|
COMMISSION OF
THE EUROPEAN COMMUNITIES |
Brussels, 18.6.2002
COM(2002)
326 final
2000/0238
(CNS)
Amended proposal for a
COUNCIL DIRECTIVE
on minimum standards
on procedures in Member States for granting and withdrawing refugee status
(presented by the Commission)
EXPLANATORY
MEMORANDUM
1. BACK
GROUND
On 20 September 2000 the
Commission adopted a draft Council Directive on minimum standards on procedures
in Member States for granting and withdrawing refugee status[1].
The proposal was sent to
the Council, the European Parliament and the Economic and Social Committee.
The Economic and Social
Committee delivered a favourable opinion on 25 and 26 April 2001 (CES
530/2001).
On 20 September 2001 the
European Parliament adopted its Opinion in plenary, approving the Commission
proposal subject to amendments and calling on the Commission to amend its
proposal accordingly. On the basis of a report presented to the plenary by Mr
Watson, chairperson of the Committee on Citizen’s Freedoms and Rights,
Justice and Home Affairs, the European Parliament has adopted 106 amendments
(A5-0291/2001)[2].
In the Council the proposal
has been the subject of negotiations in the course of 2001. During the Belgian
Presidency, the December 2001 Council adopted Conclusions with regard to the
approach taken by the future Directive[3].
The declaration of the
Laeken European Council requested the Commission to bring forward a modified
proposal.
2. AN
OVERVIEW OF THE NEW proposal
In conformity with the
Council Conclusions, this proposal sets out a different structure for asylum
procedures in Member States and amends a considerable number of the minimum
standards proposed by the Commission.
In addition, it takes over
a number of the amendments of the European Parliament, either in the recitals
or in the text of the proposal.
The following key changes
have been made:
1. Following suggestions from certain Member States
and the European Parliament, most if not all guarantees in Chapter II have been
modified, i.e. either upgraded in terms of the level of protection accorded to
applicants for asylum or qualified, to take into account specific circumstances
or exceptions occurring in practice, methods or safe guards against abuse and
certain national conditions or particularities;
2. In accordance with the Council Conclusions the
classification of procedures of former chapters III and IV has been
re-organised. Instead of a separate admissibility procedure, applications
considered as inadmissible may be processed in accelerated procedures;
3. Following suggestions from some Member States
special standards on two new types of accelerated procedures are introduced: a
procedure to examine applications lodged at the border or on the entry to the
territory and a procedure in which the need to initiate a new procedure for a
subsequent application is
assessed;
4. New cases of inadmissible applications are
introduced, whilst other cases of applications, where there is evidence of
misconduct by the applicant or abuse of the procedure, may also be processed in
accelerated procedures;
5. Obligations to set a reasonable time limit for
taking a decision under the regular procedure, to consider non-compliance with
this time limit as a negative decision against which an applicant can lodge an
appeal, as well as obligations for appeal bodies to take decisions within a
reasonable time limit have been deleted;
6. The obligation to introduce a two level appeal
system, in which a court of law is competent at least once to review a decision
is replaced, in accordance with general principles of Community law, by the
right of every applicant for asylum to have an effective remedy before a court
of law against a decision on his application, leaving the institutional
arrangements for review or appeal to national discretion.
7. Following an amendment from the European
Parliament, it is proposed that the implementation of this particular asylum
Directive should be evaluated at regular intervals not exceeding two years.
COMMENTARY ON ARTICLES
Recitals
The recitals have been altered to
accord with the changes in the text. In addition, they reflect (parts of)
amendments 2, 3, 4, 5, 8, 11, 17, 21 of the European Parliament.
CHAPTER I
Scope and definitions
Article
1
This Article defines the purpose
of the Directive.
Article 2
This Article contains definitions
of the various concepts and terms used in the provisions of the proposal.
Following the changes to the appeals chapter, the definitions of
“reviewing body”, « appellate court » and
« decision » are deleted as redundant. The reference to a
determining authority of a “judicial” character as well as the
references to the different locations for detention have been deleted as
redundant. A definition of “representative“ is added to clearly
describe the different persons or organisations representing unaccompanied
minors in the Member States. It follows the definition in the 1997 Third Pillar
Resolution on unaccompanied minors who are nationals of third countries. The
term "refugee" is defined in the modified proposal in connection with
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 international protection (COM (2001) 510 final). A
separate definitions of “final decision” is introduced to improve
the legal clarity of the text.
Article 3
The reference to the Protocol on
asylum for nationals of Member States of the European Union, annexed to the
Treaty establishing the European Community, is removed to a recital.
Article 4
In order to emphasise that Member
States are free to provide for more favourable standards on procedures, which
was asked for by the European Parliament in its amendment number 18, a new
Article has been inserted to that purpose.
CHAPTER II
Basic principles and guarantees
Article 5
Former Article 4 has mainly been
amended to take account of a number of proposals discussed at expert level in
the Council.
(1)
This paragraph ensures that
Member States do not reject or exclude an application for asylum from
examination on the sole ground that it has not been made as soon as possible.
Time limits for requesting protection as such are not prohibited, but only
insofar as they may be used to circumvent an appropriate examination of an
application.
(2)
According to the second
paragraph Member States may require that applications be made in person,
meaning that in such a case a legal adviser or other counsellor can not act on
behalf of the person.
(3)
Although applications are
usually made in person pursuant to §2, some Member States allow for
applications to be made on behalf of others. Building upon former Article
4§4, which accepted this practice, this proposal sets forth a number of
additional guarantees in this paragraph and the subsequent one. §3 provides
rules on the issue of persons who cannot make an application on their own
behalf (minors below an age to be determined by national law, cases of
unaccompanied minors in which a representative has to file the application).
(4)
This paragraph, on the other
hand, provides minimum guarantees in case Member States would like to provide
by law that an application for asylum can also be made by an applicant on
behalf of dependants (spouse, minors etc). In order to prevent any
misunderstanding or abuse, the person concerned must explicitly request that an
application be made on his/her behalf. This implies that this person can no
longer lodge a separate application. If this person lodges a separate
application, Member States may reject the application on the basis of the application
that was already made.
(5)
This paragraph is to ensure
that after an application is made in a Member State, the refugee status
determination procedure must start without delay, even if formal requirements
are to be fulfilled on the basis of national law (e.g. filling in an
application form, reporting to a specific location for identification
purposes).
(6)
This paragraph incorporates
two obligations formerly listed in different Articles: the obligation to ensure
that all authorities likely to be addressed at the border or on the territory
have the instruction to forward applications to the competent authority for
examination (former Article 4§3) and the obligation to give training to
the personnel of these authorities for that purpose (former Article 14§1(a)).
Article
6
(1)
The scope of the Article has
been clarified by adding a reference to determining authority. The obligation
concerns the right to remain pending the decision taken in first instance. The
right to remain pending review or appeal depends on the application of Articles
39 and 40.
(2)
The second paragraph refers
to a new Article that allows Member States to have a special procedure for
subsequent applications (see Articles 33 and 34). A preliminary examination
would allow Member States to examine whether or not there is reasonable cause
to “open a new asylum procedure”. From the moment it is decided not
to do so, Member States are free to remove applicants from their territory on
the basis of an earlier decision. The issue of suspensive effect of review or
appeal is dealt with in Chapter IV.
