GEN

I. DEFINITIONS

Wording

Commentary

Related provisions

1. Third-country national

Dublin II

“means anyone who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty establishing the European Community

This notion is defined only in Dublin II, but the words appear in other proposals.

The proposed definition is identical to that which appears in the proposal on family reunification

2. Asylum application

Procedures

“means a request whereby a person asks for 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 request for protection is presumed to be an application for asylum, unless the person concerned explicitly requests another type of protection that can be applied for separately”

Reception conditions

“means a request by a third-country national or a stateless person for international protection from a Member State which can be understood to be on the grounds that that person is a refugee... (further, like above)”

Dublin II

“means the request for protection which is submitted by a third-country national to a Member State and which can be regarded as having been submitted on the grounds that the third-country national is a refugee within the meaning of Article 1(A) of the Geneva Convention. Any request for protection shall be deemed to be an asylum application, unless the person concerned explicitly seeks another type of protection for which a separate request can be submitted”

Refugee status/subsidiary protection

Like the first sentence in reception conditions

NB : this definition follows the definition of

Application for international protection

“means a request by a third-country national or a stateless person for protection from a Member State, which can be understood to be on the grounds that the applicant is either a refugee or a person eligible for subsidiary protection. Any application for international protection is presumed to be an application for asylum save where the applicant explicitly requests another kind of protection that can be applied for separately”

The choice of the words person or third-country national(or stateless person) proceeds from the wording of the treaty: Article 63.1 refers to third country nationals in points a) and c), not in points b) and d).

The second sentence of the definition is questioned by some Member States that disagree that any application for protection should be deemed an application for refugee status, while other Member States regret that applications for subsidiary protection are not included.

The choice of words affects the scope ratione personae; where the word person is used, the instrument is applicable to citizens of the European Union.

3. Applicant for asylum

Procedures

“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 this Directive have been exhausted”

Reception conditions

“...idem...(person being replaced with third-country national or stateless person). A final decision is a decision in respect of which all possible remedies under Council Directive .../.../EC have been exhausted”

Dublin II

Idem

The differences in wording are necessary in order to make a reference to provisions which appear only in the proposal for a Directive on procedures; they do not change the meaning of the definition.

The notion of “final decision” as defined here with a reference to the exhaustion of the legal remedies provided for in the proposal on procedures is questioned by some Member States. This issue is linked to the debate on the number of appeal levels and their features.

4. Refugee

Procedures

“means a person who fulfils the requirements of Article 1(A) of the Geneva Convention”

Reception conditions

Idem

Dublin II

“means any third-country national qualifying for the status defined by the Geneva Convention and authorised to reside as such on the territory of a Member State”

Refugee status/subsidiary protection

“means a third-country national or a stateless person who fulfils the requirements laid down by Article 1(A) of the Geneva Convention and set out in Chapters II-III of this Directive”

The proposals procedures, reception conditions and refugee status/subsidiary protection aim at a proper implementation of the Geneva Convention; therefore, it is necessary that the word refugee be defined there by a reference to the said Convention.

In Dublin II the place of residence of a refugee is a criterion for the allocation of responsibility. Responsibility is allocated whether refugee status has been granted on the basis of the Geneva Convention or on the basis of ‘constitutional asylum’ as exists in some Member States. Besides, it is necessary that the refugee be a resident in the Member State concerned: refugees who are only temporarily present are not relevant for the allocation of responsibility.

Procedures: Article 26

Dublin II: Article 7

Refugee status/subsidiary protection: Articles 4 ; 5 ; 6 ; 13 ; 14 ; 21 ; 23 ; 24 ; 31

5. Refugee status

Procedures

“means the status granted by a Member State to a person who is a refugee and is admitted as such to the territory of that Member State”

Reception conditions

Idem

Refugee status/subsidiary protection

“...idem... of that Member State and/or permitted to remain and reside there”

Procedures: Article 26

Refugee status/subsidiary protection: Articles 4 ; 5 ; 6 ; 13 ; 14 ; 21 ; 23 ; 24

6. Unaccompanied minor

Procedures

“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 an adult”

