apply, irrespective of the nature of the authority examining the case and of the national administrative framework within which the examination takes place. Would border procedures be excluded, a considerable number of applications in some Member States would be treated differently than others and this could perpetuate and, where other Member States take over the exception, increase potential disparities and secondary movements. Nevertheless, the proposal already acknowledged the necessity for some derogations, given the particular legal and practical environment in which these cases are examined. They include power to detain applicants and to require bodies to decide within special time limits.
It would be interesting to discuss if there is a fundamental distinction to be made between border procedures and other procedures that justifies a different approach in this Directive.
In this regard one could argue that, where in airports an applicant is considered an applicant under the Dublin Regulation, it does not make sense not to consider him as an applicant under the asylum procedures Directive.
However, if a difference is acknowledged, it seems there are basically two ways to operationalise it in terms of a Directive. The first option is an Article which aims to harmonize as much as possible border procedures in the EU, at least including rules on (a) which cases can be examined in such a procedure and (b) which minimum standards are applicable. This will require a thorough discussion, perhaps on the basis of an analysis of national practices and the assumptions underlying the fundamental distinction as mentioned above.
Another option is an Article which acknowledges the primacy of national law, subject to a limited number of exceptions and conditions. These would include for instance an obligation of Member States to prescribe by law the nature and conditions of the procedures (for the sake of legal certainty) and an obligation not to derogate from the basic minimum standards of this Directive.
A tentative draft for the second option reads as follows :
1. Procedures in which Member States refuse applicants for asylum the right to entry and to remain in the territory are based upon national law, subject to the provisions of this Article.
2. Member States shall determine by law which (categories of) applications can be examined in accordance with this procedure.
3. Member States shall lay down by law 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, 9 (1), 9(5), 11(5) and 17 of this Directive.
4. Member States shall ensure that applicants for asylum enjoy during this procedure the guarantees referred to in Articles 5, 7, G and J.
IV. Regular procedures
E. Procedural framework for the regular procedure
(1) - According to paragraphs 14 and 15 of the Council Conclusions the regular procedure should differ from the accelerated procedure in respect to the time-limit. The original proposal did not preclude a decision to be taken under the regular procedure within three months, for its intention was only to limit the grounds for rejecting as inadmissable or manifestly unfounded. See also the provision of Article 37 of COM (2000) 578 final, allowing Member States to consider a decision as taken under the accelerated procedure after three months.
(2) - Given the need for more flexibility, the general feeling at the asylum group meeting of 15 and 16 November 2001 was that the exceptions to the time limit should be fairly generally defined. It is proposed to take as a starting point for all exceptions the need of authorities to have the proper information before a decision can be taken. The grounds for extension are then distinguished according to three situations where clarification is sought (from the applicant in the first instance, from court or tribunal or from others), which were already identified by some delegations at this meeting.
(3) - For the sake of transparancy and legal certainty, Member States should be obliged to inform the applicant of these extension for individual reasons, although perhaps it need not be in writing.
(4) - It is proposed to deal in a separate paragraph with the reasons beyond the control of the determining authority. It seems this situation needs to be clarified further ; for now the wording is imprecise. Would it refer to a sudden large scale inflow of third country nationals, then the relationship of this provision with the procedure under Article 64 EC Treaty and the temporary protection directive needs to be examined. Whatever wording is chosen, the Commission should be informed in such situations of emergency, while it should in turn inform the other Member States. As for correct information towards the applicant, it could be more efficient to foresee in an obligation to give public notice (for instance in the national Official Journal) rather than in individual communications to each individual applicant.
(5) – Since most Member States rejected the possibility in COM (2000) 578 final for the reviewing body to take a decision failing a decision from the determining authority, a more simple solution is proposed. The applicant should have the right to ask the administration for a decision, once the time limit the government has set for a decision in the regular procedure is expired and no apparent reasons for extension exist.