Article 7
Former Articles 6, 13§1,
14§1(d) are assembled in one Article under the heading of requirements for
the examination of applications. The standards reflect key elements of a fair
and efficient refugee determination process and are therefore grouped together.
Point (b) of Article 7§1 splits the obligation of former Article
14(1)§(d) into an obligation to obtain country of origin information and
the one to provide the personnel examining and deciding on applications with
this information. The obligation in the second paragraph has undergone little
substantive changes.
Article
8
The notion of a fair and efficient
procedure should also be reflected in standards on the formal and material
requirements for decisions themselves. These standards were previously
submerged in the Article on procedural guarantees for applicants. It is now
proposed to introduce a separate Article, more or less taking over the wording
of former Article 7(d).
Article 9
This Article sets out guarantees
for every applicant during the examination of his application for asylum by the
determining authority both under the accelerated procedure and the regular
procedure. Former Article 7 has undergone a number of changes of substance
following discussions in the Council.
Paragraph 1 has been fine-tuned as
follows.
a) The provision on information underlines that information
must be given in time to enable the applicant to both exercise his rights and
comply with the obligations as referred to in this Directive. The method is not
prescribed. As suggested by amendment 23 of the European Parliament, this could
be done by means of an information sheet; e.g. a standard document about the
procedure in a language an applicant can be reasonably expected to understand.
The point of the change is also to underline that the information need not be
given all at once, as long as it is given in time to exercise rights and to
comply with obligations.
b) It is now clarified that Member States shall at least
ensure that when the applicant is called upon to be interviewed before a
decision in first instance is taken – be this the interview described in
Articles 10 to 12 or any other interview at this stage of the procedure –
he shall be provided with the services of an interpreter.
c) Instead of providing an opportunity for the applicant to
communicate with (a representative of) the UNHCR or any other organisation
working on behalf of the UNHCR, Member States are merely obliged not to deny
the applicant such an opportunity.
d) This subparagraph introduces the concept of notification,
underlining the need for an official communication to the applicant of his or
her decision. It should be part of the set of minimum standards for first stage
harmonisation. Two obligations are imposed. Firstly, the applicant for asylum
should be notified of the decision in first instance within reasonable time
after the decision has actually been taken. Secondly, the decision should be
notified in an appropriate manner. Notification should ensure that the decision
is delivered in person. This can be done by sending it by mail to the address
the applicant has supplied or actually handing over the decision to the
applicant himself (e.g. in a reception centre where he or she is awaiting the
outcome of the procedure). To allow flexibility in implementing this
potentially far-reaching obligation, it is added that if a legal advisor or
other counsellor represents the applicant, the decision can be notified to this
advisor or counsellor instead. Representing in this respect means that the
advisor or counsellor replaces the applicant in certain formal legal acts. If
the decision can not be notified as described above, e.g. because the applicant
has disappeared, the decision should be notified in another appropriate manner.
Depending on national practice, this could be through publication in an
official journal, delivery at the last known address of the applicant or to the
legal advisor or other counsellor last known to be representing the applicant
etc. Disappearing should not prevent the promulgation of the decision.
e) As in the first proposal, the decision itself does not
require translation into a language the applicant understands. As applicants in
most if not all cases may not read or fully understand the official language of
the Member State, they should at least be informed of the purport of the
decision in a language they can reasonably be expected to understand. It has
been suggested by Member States that the text should reflect that the legal
advisor or other counsellor concerned (with the aid of an interpreter) should
in principle rather do this task. However, if an applicant is not represented,
it is necessary that Member States themselves ensure an appropriate
communication to the applicant by other means in keeping with the principle.
Member States can, for instance, attach a (standard) information leaflet to the
decision.
Paragraph
2 replaces former Article 8(3). Paragraph 3
provides that most of the guarantees are also applicable during appeal or review.
However, it is not necessary to take up in the complete list of guarantees. The
obligation under sub (a), to inform the applicant of the (entire) procedure to
be followed, has in any case already been complied with in first instance. As
for the obligation under sub (e), the national level is considered a more
appropriate level to regulate the communication of judgements of appeal bodies
to the persons concerned.
Article 10
Articles 10, 11 and 12 contain
standards relating to the personal interview, offering both guarantees to
applicants where necessary and flexibility to Member States where appropriate.
Former Article 8 is split into three different provisions outlining
respectively the personal scope of the obligation to conduct an interview, the
objective requirements for the setting of the interview and the function of the
(result of the) personal interview, i.e. the transcript, in the determination
process.
Article 10 concerns those invited
to a personal interview before a decision is taken by the determining
authority. Article
10 substitutes former Article 8§1 and §5. Depending on the stage and nature of the procedure, this
Article refers to the personal interview on the admissibility and/or the
substance or to the personal interview on the substance.
The principle that each applicant
for asylum should have the opportunity to submit his case in a personal
interview is fully maintained in §1. As in all administrative procedures,
an exchange of information is important for a decision to be taken on the basis
of the relevant facts. Asylum procedures generally differ from other
administrative procedures in the sense that applicants for asylum are not
always able to provide the administration with clear-cut, written evidence to
substantiate a need for international protection. Since in most if not all
asylum cases the determining authority must assess the credibility of
statements and/or of the applicant on the basis of all available facts, it is
imperative for a proper assessment that applicants have, as much as possible,
the opportunity to bring these forward in a personal manner, i.e. in an
interview.
The possibility of deferring
personal interviews is left to national discretion.
It is found that in practice a
personal interview is not necessary in a certain number of cases and that this
should be regulated in this Directive. The four exceptions to the principle
provided for in §2 build upon the cases described in former Article
8§5. This is considered to be
an exhaustive list of cases in which Member States are not obliged to offer the
applicant the opportunity to be interviewed. In all other cases, Member States
must ensure that the applicant has at least the opportunity of an interview.
Whether or not the applicant avails himself of this opportunity is not
important for the purposes at stake. Hence §4, which provides that the
fact that no interview has taken place, does not prevent the determining
authority from taking a decision, ensuring that the determination process can
be completed in such cases.
To uphold the principle outlined
above, a provision is needed in case the relevant facts can not be submitted in
the specific setting of a personal interview for reasons beyond the control of
the applicant. § 3 therefore provides that in the cases referred to in the
second subparagraph of §1, §2 (b), (c) and (d) the applicant must be
offered the opportunity, before a decision is taken by the determining
authority, 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.
Article 11
Article 11 merges all provisions
on the requirements for the organisation of the personal interview. §1
takes up former Article 8§4 without changing the language. §2 ensures
in general terms that personal interviews are conducted in conditions which
allow applicants to present the grounds for their applications in a
comprehensive manner, including the issue of selecting an interpreter. It
replaces former Article 8§7, which merely regulated the specific issue of
a gender sensitive approach during the interview. §2(b), last sentence,
allows Member States for economical reasons to choose an interpreter of a more
common language when it does not harm the interests of the applicant.
Article 12
This Article distinguishes between
two different situations relating to the status of the transcript of the
personal interview in the procedure.
It joins together and fine-tunes § 2 and 6 of former Article 8.
(1)
This paragraph introduces the
obligation to make a transcript of every personal interview.