Reception conditions

“means persons below the age of eighteen... ; it includes minors who are left unaccompanied after they have entered the territory of the Member States”

Dublin II

“means any third-country national under the age of eighteen who arrives [or are left] on the territory of a Member State without being accompanied by an adult responsible for him whether by law or by custom, and for as long as he is not effectively in the care of such a person”

Refugee status/subsidiary protection

“means third-country nationals and stateless persons below the age of eighteen... (further, like in reception conditions)”

At this stage of the negotiation, only the definition appearing in the Directive on procedures does not cover minors who are left unaccompanied by the adult(s) who accompanied them after having entered the territory of a Member State. (The words between square brackets in Dublin II have been mistakenly omitted in the EN translation although they appear in the FR original.)

NB : this definition is taken from the 1997 Resolution on unaccompanied minors. It appears also in Council Directive 2001/55/EC on temporary protection where it reads:

“means third-country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they have entered the territory of the Member States”

Procedures: Article 10

Reception conditions: Articles 6.2 ; 12 ; 23 ; 24 ; 25

Dublin II: Article 6

Refugee status/subsidiary protection: Articles 18 ; 27 ; 28 ; 34

7. Family member

Reception conditions

“means, in so far as the family already existed in the country of origin, the following members of the applicant’s family:

(i) the spouse or unmarried partner in a stable relationship, if the legislation of the Member State where the application has been lodged or is being examined treats unmarried couples in the same way as married couples;

(ii) the children of the couple referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and without distinction according to whether they were born in or out of wedlock or adopted;

(iii) other members of the family if they are dependent on the applicant or have undergone particularly traumatic experiences or require special medical treatment”

Dublin II

“means an asylum seeker's spouse or unmarried partner in a stable relationship, if the legislation of the Member State responsible treats unmarried couples in the same way as married couples, provided that the couple was formed in the country of origin; his unmarried minor children under the age of eighteen, irrespective of the nature of their filiation or his ward; his father, his mother or his guardian, if the asylum seeker is himself an unmarried minor under the age of eighteen; where appropriate, other persons to whom the applicant is related and who used to live in the same home in the country of origin, if one of the persons concerned is dependent on the other”

Refugee status/subsidiary protection

“means:

(i) the spouse of the applicant or his/her unmarried partner in a stable relationship, where the legislation of the Member State concerned treats unmarried couples in a way comparable to married couples;

(ii) the children of the couple referred to in point (i) or of the applicant alone, on the condition that they are unmarried and dependent and without distinction as to whether they were born in or out of wedlock or adopted;

(iii) other close relatives who lived together as part of the family unit at the time of leaving the country of origin, and who were wholly or mainly dependant on the applicant at that time”

Despite different wordings, the persons concerned are the same (however Dublin II also encompasses guardianship). The main difference is found in respect to the condition that the persons were living in the same household in the country of origin:

In the proposal on reception conditions, this condition is imposed on all the members of the family,

In Dublin II, it is applicable only to the spouse/partner and to the other members of the family,

In the proposal on refugee status/subsidiary protection, the condition is applicable only to the other close relatives.

Another difference concerns the time and place where the relationship of dependency is to be considered:

In reception conditions the dependency of the children and of the other family members is considered with respect to their situation in the Member State,

In Dublin II, the dependency link is a condition for the other family members only and is to be considered with respect to the situation in the Member State,

In refugee status/subsidiary protection the dependency is considered: as to the children, with respect to the situation in the Member State but, as to the other close relatives, with respect to the situation in the country of origin.

Finally, in reception conditions and in refugee status/subsidiary protection, the children concerned are not necessarily minors, the only condition being that they are dependent on the applicant or refugee.

It is necessary to keep in mind the different purposes of the proposals:

In reception conditions the persons concerned are together in one Member State and the aim is to grant them the necessary means for a decent living;

In Dublin II the persons concerned are scattered in several Member States and the aim is to define under which conditions it is permissible to bring them together.