F. Establishing the facts in the procedure
Editorial amendments are proposed for the Article entitled « establishing the facts in the procedure » (Article 25 of COM (2000) 578 final). One can envisage to transfer the Article to Chapter II, as the examination under the accelerated procedure now explicitly entails a substantive examination in light of the Geneva Convention.
V. Appeal procedures
G. The right to an effective remedy
It is proposed to simplify the chapter on appeal procedures. Point of departure is to lay down the normative standards for the appeal stage instead of attempting to harmonize the institutional framework in Member States as such, taking into account the Council Conclusions.
(1) – The new wording expressing the right to appeal is inspired by Article 47 of the Charter of fundamental rights of the European Union. It states that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal. Thus, the outcome (« an effective remedy ») is emphasized instead of the institutional set-up. To reinforce this idea, it is proposed to add to the term used in the Charter ‘or a court’, thus expressing the freedom of Member States to continue to decide upon their institutional framework for appeals in asylum procedures. The terminology of ‘a tribunal or court’ could be maintained throughout the Directive or subsumed under a general term such as ‘reviewing body’ in Article 2.
(2) - It is suggested that Member States may allow a ‘margin of appreciation’ doctrine for the scope of review, as is e.g. done in the Dutch system.
The Council Conclusions mention that for « judicial » instances one should also read « quasi judicial » instances. It is important to have a clear picture of what is meant with « quasi-judicial », for the European Court of Justice (ECJ) will have jurisdiction in these matters and is likely to examine whether the notion meets the standards set in its caselaw (Until now, the Court has not had a similar question. For an indication , see judgement of the Court of 17 December 1998, Case C-185/95 P.)
Caselaw of the ECJ provides that the requirement of a judicial control of a decision by a national authority flowing from Community law constitutes a general principle of Community law which is derived from the constitutional traditions common to the Member States of the European Community. Furthermore, this idea is also reflected in Article 47 of the Charter of Fundamental Rights of the European Union. Therefore, once a directive on minimum standards on procedures for granting and withdrawing refugee status has come into force, Community law requires that appeal against a decision in an individual application for asylum, should meet the requirements as set out in ECJ caselaw on the notion of judicial control.
It seems logical for the purpose of the appeals chapter, to confirm that this notion of « quasi-judicial » should cover the basic guarantees offered by a ‘normal’ judge. Traditionally (as laid down in article 6 ECHR), a judge must be independent and guarantee an impartial judgement, especially in regard to the executive authority. Furthermore, the procedure must be fair and legal. The judge should have the possibility for proper investigation, including as a rule the possibility of a fair and public hearing, and have the opportunity to confirm or nullify the decision at stake.
Therefore, it is proposed to explicitly include such requirements in the definition of a reviewing body in Article 2 of the future Directive.
H. Appeal on decisions taken in the accelerated procedure
The main point of discussion is how the appeal procedures in accelerated procedures should differ from those in regular procedures.
In COM (2000) 578 final differences in appeal related to time limits for lodging the appeal and those for decision making by the appeal body, to the number of instances and to the consequences of appeal (right to remain during appeal procedures).
The Council Conclusions underline there should be sufficient distinction between the accelerated and regular procedures. The distinction should notably relate to the standards on the time limits for examining the applications, the number of appeal instances, the nature and competences of these bodies, as well as the (suspensive) effect of the appeal (paragraphs 14 + 15). Paragraph 3.2.2. elaborates the standards for accelerated procedures. Member States can limit appeal in these cases to one instance which can examine the case on points of law only, provided this includes manifest error of judgement (instead of both facts and points of law). While in these cases there should be no automatic suspensive effect, the question of the consequences of an individual request for suspensive effect remained open (3.2.3.).
In Article K(a) Member States are left free to decide on time limits for lodging appeal. In Article I(3) it is suggested that Member States can limit the examination to two instances in manifestly unfounded and inadmissible cases. In Article J(3) it is suggested by way of compromise that expulsion may take place in inadmissible cases before a court or tribunal takes a decision on the request to allow the applicant to remain in the territory or at the border during his appeal.