(2)
As a reflection of the
principle of a fair and effective procedure this paragraph lays down the
general rule that Member States have to ensure that in all cases applicants have
timely access to the transcript of the personal interview on which the decision
is or will be based. This enables the applicant to exercise his appeal rights
properly and it enables appellate bodies, where appropriate, to verify whether
the decision is based on relevant information. It is underlined that the
obligation is no longer restricted to the regular procedure.
(3)
This provision regulates the
specific situation in some Member States where the applicant’s approval
is requested on the contents of the transcript of the personal interview. Where
requested, it must be ensured that the applicant has the opportunity to request
or propose corrections because of mistranslation or misconceptions appearing in
the transcript. In order to ensure the effectiveness of the decision making
process, a complementary provision is proposed in case the applicant refuses to
agree with the contents of the transcript of the personal interview. Member
States should in such a case be able to take a decision on the application for
asylum.
Article 13
Former Article 9 (legal
assistance) is split into two Articles.
Article 13 sets out the right to
legal assistance during the asylum procedure and Article 14 the rights of legal
advisers or other counsellors. Legal assistance is understood to be any form of
assistance or representation by a person relating to the examination of the
asylum application. It may be given by a legal adviser or other counsellor
qualified to do so in accordance with national law.
In Article 13 further conditions
are added for the applicant to qualify for free legal assistance after a
negative decision.
§1 lays down the general rule on the right to legal
assistance and representation. Every applicant must have the opportunity to
consult (instead of to contact) in an effective manner a legal adviser or other
counsellor on matters relating to their asylum applications at all stages of
the procedure, including following a negative decision.
§2 lays down the rules for free assistance after a
negative decision. Upon suggestion of some Member States new qualifying factors
are added to the availability of legal assistance free of charge after an
adverse decision by a determining authority. First, applicants will have to
request such assistance. Second, Member States may subsequently provide for an
examination of its necessity. Such an examination may include a test of
sufficient resources and a legal merits test. Where Member States apply these
tests, Community law should not go into detail as to the grounds and the procedure,
but rather merely lay down the general approach. It is therefore proposed to
merely lay down the standard adopted in Article 47 of the Charter of
Fundamental Rights of the European Union. Third, Member States are allowed to restrict legal assistance given
free of charge to those legal advisers or other counsellors who are
specifically designated by national law to assist and/or represent applicants
for asylum. This means that applicants will remain free to choose a legal
adviser or other counsellor, but can no longer invoke the right to free legal
assistance in such cases.
Article 14
This Article provides three rights of legal advisers or
other counsellors: the right to access to the file of the applicant, the right
to visit the applicant in closed areas and the right to attend a personal
interview. The rights in the first and third paragraph are new.
1)
The legal adviser or other
counsellor shall enjoy access to the information in the applicant’s file
to be able to properly represent his client’s interests in all
situations. However, this rule does not mean that such persons have access at
any time or to all information. Member States are allowed to maintain practical
arrangements in this respect. As regards the information held in the file of
the applicant, Member States will only be obliged to grant access to the
information which is liable to be examined by the authorities referred to in
Chapter IV.
Former Article 9§2 has been revised to both better
convey the underlying principle and delineate the obligations of Member States
towards granting access to legal advisers or other counsellors to applicants
for asylum in closed areas. Firstly, it is now proposed that Member States may
only control access to applicants for asylum in closed areas where it is necessary
for the security of the area or necessary to ensure an efficient examination.
The reference to quality of legal assistance is substituted with a reference to
security in these areas. In order to ensure efficient examination of asylum
applications in closed areas, including compliance with time-limits for
decision making laid down in national laws or regulations, Member States
can choose to set rules for the timing and the duration of the access to asylum
applicants by legal advisers or other counsellors. Secondly, the right is not
open to any legal adviser but restricted to the legal advisers or other
counsellors who actually assist and/represent the applicants staying in closed
areas. Lastly, following amendment 34 of the European Parliament, it is added
that the restrictions on the basis of this paragraph should be strictly
necessary for the purposes described and should never result in the effective
annulment of the right to have access to legal assistance.
2)
Contrary to former Article
9§3, this provision extends the presence of a legal adviser or counsellor
at personal interviews to interviews under the accelerated procedure. In
addition, there are some amendments in the language.
Article 15
This Article introduces the
necessary additional procedural
guarantees for unaccompanied minors following the December 1998 Vienna Action
Plan and the Scoreboard.
§1 specifies the procedural
guarantees to be provided to all unaccompanied minors, irrespective of the
nature of the procedure used to process their application. A change of
definition has occurred (i.e. the introduction of the notion of
representative), whilst a cross-reference to Article 10 (3) is necessary (the
possibility of not inviting a minor for a personal interview on the application
for asylum). The idea of the original proposal, that the representative
assisting an unaccompanied minor, could, where appropriate, discuss with the
unaccompanied minor the need to continue the procedure where other options
appear to be available, is fully maintained.
§2 focuses on the conditions
for examining and deciding on an application made by an unaccompanied minor.
Former Articles 10(2), 14 (1)c) and (d) are joined together. As a minimum
standard the personal interview must be conducted by a person who has the
necessary knowledge of the special needs of minors (sub a). This also applies
for the official who takes the decision on the application (sub b).
§3 lays down two procedural
standards in case a Member State uses medical examinations to determine the age
of unaccompanied minors. Subparagraph (a) has been pruned back to its
essentials: the obligation to inform the unaccompanied minor of the possibility
of such a medical examination. Whilst an unaccompanied minor can refuse to
undergo a medical examination, this refusal should not prevent the determining
authority from taking a decision on his application. To ensure a fair
assessment it is therefore proposed to add by way of a guarantee that a
rejection of the application can not be based solely on the refusal of the
minor. This guarantee is similar to the one relating to a refusal to approve
with the transcript of the interview in Article 12§2. It goes without
saying that the methods used for medical examinations to determine the age of
unaccompanied minors should be safe and respect human dignity. The former
Article 10(3)(a) is deleted.
Article 16
This Article lays down the
investigative standards common to the examination of all applications for
asylum. Former Article 25 has seen mainly drafting changes. However, it has
been moved from the chapter on substantive determination procedures, regular
procedures section to the chapter on basic principles and guarantees as the
examination under the accelerated procedure must, in accordance with the
Council Conclusions, entail a substantive examination in light of the Geneva
Convention. The standards are therefore also fully applicable under the
accelerated procedure.
Article 17
Article 17 sets a minimum
framework for assessing the legitimacy of cases of detention but takes a
different angle than former Article 11. Instead of exhaustively enumerating
legitimate grounds for detention, it is proposed to limit the scope of
Community law related to first stage harmonisation to laying down guarantees as
regards the exceptions to the principle that an applicant should not solely be
detained because he is an applicant for asylum. The guarantees listed in
§1 are twofold: a description in general terms of the aim of detention in
an asylum procedure and procedural guarantees. As to the aim, Member States
should base individual grounds for detention on either the need for an
efficient examination of an asylum application or the prevention of absconding
by the applicant. The procedural guarantees, on the other hand, are that the detention
is in accordance with a procedure laid down by national law or regulation that
each decision to detain a specific applicant is either objectively necessary
for an efficient examination or, in the case of a risk of absconding, based
solely on an assessment of the personal conduct of the applicant. Moreover,
initial and subsequent judicial reviews of the detention order should take
place. The courts in question should have the necessary competence to review
detention orders pursuant to this provision.