NB: in the Directive on temporary protection, the provisions concerning family reunification appear in Article 15; they read:

“For the purpose of this Article, in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx, the following persons shall be considered to be part of a family:

(a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted;

(b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time”

Reception conditions: Articles 3 ; 5 ; 6 ; 7 ; 8 ; 9 ; 10 ; 13 ; 14 ; 15 ; 16 ; 17 ; 18 ; 20 ; 21 ; 22

Dublin II: Articles 4.4 ; 6 ; 7 ; 8 ; 15 ; 16

Refugee status/subsidiary protection: Articles 3 ; 6 ; 18.2 ; 21

8. Accompanying family members

Reception conditions

“means the family members of the applicant who are present in the same Member State in relation to the application for asylum”

Refugee status/subsidiary protection

Idem

As a rule, the rights granted to the applicant as to reception conditions are also granted to the accompanying family members, even if the latter are not applicants themselves.

Reception conditions: Articles 3 ; 5 ; 6 ; 7 ; 8 ; 9 ; 10 ; 13 ; 14 ; 15 ; 16 ; 17 ; 18 ; 20 ; 21 ; 22

Refugee status/subsidiary protection: Articles 3 ; 6 ; 18.2 ; 21

9. Detention

Procedures

“means confinement of an applicant for asylum by a Member State within a restricted area, such as prisons, detention centres or airport transit zones, where the applicants freedom of movement is substantially curtailed”

Reception conditions

Idem

Procedures: Article 11

Reception conditions: Articles 6.4 ; 17.2

II. ELEMENTS OF PROCEDURE

Wording

Commentary

Related provisions

1. Time limits

In the proposals on procedures, reception conditions and in Dublin II, the time limits are calculated in working days.

Several delegations would prefer the time limits to be calculated in ordinary days, weeks and months.

Procedures: Articles 23 ; 29 ; 34 ; 38.5

Reception conditions: Articles 12.2 ; 21.5

Dublin II: Articles 18.1 ; 20.1 ; 21.1

2. Withdrawal of the application for asylum

Procedures

Article 16

“1. In the event of a voluntary withdrawal of the application for asylum by the applicant, the determining authority shall enter a notice in the file discontinuing the examination of the application.

2. If an applicant for asylum has disappeared, the determining authority may discontinue the examination of the application if, without reasonable cause, the applicant has not complied with reporting duties or requests to provide information or to appear for a personal interview for at least 30 working days.

3. If the applicant places himself at the disposal of the authorities for the purpose of the examination of his application for asylum after the examination of the application has been discontinued pursuant to paragraphs 1 or 2, his request may be considered a new application for asylum”

Dublin II

Article 2.f

“means the action by which the asylum seeker terminates the procedures initiated by the submission of his asylum application; such action may be either express, i.e. where the applicant makes his wish known to the authority responsible in writing, or implicit, i.e. where the tests stipulated in the relevant provisions of Council Directive [on procedures] are satisfied or where the applicant stays without having received permission to do so on the territory of another Member State during the determination of the State responsible or during the examination of his application”

The proposal Dublin II creates a new case where the application is considered to have been implicitly withdrawn in addition to those laid down in the proposal on procedures. It is necessary to consider how these provisions interact and, in particular, the effect of Article 16.3 procedures in situations where an applicant is “taken back” by the Member State responsible.

Dublin II: Article 4.6 ; 17.1.d

3. Admissibility

Procedures

Article 18

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

(a) another Member State 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; [...]”

Dublin II

Article 20

“1. Where the State requested accepts that it should take charge, the State in which the asylum application was lodged shall communicate to the applicant a single decision concerning the inadmissibility of his application in that Member State and the transfer to the State responsible within no more than fifteen working days from the date of receipt of the reply from the State responsible”

The procedure for determining which Member State is responsible is an admissibility procedure within the meaning of the relevant provisions of the proposal for a Directive on procedures.

See first column

4. Appeals

A – Number of levels of appeal

Procedures

First instance

Article 32

“Applicants for asylum have the right to appeal against any decision taken on the admissibility or the substance of their application for asylum.

Appeal may be on both facts and points of law”

Article 36

“1. Member States may introduce a procedure that provides for automatic review by a

reviewing body of decisions by determining authorities finding cases to be in

inadmissible or manifestly unfounded.

2. If a Member State chooses to introduce such a procedure, it shall provide for reasonable

time-limits for the applicant to submit written comments.