In COM (2000) 578 final the first Article on appeal stated as a principle that review can be on both facts and points of law. This has been a point of discussion during the Belgian Presidency. The Council Conclusions provide in paragraph 3.2.2 that appeal in last instance in the accelerated procedure could be limited to points of law, including manifest error of judgement. This issue needs to be re-discussed with a view to determine the scope of the principle in asylum procedures and its possible exceptions, perhaps in this Article. It is reminded that some Member States would like to require a full appeal examination in all asylum cases.
The principle was included in COM (2000) 578 final because it seemed to reflect the practice in Member States.
Perhaps the scope of examination could be limited in inadmissible cases (or in Dublin cases) to points of law only, including manifest error of judgment. In these cases the risk of a violation of the principle of non-refoulement is either absent or negligent since deportation to another country than the country of origin is considered as safe. This is not necessarily the case in other cases.
I. The possibility of further appeal
This Article provides that if further appeal exists in a Member State, be it for the regular procedure or for both regular and accelerated procedures, the Member State concerned should as a minimum provide applicants with a right to seek leave to appeal from it. More importantly, it lays down in paragraph 3 the possibility to limit the examination to two instances in the manifestly unfounded and inadmissible cases which were according to the reviewing body rightly examined in the accelerated procedure.
As mentioned under B, it is proposed to introduce in paragraph 6 the possibility to apply the consequences for the appeal stage for manifestly unfounded or inadmissible applications equally to those cases in which such a decision could have been taken in the accelerated procedure, had the applicant not misled the authorities and withheld crucial information in this regard before the expiry of the time limit of the accelerated procedure.
This option could be extended to other situations described in Article 37 of COM (2000) 578 final, and in particular, the situation, suggested by one Member State, of a person whom there are reasonable grounds for regarding as a danger to the security of the Member State, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of the Member State. Alternatively, a separate provision could be foreseen to allow the latter cases to be processed in the accelerated procedure. The idea to prioritise cases of potentially serious disruption of public order is also at the basis of amendment 95 of the EP’s Resolution.
J. The right to stay pending appeal
The Council Conclusions leave the question of suspensive effect in regular procedures open, whilst for appeal procedures there should not be automatic suspensive effect (paragraphs 3.1.3 and 3.2.3).
Com (2000) 578 final proposed that there should be suspensive effect in a number of cases, most notably in the regular procedure.
It could be proposed to go back to the language of the 1995 Minimum Guarantees Resolution which did not specify the cases in which Member States can derogate from the principle that appeal has suspensive effect, but merely states that where this is the case, the reviewing body must decide on any requests for suspensive effect by the applicant. Accepting this option will mean that in the first stage harmonisation, no common ground has been found on the issue of suspensive effect beyond what has been agreed upon seven years ago.
The category under paragraph 3 (a), inadmissible cases, has been suggested by a few Member States in the course of discussion during the Belgian Presidency. Perhaps this category is too broad and it should be restricted to Dublin cases or otherwise be abandoned altogether.
K. Time limits and nature of the examination in appeal
This Article takes up a number of disparate provisions from COM (2000) 578 final and merely requires Member State to regulate these issues in national law to ensure transparancy and legal certainty.
D. OTHER ISSUES
It is proposed to have a general discussion about the relationship between the modified proposal and the issues raised in the Commission working document on the relationship between safeguarding internal security and complying with international protection obligations and instruments (COM (2001) 743 final).
In the working document it is proposed to examine in more detail the handling of applications for asylum in extradition cases. It concerns two sets of cases, namely (a) where an international criminal court has indicted the individual who has claimed asylum and (b) where an extradition request from a country other than the country of origin of the applicant, is pending.
Paragraphs 18.104.22.168 and 22.214.171.124. of this working document elaborate on two different options to handling applications for asylum in extradition cases. Delegations are referred back to these paragraphs.
Member States are invited to discuss these options and if viewed favourable, how to operationalise the idea in the Directive.