Following practice in some Member States, §2
introduces the option for Member States to detain applicants at the beginning
of the procedure in order to take a quick decision. The time limit of two weeks
serves as a basic guarantee against abuse.
It is underlined that the scope of this Article is limited
to the stage of the examination of an application for asylum by the determining
authority. It follows from the wording of §1 that national policies on
detention for other reasons (national security, penal proceedings etc) remain
untouched. Moreover, Member States are free to provide for detention on other
stages of the procedure, such as detention to safeguard the possibility of
expulsion or detention of an applicant for asylum whose application is rejected.
Article 18
In order to strengthen the mechanism for determining the
Member State responsible for examining an application for asylum in the EU, it
is proposed that Member States may detain an applicant awaiting his or her
transfer to another Member State. This provision should not be incorporated in
Article 17 since the temporal scope is different from the cases described in
that Article, for the transfer to another Member State will take place after the application is rejected as inadmissible. The proposal
for a Council Regulation establishing the criteria and mechanisms for
determining the Member State responsible for examining an asylum application
lodged in one of the Member States by a third country national (COM (2001) 447
final) stipulates that transfer shall take place within six months. In cases
where an applicant is detained, the transfer should be expedited. It is
therefore proposed to limit detention in this situation to one month.
Article 19
Articles 19 and 20 represent a significant addition to the
minimum standards in the original proposal. They are the result of extensive
discussions at expert level on the principles laid down in former Article 16.
It is considered imperative for reasons of efficiency to lay down clear and
precise standards on what to do when procedures are interrupted or broken off,
either as a result of an explicit withdrawal (Article 19) or for other reasons
(Article 20). Whilst the standards exhaustively describe procedural options
Member States have, they also spell out the guarantees necessary to ensure an
appropriate examination of applications in these cases.
This Article is about explicit withdrawal of the application, therefore withdrawal by the
applicant himself either in writing or orally, done in person or by his legal
adviser or other counsellor. Discussions at expert level showed the need of
Member States for flexibility in these cases. Therefore the Directive offers a
choice to Member States whether to discontinue the examination or to reject the
application if the applicants wants to withdraw his application. It is assumed
that a rejection on the merits of the case (i.e. a rejection because the
applicant has no well founded fear for persecution according to the Geneva
Convention) is only possible if the determining authority has enough
information to do so (in most case presumably only after the personal
interview). If the examination is discontinued after withdrawal without a
decision, a notice in the file will serve as a proof of the withdrawal (§2).
This is important in case the applicant shows up afterwards and lodges another
application or wishes to re-open his earlier application. This Article does not
specify what happens in such cases. Member States will have to examine the
application in accordance with the other standards. For this, Article 38 (right
to an effective remedy) provides a possible mechanism.
Article 20
This Article deals with the situation in which an applicant
for asylum does not explicitly withdraw his application but appears to have no
interest in a decision on this application. Admittedly, the behaviour of an
applicant can justify the conclusion that he implicitly wants to withdraw or abandon his application and this
should be acknowledged in the Directive.
§1 provides for the grounds for such an assumption of
withdrawal or abandonment of an application. In general it concerns cases of
non-compliance (with obligations or time limits, etc.) or lack of co-operation,
including the cases where a person has disappeared (without authorisation).
Like in Article 19§1, Member States are free either to take a decision to
discontinue the examination of the application or to reject it.
§2 is about what should happen if the applicant
re-appears. Regardless of the national arrangements in place to deal with such
cases, the basic guarantee shall have to be that the person concerned can not
be removed to his country of origin before it is established that he has no
well founded fear for persecution. Though this idea underlies the whole
Directive, it is of a specific interest here when an individual case is not
re-opened. If a case is re-opened, Member States may decide to take up the
examination at the stage in which the application was discontinued previously
or choose to start from the beginning. If the application has been rejected
instead of discontinued, and the rejection has become final, Member States may
apply the specific procedure for subsequent applications described in Articles
33 and 34.
Article 21
Minor drafting changes have been made in the first sentence
and the last subparagraph. The original wording of Article 17 (c) has been
changed into ‘to present its views’ to avoid the impression, that
Member States are obliged to involve the UNHCR in appeal proceedings in the same
way as the applicant and the determining authority are involved in such
procedures.
Article 22
In a recital it is acknowledged that Council Directive
95/46/EC on the protection of individuals with regard to the processing of
personal data and on the free movement of such data applies to transmissions of
data under the terms of this Directive and that this should also apply to
transmissions of data to UNHCR. Former Articles 15§1 and §4 have
therefore been deleted. The use of data by UNHCR itself is not subject to national
law but is governed by strict norms on confidentiality by the United Nations
General Assembly.
CHAPTER III
Procedures at first instance
Article 23
Article 23, indicating the choice
of procedures Member States have, is a new provision. It takes into account the
Council Conclusions which underscored that the Directive should contain an
accelerated procedure for inadmissible and manifestly unfounded applications
(former chapters III and IV section 2) and a regular procedure (former chapter
IV section 1), as well as subsequent consultations on special rules for repeat
applications and applications examined at external borders. As a result of the
focus on the accelerated procedures, the regular procedures remain the
responsibility of the Member States subject to the provisions in chapter II
(basic principles and guarantees) and chapter IV (appeal procedures).
Article 24
This Article, which consists of
elements from former Articles 23 and 29, is simplified and considerably
modified as a result of the Council Conclusions. §1 – 3 follow the
language of the Conclusions.
It is inserted in § 2 that an
extension is only valid after notice is served on the applicant or his legal
adviser or other counsellor, thereby taking over the wording of former Article
24§3, last sentence, and
taking into account the changes made to former Article 7 of the role of legal
assistance towards informing the applicant. This standard serves the legitimate
purpose of legal certainty.
§ 3 deals with the
consequence of non-compliance with the time limits. Moreover, in line with the
Council Conclusions it is added that where an applicant is at the origin of
non-compliance with the time limit, he/she cannot invoke its consequence. The
use of this provision must be reserved to cases of abuse.
§4 introduces a special
mechanism for a particular group of cases that could not but should nevertheless have been decided under the accelerated
procedure. It is recognised that time limits bear the risk, that certain
applicants are tempted to stall the examination of their case, e.g. by
withholding relevant information on purpose, in order to have their case
examined under the regular procedure, whereas the facts of their case merit an
accelerated procedure. Member States should in some of these cases have the
opportunity to consider a decision on the application as a decision taken under
the accelerated procedure, even though it is not taken within the time limits.
To that end, it should be ascertained that the applicant has a) withheld
crucial information and b) done so without reasonable cause and in bad faith. A similar provision was provided for in Article 37 of the
original proposal, though technically different for it was placed under the
appeals chapter. It is underlined that this paragraph is not applicable if the applicant could not have provided the
relevant information earlier, for instance because he only received relevant
documentation after four months. In such a case, extension of the time limit
would be more appropriate
§5 makes clear that every
rejection of an application on the proposed Dublin II Regulation is considered a decision taken under the accelerated
procedure, regardless of the time frame within which the decision was taken.