3. In a procedure providing for automatic review, the provisions of Articles 32(2), 33 and

34(3), (4) and (5) shall apply”

Second instance

Article 38

“1. Member States shall ensure that in all cases applicants for asylum have a right to further appeal to the Appellate Court.

2. [...]

3. Member States may provide that in cases where an application has been found to be inadmissible or manifestly unfounded, the Appellate Court is able to decide whether or not to give leave to appeal and, in cases in respect of which leave to appeal is granted, to examine the decisions in an abbreviated or accelerated procedure.

[...]”

B – Suspensive effect

a) Suspensive effect “by law”

First instance

Article 33.1

Appeal shall have suspensive effect. The applicant may remain in the territory or at the border of the Member State concerned awaiting the outcome of the decision of the reviewing body”

Article 36

“1. Member States may introduce a procedure that provides for automatic review by a

reviewing body of decisions by determining authorities finding cases to be in

inadmissible or manifestly unfounded.

2. If a Member State chooses to introduce such a procedure, it shall provide for reasonable

time-limits for the applicant to submit written comments.

3. In a procedure providing for automatic review, the provisions of Articles 32(2), 33 and

34(3), (4) and (5) shall apply”

Second instance

Article 39.1

“Member States shall lay down rules by law on suspensive effect pending the ruling of the Appellate Court”

b) Suspensive effect “on request”

First instance

Article 33

“1. Appeal shall have suspensive effect. The applicant may remain in the territory or at the border of the Member State concerned awaiting the outcome of the decision of the reviewing body.

2. Member States may derogate from this rule:

(a) in cases where a country which is not a Member State is considered as a safe third country for the applicant pursuant to Articles 21 and 22;

(b) in cases that are dismissed as manifestly unfounded pursuant to Article 28;

3. If the suspensive effect of appeal is denied, the applicant shall have the right to apply to the competent authority for leave to remain on the territory or at the border of the Member State during the appeals procedure. No expulsion may take place until the competent authority has taken a decision on this request, except in cases where a country which is not a Member State is considered as a safe third country for the applicant pursuant to Articles 21 and 22.

4. [...]”

Article 36

“1. Member States may introduce a procedure that provides for automatic review by a reviewing body of decisions by determining authorities finding cases to be in inadmissible or manifestly unfounded.

2. If a Member State chooses to introduce such a procedure, it shall provide for reasonable time-limits for the applicant to submit written comments.

3. In a procedure providing for automatic review, the provisions of Articles 32(2), 33 and 34(3), (4) and (5) shall apply.”

Second instance

Article 38

“1. Member States shall ensure that in all cases applicants for asylum have a right to further appeal to the Appellate Court.

2. [...]

Article 39

1. Member States shall lay down rules by law on suspensive effect pending the ruling of the Appellate Court.

2. In all cases in which suspensive effect is denied, the applicant for asylum shall have the right to apply to the Appellate Court for leave to remain on the territory or at the border of the Member State during further appeal. No expulsion may take place until a decision has been taken by the Appellate Court on this request.

[...]”

NB: the present section is intended to provide a bird’s eye view of the relevant provisions to assist in considering all possible interactions between the various instruments.

For an analysis of these provisions, delegations are invited to refer to the room document ASILE 13/01 presented by the presidency in concertation with the Commission services.

It is necessary to check whether the provision by which suspensive effect is denied to appeals concerning the determination of the Member State responsible is sufficient to create an exception to the provisions of the proposal on procedures or if it is necessary to amend the latter in order to avoid any possible inconsistency. Indeed, pursuant to Article 33.3, the applicant whose application has been dismissed as inadmissible can apply for leave to remain on the territory while his appeal is pending where this appeal does not automatically have a suspensive effect.

III. OTHER HORIZONTAL ISSUES

Wording

Commentary

Related provisions

1. Scope (border procedures)

Procedures

Article 3.1

“This Directive shall apply to all persons who make an application for asylum at the Border 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.”

Reception conditions

Article 3.1

“1. This Directive shall apply to all third country nationals and stateless persons who make an application for asylum at the border or on the territory of a Member State and to their accompanying family members.