Article 25
Article 25 lists the cases in
which Member States may reject an asylum application as inadmissible. Under
category (a), inadmissibility relating to the mechanism created by the Dublin
Convention and soon to be communitarised, a reference is added to Norway and
Iceland in view of the adoption of theCouncil Decision concerning the
conclusion of an agreement between the European Community and the Republic of
Iceland and the Kingdom of Norway concerning the criteria and mechanisms for
establishing the State responsible for examining a application for asylum
lodged in a Member State or Iceland or Norway (Council Decision of 15 March 2001 (2001/258/EC) . Moreover, the
wording is changed (“has acknowledged responsibility” instead of
“is responsible”) in the spirit of amendment 56 of the European
Parliament.
Moreover, following consultations
with Member States, the categories in former Article 18 are supplemented by two
categories proposed in the Commission working document on the relationship
between safeguarding internal security and complying with international
protection obligations and instruments (COM (2001) 743 final). 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.
Further discussions on these new grounds may be necessary.
Article 26
Former Article 20 has been
slightly amended. It is laid down that the level of protection in the first
country of asylum must be in accordance with the standards laid down in
international law.
Article 27
Former Article 21 remains
unchanged, with the exception of the last subparagraph in §3. In
conformity with amendment 58 of the European Parliament it is added that Member
States shall provide reasons for each change in the designation of a country as
a safe third country. A similar amendment has been made to former Article 30
(now 30) on the designation of safe countries of origin.
Article 28
Former Article 22 has seen some
minor modifications. First, the reference to ‘a previous stay’ in
subparagraph a) is deleted as redundant. Second, the word
‘admitted’ is added to take account of the situation where a person
has never been in the third country before, but solely has a connection or
close links to the country. Third, former Article 23(5) is moved to this
Article, whilst “may” is changed in “shall”, following
amendment 63 of the European Parliament. Despite these modifications, it is
expected that further discussions are necessary.
Article 29
The former Article on manifestly
unfounded applications is split into two separate Articles: one on the
rejection of manifestly unfounded
cases (Article 29) and another on the rejection of other cases on substantive
grounds under the accelerated procedure (Article 32). The notion of
‘manifestly unfounded’ supposes that an applicant has not
established a prima facie case for refugee status; it is linked to the lack of
a legal foundation for the claim, which the applicant is pleading. The three
situations described in paragraph (a) to (c) are examples of this notion, but
the cases in Article 32 are not..
Given the new approach of Articles
29 and 32, it is no longer necessary to retain the exception in former Article
28§2(a) (internal flight alternative). The change in approach towards the
exception in former Article 28§2(b), referring to exclusion from refugee
status, flows from the Commission working document on the relationship between
safeguarding internal security and complying with international protection
obligations and instruments (COM (2001) 743 final).
Articles 30 and 31
Articles 30 and 31 (former
Articles 30 and 31) jointly lay down the proposed common approach towards safe
countries of origin. The approach remains unchanged, though the text has been
slightly reworded.
Article 32
Article 32 makes clear that an
application can only be rejected on the substance under the accelerated
procedure if it first has been established that the applicant has no well
founded fear for persecution in terms of the Geneva Convention. This approach
stems from the Council Conclusions. Certain behaviour of the applicant may
justify a rejection under the accelerated procedure, if the case is unfounded.
However, this behaviour in itself cannot result in a rejection, for
notwithstanding his behaviour the applicant might still be a refugee.
At the same time, discussions in
the Council on the nature of the accelerated procedure have been such that all
guarantees laid down in Chapter II of the proposal now also apply in the
accelerated procedure. Given the different approach to the notion of a
manifestly unfounded application and this major change in the provisions of
Chapter II, it is considered justified to increase the list with five new
grounds.
Articles 33 and 34
The Council Conclusions provide
for ‘the possibility whereby applications for asylum submitted after an
earlier application has been rejected by a member State are processed in a
special context, in order to ensure that such applications are processed
swiftly’ (II.1.10). The proposed Articles 33 and 34 leave it to the
Member States to decide whether or not to have a special procedure in case of
subsequent applications,
consisting of a preliminary examination on whether certain conditions are met
(an examination comparable to admissibility). If the conditions are fulfilled,
Member States must proceed to further examine the application in conformity
with the standards of this Directive as set out in Chapter II (in some Member
States also referred as ‘to open a new procedure’). Where Member
States do provide for this procedure, the standards laid down in these Articles
must be met. The basic idea is that Members States can derogate from
requirements for the examination of a first application (see Chapter II) during
the preliminary examination, allowing a more expeditious decision making
process, including removal (see Article 40§3), provided certain conditions
are met. Inspiration for this procedure is drawn from German practice. It is underlined
that Member States are not obliged to adopt these rules and may continue to
examine subsequent applications from former applicants like any other
application. Some Member States may perhaps prefer to do so and reject
subsequent applications from former applicants as unfounded under the
accelerated procedure, where the necessary conditions of Article 30 §2(d)
are met.
Article 35
The Council Conclusions indicated
that ‘the question whether the Directive should apply to applications for
asylum made at the border of a Member State remains open’ (II.1.6). On
the basis of subsequent consultations with Member States, a special approach to
applications made at border post is proposed. The starting point for this
approach is the primacy of national law and the possibility to preserve
national specific features of such procedures and administrative arrangements.
However, as this approach allows
Member States to “fall below” common procedural standards, it is
necessary to introduce a so-called
standstill clause. Thus, Member States who at the moment of adoption
already have in place legislation relating to border procedures can derogate
from the minimum standards of Chapter II, except from the standards explicitly
referred to in this Article, but others cannot. This exceptional regime strikes
a (delicate) balance between the needs of those Member States for maintaining a
special procedure at border posts and the protection of the basic guarantees
that all applicants for asylum should be offered throughout the EU, regardless
of the nature of the applicable practical arrangements in Member States.
Articles 36 and 37
Former Article 26, which deals
with the issue of withdrawal or annulment of refugee status within the meaning
of point (1)(d) of the first paragraph of Article 63 of the EC Treaty, is
only changed to cover the situation where a court or another body and not the
determining authority decides on withdrawal or annulment.
The terminology of
‘withdrawal or annulment’ is meant to cover ‘cessation’ of refugee
status as well.
CHAPTER IV
Appeals procedures
Article 38
The Council Conclusions have been
the main orientation for a complete restructuring of the appeals chapter.
Member States did not accept the starting point of the original proposal that
Community law on asylum procedures should provide for a three-tiers system,
meaning an appeal to a reviewing body of a nature to be defined by the Member
States and, for all applicants in Member States, access to further appeal
before a court of law. Thus, former Articles 38 to 40 have become redundant.
Moreover, the appeals chapter is streamlined and stripped to its bare
essentials. Thus, provisions on time limits for decision making by the
reviewing bodies and the consequences of non-compliance in former Article 35, the
optional procedure of automatic review in former Article 36, the references to
expeditious procedures for cases at border posts in former Articles 34(5) and
39(4) are deleted.
The modified proposal restricts
itself to developing the principle of a right to an effective remedy before a
court of law instead of the original ‘institutional’ approach. It
defines the principle in Article 34§1 and further elaborates it in the
remaining paragraphs of Article 34 and the other Articles of this chapter. The
notion of an effective remedy before a court of law is inspired by Article 47
of the Charter of Fundamental Rights of the European Union, which in turn is
based on Article 13 of the ECHR. Article 13 refers to “an effective
remedy before a national authority”. Article 47 of the Charter refers to
an independent and impartial tribunal. This should be understood as a reference
to a court of law. In Community law the protection is more extensive than under
the ECHR since it guarantees the right to an effective remedy before a court of
law. The Court of Justice enshrined this principle in its caselaw (Case 222/84-
Johnston v Chief Constable of the RUC and Case 222/86 Unectef/v Heylens).
According to the Court, the principle also applies to the Member States when
they are implementing Community law. The elements ‘independent and
impartial’ are formal requirements for an effective remedy and can be
considered to be included in the notion of ‘court’. The caselaw of
the Court of Justice distinguishes other requirements for a remedy to be
effective, such as the power to confirm or nullify a decision.
Given the choice made by the
Council not to oblige Member States to have a two level appeal system in asylum
cases and the above mentioned caselaw, it appears that where there is only one
appeal, e.g. in some countries in manifestly unfounded or inadmissible
applications, it must be before a court. In this sense, the Council
Conclusions, which included the possibility of an appeal before ‘a
quasi-judicial body’, can not be followed by the Commission.
The principle of an effective
remedy before a court does not preclude Member States from having an
administrative body responsible for review preceding an appeal to a court. This
means that an effective remedy might entail either an appeal before a court or
a review by an administrative body followed by an appeal before a court.
However, there is no need to
express this in the text itself.
§2 provides that regardless
of whether the decision is taken under the regular or the accelerated
procedure, the effective remedy should always include the possibility of an
examination by the court on both facts and points of law.
§3 assures that where
authorities in Member States refuse to
re-open the case after its discontinuation appeal is possible. Likewise,
appeal to a court should be possible against decisions regarding time limits
and their extension pursuant to Article 24. The first paragraph entails a right to an appeal against a
refusal to further examine a subsequent application in conformity with Chapter
II as referred to in the Articles 33 and 34.
Articles 39 and 40
Following the invitation in the
Council Conclusions to develop sufficient differentiation between the regular
and the accelerated procedure, it is proposed to have separate Articles on
review and appeal against decisions taken under these procedures.
The major distinction between the
accelerated and the regular appeals procedure is on the right to remain at the
territory, at port or airport transit zones or at the border of the Member
State concerned to await the outcome of review or appeal (afterwards referred
to as: suspensive effect). If a decision is taken under the regular procedure
it is presumed that a review or appeal
against the decision will have automatic suspensive effect (Article 39§1
but Member States may derogate from it only by virtue of laws or regulations in
force on the date of adoption of this Directive). While the same presumption
applies for accelerated procedures, no standstill clause is proposed and the
provisions merely require Member States to lay down in national law in which cases there is no suspensive effect
(Article 40§1). .
The other distinction relates to
the cases in which an exception can be made to the rule that, where there is no
(automatic) suspensive effect, a ruling of a court on a request to nevertheless
give suspensive effect in a particular individual case, must be awaited before
expulsion can take place. This follows from the fact that different decisions
are taken in the procedure. The decisions relating to the exceptions in Article
40§3 are always taken under accelerated procedures.
Article 41
This Article regroups and amends
former Article 34 §1 to 4 requiring Member States to lay down in advance,
for reasons of legal certainty, rules on time limits and the competencies of
the national courts or administrative bodies responsible for respectively
appeal and review in accordance with new Article 38. A second paragraph has
been added following discussions on the issue of withdrawal or abandonment
during appeal proceedings.
CHAPTER V
General and final provisions
Article 42
Former Article 41 on implementing
the Directive without discrimination is amended to take into account the
wording of Article 21 of the Charter of Fundamental Rights of the European
Union, solemnly proclaimed after the adoption of the original proposal.
Article 43
Former Article 42 on penalties
remains unchanged.
Article 44
Former Article 43 on the report of
the Commission on the application of the Directive remains unchanged, except
for some minor editorial changes and the reporting interval. Following
amendments 8 and 101 of the European Parliament it is proposed to regularly
report every two years on the application of the Directive. The Commission supports
this amendment, provided it is not a precedent for all asylum Community
legislation. It is believed that this Directive is of a particular importance
to the common European asylum system since the rules on procedures precede and
condition the exercise of rights under other asylum Community legislation, such
as 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 international protection (COM (2001)
510 final).
Articles 45
A rule is added on the
communication to the Commission of the text of the provisions of national law
which Member States adopt in the field covered by this Directive and the
deadline for transposal is modified.
Articles 46 and 47
Former Articles 45 and 46 remain
unchanged.
Annex I
Annex I is modified first of all
as a result of amendments of the European Parliament (numbers 102, 108, 110).
Secondly, the Council proposed some changes. The original Annex did not take
into account the situation in which a country has ratified the Geneva
Convention but has not yet put appropriate rules in place. If such a country
nonetheless consistently observes in practice the standards laid down in the
Geneva Convention with respect to the rights of persons in need of
international protection within the meaning of this Convention as evinced by
the UNHCR, the country should be able to be qualified as a safe third country.
As to part II of Annex I, a text
has been added to lay down explicitly in the Directive that, for those Member
States which assess on a case by case basis the safety of a third country and
not by designation on a list, there is no need to motivate the individual
decision in the general and public manner outlined this part of the Annex. A
similar provision is added to part II of Annex II.
Annex II
The changes (replacing ‘generally
observes’ by ‘consistently observes’ and ‘institutions’ by ‘structures’) are the result of amendment 111 of the European
Parliament.
2000/0238
(CNS)
Amended proposal for a
COUNCIL DIRECTIVE
On minimum standards
on procedures in Member States for granting and withdrawing refugee status
THE COUNCIL OF
THE EUROPEAN UNION,
Having regard to the Treaty
establishing the European Community, and in particular point (1)(d) of the
first paragraph of Article 63 thereof,
Having regard to the proposal from
the Commission[4],
Having regard to the opinion of
the European Parliament[5],
Having regard to the opinion of
the Economic and Social Committee[6],
Whereas:
A common policy on
asylum, including a Common European Asylum System, is a constituent part of the
European Union’s objective of establishing progressively an area of
freedom, security and justice open to those who, forced by circumstances, legitimately
seek protection in the Community.
The European
Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to
work towards establishing a Common European Asylum System, based on the full
and inclusive application of the Geneva Convention relating to the Status of
Refugees of 28 July 1951, as complemented by the New York Protocol of
31 January 1967, thus maintaining the principle of non-refoulement
and ensuring that nobody is sent back to persecution.
The Tampere
Conclusions provide that a Common European Asylum System should include in the
short term common standards for fair and efficient asylum procedures in the
Member States and in the longer term Community rules leading to a common asylum
procedure in the European Community.
Minimum standards
on procedures in Member States for granting or withdrawing refugee status are
therefore a first measure on asylum procedures without prejudice to any other
measures to be taken for the purpose of implementing Article 63(1)(d) of the
Treaty or the objective of a common asylum procedure agreed on in the Tampere
Conclusions.
The main aim of
this Directive is to introduce a minimum framework in the European Community on
procedures for the determination of refugee status, ensuring that no Member State expels or returns an applicant for
asylum in any manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.