It shall also apply... (like in procedures)...”

Refugee status/subsidiary protection

Article 3

“This Directive shall apply to all third country nationals and stateless persons who make an application for international protection at the border or on the territory of a Member State and to their accompanying family members and to all those who receive such protection. »

The necessity and advisability of including border procedures within the scope should be examined for each instrument separately: it is conceivable that the provisions concerning reception conditions could be applied in the context of border procedures even if the said procedures are not covered by the Directive on procedures.

Moreover, one can hardly imagine that the need for protection would be evaluated differently at the border than in the territory; as a consequence, the choice to be made as to the proposals on procedures and reception conditions does not necessarily call for an identical solution concerning the Directive on refugee status/subsidiary protection.

In particular

Procedures: Articles 11.1.d ; 34.5 ; 39.4

2. Non discrimination

Procedures

Article 41

“Member States shall apply the provisions of this Directive to applicants for asylum without discrimination as to sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation or country of origin.”

Reception conditions

Article 32

“The Member States shall give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation.”

Dublin II; Refugee status/subsidiary protection

Like in reception conditions

The proposal on procedures contains a wording taken from Article 13 of the Treaty. The other proposals are posterior to the Nice European Council and contain a wording taken from the Charter of fundamental rights of the European Union.

All

3. Penalties

In all proposals save refugee status/subsidiary protection

“The Member States shall lay down the penalties for infringements of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that they are enforced. The penalties laid down must be effective, proportionate and dissuasive.”

In procedures and in reception conditions the provision goes on with:

“The Member States shall notify the Commission of these provisions by no later than the date specified in Article 44(1) and without delay of any subsequent amendments affecting them.”

NB: the sentence relating to notification to the Commission does not appear in the Directive on temporary protection.

4. Training

Procedures

Article 14

“1. Member States shall ensure that:

(a) personnel likely to come into contact with persons at the stage where they may make an application for asylum, such as border officials and immigration officers, have received the necessary basic training to recognise an application for asylum and how to proceed further in accordance with the instructions referred to in Article 4(3);

(b) personnel interviewing applicants for asylum have received the necessary basic training for this purpose;

(c) personnel interviewing persons in a particularly vulnerable position and minors have received the necessary basic training with regard to the special needs of these persons;

(d) personnel examining applications for asylum have received the necessary basic training with respect to international refugee law, national asylum law, relevant international human rights law, this Directive and the assessment of applications for asylum from persons with special needs, including unaccompanied minors;

(e) personnel responsible for orders of detention have received the necessary basic training with respect to national asylum law, relevant international human rights law, this Directive and national rules for detention.

2. Upon request of their reviewing bodies, Member States shall grant their personnel the same treatment as the personnel of determining authorities with respect to the training mentioned at paragraph 1(c), where necessary, and (d).”

Reception conditions

Article 16.5

“Persons working in accommodation centres shall be

specifically trained or have a specific background in relation to the characteristics and the specific needs of applicants for asylum and their accompanying family members. They shall be bound by the confidentiality principle.”

Article 31.1

“Member States shall take appropriate measures to ensure that authorities and other organisations implementing this Directive have received the necessary basic training with respect to the needs of both male and female applicants and their accompanying family members.”

Refugee status/subsidiary protection

Article 34.1

Like in reception conditions Article 31.1 above

The risk of legal disputes on the basis of these provisions is a cause of concern to several Member States

All

5. Staff and resources

Procedures

Article 12

“Member States shall take appropriate measures to ensure that all competent authorities are adequately provided with staff and equipment so that they can discharge their duties as laid down in this Directive.”

Reception conditions

Article 31.2

Member States shall allocate the necessary resources in connection with the national provisions enacted to implement this Directive.”

Dublin II

Article 23

“Member States shall ensure that the departments responsible for fulfilling the obligations arising under this Regulation shall have the necessary resources for carrying out their tasks and in particular for replying within the prescribed time limits to requests for information, requests to take charge and requests to take back.”

Refugee status/subsidiary protection

Like in reception conditions

Idem

All

from :	Commission Services
Subject :	Horizontal issues in the asylum proposals