To secure this
aim, the Council Conclusions on procedures in Member States for granting and
withdrawing refugee status of 7 December 2001 (as revised 18 December 2001)
underline the need for provisions ensuring that applicants for asylum receive
substantial guarantees with regard to the decision-making process and that
decisions are of optimum quality, without jeopardising the objective of
efficiency of procedures. Such provisions should also define the minimum
standards for a regular procedure, make it possible to adopt or retain
accelerated procedures, and allow for sufficient differentiation between these
types of procedures.
This Directive
respects the fundamental rights and observes the principles recognised in
particular by the Charter of Fundamental Rights of the European Union as
general principles of Community law. In particular this Directive seeks to
ensure full respect for human dignity, the right to asylum of applicants for
asylum and their dependants, and the protection in the event of removal,
expulsion or extradition, promoting the application of Articles 1, 18 and 19 of
the Charter.
This Directive
should be implemented without prejudice to Member States’ existing
international obligations under human rights instruments.
This Directive
should be without prejudice to the Protocol on asylum for nationals of Member
States of the European Union as annexed to the Treaty establishing the European
Community.
Asylum procedures
should not be so long and drawn out that persons in need of international
protection have to go through a long period of uncertainty before their cases
are decided, whilst persons who have no need of protection but wish to remain
on the territory of the Member States see an application for asylum as a means
of prolonging their stay by several years. At the same time, asylum procedures
should contain the necessary safeguards to ensure that those in need of
protection are correctly identified.
The minimum
standards laid down in this Directive should therefore enable Member States to
operate a quick and simple system that swiftly and correctly processes
applications for asylum in accordance with the international obligations and
constitutions of the Member States.
A quick and
simple system for procedures in Member States could, provided that the
necessary safeguards are in place, consist of a single appeal against the decision to a court.
The necessary
safeguards should require that, in the interests of a correct recognition of
those persons in need of protection as refugees within the meaning of Article
1(A) of the Geneva Convention, every applicant is to have an effective access
to procedures, the opportunity to co-operate and properly communicate with the
competent authorities so as to present the relevant facts of his case and
sufficient procedural guarantees to pursue his case at and throughout all
stages of the procedure.
On the other hand,
in the interests of a system of swift recognition of those applicants in need
of protection as refugees within the meaning of Article 1(A) of the Geneva
Convention, provision should be made for Member States to operate accelerated
procedures for processing in accordance with clear, pre-established criteria a
number of different categories of applications, including applications for which
it is not necessary to consider the substance, those that appear to be
manifestly unfounded, subsequent applications containing no fresh evidence or
arguments, and applications of persons whose right to entry to the territory of
the Member States is subject to an examination.
It is essential
that accelerated procedures contain the necessary safeguards to ensure that
earlier doubts on the part of the status determining authority can be set aside
so that those who are in need of protection can still be correctly identified.
They should therefore contain, in principle, the same minimum procedural
guarantees and requirements regarding the decision making process as regular
procedures, provided that this is necessary for the purposes of the particular procedure.
Thus, the standards regarding procedures to consider subsequent applications
containing no fresh evidence or arguments, and procedures through which a
decision is taken on the right of entry of an applicant for asylum are
proportionate to the specific purpose of such procedures.
As minimum
procedural guarantees for all applicants for asylum in all procedures should be
considered, inter alia, access to the procedure, right to stay pending a
decision by the determining authority, access to the services of an interpreter
for submitting their case if interviewed by the authorities, the opportunity to
communicate with the United Nations High Commissioner for Refugees (UNHCR) or,
with any organisation working on
its behalf, the right to appropriate notification of a decision, motivation of
that decision in fact and in law, the opportunity to consult a legal adviser or other
counsellor, and the right to be informed of their legal position at decisive
moments in the course of the procedure, in a language they can reasonably be
supposed to understand. .
In addition,
specific procedural guarantees for persons with special needs, such as
unaccompanied minors, should be laid down.
Minimum
requirements regarding the decision-making process in all procedures should be
that decisions are taken on the basis of the facts by authorities competent in
the field of asylum and refugee matters.
Decisions taken on
an application for asylum should be subject to an appeal consisting of an
examination on both facts and points of law by a court of law. . The applicant
should be entitled not to be
expelled until a court has ruled on the right to remain pending the outcome of
this appeal, except in a limited number of cases laid down in this Directive,
including for reasons of national security or public order.
Directive 95/46/EC
of the European Parliament and the Council of 24 October 1995 on the protection
of individuals with regard to the processing of personal data and on the free
movement of such data[7]
shall apply to personal data treated in application of this directive.
Directive 95/46/EC shall also apply to the transmission of data from Member
States to the UNHCR in the exercise of its mandate under the Geneva Convention.
This transmission is subject to the level of personal data protection in the
UNHCR being considered as adequate.
It is in the very
nature of minimum standards that Member States have the power to introduce or
maintain more favourable provisions for persons who ask for international
protection from a Member State, where such a request is understood to be on the
grounds that the person concerned is a refugee within the meaning of Article
1(A) of the Geneva Convention.
In this spirit,
Member States should be encouraged to apply the provisions of this Directive to
procedures for deciding on applications for kinds of protection other than that
emanating from the Geneva Convention for persons who are found not to be
refugees, taking into account in particular Council Directive …/… [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 international protection].
Member States
should provide for penalties in the event of infringement of the national
provisions adopted pursuant to this Directive.
The implementation
of this Directive should be evaluated at regular intervals not exceeding two
years.
In accordance with
the principles of subsidiarity and proportionality as set out in Article 5 of
the Treaty, the objectives of the proposed action, namely to establish minimum
standards on procedures in Member States for granting and withdrawing refugee
status cannot be sufficiently attained by the Member States. They can
therefore, by reason of the scale and effects of the action, be better achieved
by the Community. This Directive confines itself to the minimum required in
order to achieve those objectives and does not go beyond what is necessary for
that purpose,
HAS ADOPTED THIS
DIRECTIVE:
CHAPTER I
General provisions
Article 1
Purpose
The purpose of this Directive is
to establish minimum standards on procedures in Member States for granting and
withdrawing refugee status.
Article 2
Definitions
For
the purposes of this Directive:
(a) “Geneva Convention” means the Convention
relating to the status of refugees done at Geneva on 28th July 1951, as
complemented by the New York Protocol of 31 January 1967;
(b) “Application for asylum” means an application
made by a person which can be understood as a request for international
protection from a Member State under the Geneva Convention. Any application for
international protection is presumed to be an application for asylum, unless
the person concerned explicitly requests another kind of protection that can be
applied for separately;
(c) “Applicant” or “applicant for
asylum” means a person who has made an application for asylum in respect
of which a final decision has not yet been taken.
(d) A final decision is a decision in respect of which all
possible remedies under this Directive have been exhausted;
(e) “Determining authority” means any
quasi-judicial or administrative body in a Member State responsible for
examining applications for asylum and competent to take decisions at first
instance in such cases
(f) “Refugee” means a person who fulfils the
requirements of Article 1(A) of the Geneva Convention as set out in Council Directive …/ … [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 international protection] ;
(g) “Refugee Status” means the status granted by a
Member State to a person who is a refugee and is admitted as such to the
territory of that Member State;
(h) “Unaccompanied minor” means a person below the
age of eighteen who arrives on the territory of the Member States unaccompanied
by an adult responsible for him whether by law or by custom, and for as long as
he is not effectively taken into the care of such a person, or a minor who is left
unaccompanied after he has entered the territory of the Member States;
(i) «Representative » means a person or
organisation representing an unaccompanied minor as legal guardian, a national
organisation which is responsible for his/her care and well-being, or any other
appropriate representation appointed to ensure his/her best interests;
(j) “Detention” means the confinement of an
applicant for asylum by a Member State within a restricted area, where his
freedom of movement is substantially curtailed;
(k) “Withdrawal of refugee status” means the
decision by a competent authority to withdraw the refugee status of a person on
the basis of Article 1(C) of the Geneva Convention or Article 33(2) of the
Geneva Convention;
(l) “Annulment of refugee status” means the decision
by a competent authority to cancel the refugee status of a person on the
grounds that circumstances have come to light that indicate that this person
should never have been recognised as a refugee in the first place.
(m) “Remain on the territory of the Member State”
means to remain at the border, the airport or port transit zones or on the
territory of the Member State in which the application for asylum has been made
or is being examined.
Article 3
Scope
1) This Directive shall apply to all applications for asylum
made at the border, at port and airport transit zones or on the territory of
Member States.
2) This Directive shall not apply to requests for diplomatic
or territorial asylum submitted to diplomatic or consular representations of
Member States.
3) Member States may decide to apply the provisions of this
Directive to procedures for deciding on applications for kinds of protection
other than that emanating from the Geneva Convention for persons who are found
not to be refugees.
Article 4
More favourable provisions
Member States may introduce or
maintain more favourable standards on procedures for granting and withdrawing
refugee status, in so far as those standards are compatible with this
Directive.
CHAPTER II
Basic principles and guarantees
Article 5
Access to the
procedure
1) Member States shall ensure that applications for asylum are
neither rejected nor excluded from examination on the sole ground that they
have not been made as soon as possible.
2) Member States may require that applications for asylum be
made in person.
3) Member States shall ensure that each adult person has the
right to make a separate application for asylum on his own behalf.
However,
Member States may determine, by law
(a) the cases in which a minor cannot make an application on
his own behalf and in which his application is to be made by another person on
his behalf;
(b) the cases in which the application of an unaccompanied
minor has to be lodged by a
representative as provided for in Article 15(1).
4) Member States may provide by law that an application may be
made by an applicant on behalf of his dependants, including minors. In these
cases Member States shall ensure that dependant adults and dependant minors not
covered by point (a) of paragraph 3 consent to the making of the application on
their behalf, failing which the dependants shall have an opportunity to make an
application on their own behalf.
Where a
dependant files an application on his own behalf after he/she has consented to
the making of an application on his/her behalf, the subsequent application may
be rejected on the basis the application made on his/her behalf.
5) Member States shall ensure that the procedures as provided
for in this Directive shall start as soon as possible.
6) 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 and all relevant information to the competent
authority for examination;
b) the personnel of those authorities have received the
necessary training to recognise an application for asylum and to proceed
further in accordance with those instructions.
Article 6
Right to stay
pending the examination of the application
1) Applicants for asylum shall be
allowed to remain on the territory of the Member State until
such time as
the determining authority has made a decision.
2) Member States can only make an
exception where, in accordance with Articles 33 and 34,
a subsequent
application will not be further examined.
Article 7
Requirements for the
examination of applications
1) Member States shall ensure that decisions by the
determining authority on applications for asylum are taken after an appropriate
examination. To that end, Member States shall ensure that
a) applications are examined and decisions are taken
individually, objectively and impartially;
b) precise and up to date information is obtained from various
sources, including information from the United Nations High Commissioner for
Refugees (UNHCR), as to the general situation
prevailing in the countries of origin of applicants for asylum and, where
necessary, in countries through which they have transited, and that such
information is made available to the personnel responsible for examining
applications and taking decisions;
c) the personnel examining applications and taking the
decisions have the appropriate knowledge with respect to relevant standards
applicable in the field of asylum and refugee law.
2) Members States shall ensure that the authorities referred
to in Chapter IV are given access to the general information referred to in
§ 1(b), necessary for the fulfilment of their task.
Article 8
Requirements for a
decision by the determining authority
1) Member States shall ensure that decisions on applications
for asylum are given in writing.
2) They shall also ensure that if an application is rejected,
the reasons in fact and in law are stated in the decision and information on
how to challenge a negative decision is given in writing.
Article 9
Guarantees for
applicants for asylum
1) With respect to the procedures provided for in Chapter III
of this Directive, Member States shall ensure that all applicants for asylum
enjoy the following guarantees:
a) They must be informed of the procedure to be
followed and of their rights and obligations during the procedure, in a
language which they may reasonably be supposed to understand. The information
must be given in time to enable them to exercise the rights guaranteed in this
Directive and to comply with the obligations described in Articles 16 and 20
(1);
b) They must receive the services of an interpreter for
submitting their case to the competent authorities whenever reasonable. Member
States shall consider it reasonable to give these services if the determining
authority calls upon the applicant to be interviewed before a decision is taken
on the application. In this case and in other cases where the competent
authorities call upon the interpreter, the services shall be paid for out of
public funds;
c) They must not be denied the opportunity to communicate with
the UNHCR or with any other organisation working on behalf of the UNHCR on the
territory of the Member State pursuant to an agreement with such Member State;
d) They must be notified in reasonable time and in an
appropriate manner of the decision by the determining authority on their
application for asylum. If a legal adviser or other counsellor is legally
representing the applicant, Member States may choose to notify the decision to
him instead of to the applicant for asylum;
e) They must be informed of the decision by the determining
authority in a language that they may reasonably be supposed to understand when
they are not assisted or
represented by a legal adviser or other counsellor. The information provided
shall include information on how to challenge a negative decision.
2) Each adult among the dependants referred to in Article 5(4)
shall be informed in private of the possibility to provide information to the competent
authorities on the application for asylum before a decision is taken by the
determining authority.
With
respect to the procedures provided for in Chapter IV, Member States shall
ensure that all applicants for asylum shall also enjoy the guarantees listed in
paragraph 1(b), (c) and (d).
Article 10
Persons invited to a
personal interview
1) Before a decision is taken by the determining authority,
the applicant for asylum shall be given the opportunity of a personal interview
on his/her application for asylum with a person competent to conduct such an
interview under national law.
Member
States may, however, provide that minors below a certain age need not be
interviewed.
2) The personal interview may be omitted where, on the basis
of an individual assessment :
a) the determining authority is able to take a positive
decision on the basis of evidence available;
b) the competent authority is of the opinion that the
applicant is unfit or unable to be interviewed due to lasting circumstances
beyond his control. When in doubt, Member States may require a medical or
psychological certificate;
c) the competent authority cannot provide an interpreter in
accordance with point (b) of Article 11(2) within a reasonable time;
d) the competent authority is not able to conduct the interview,
because the applicant has, without good reasons, not complied with invitations
to appear.
3) In the cases referred to in second subparagraph of
paragraph 1 and in points (b), (c) and (d), of paragraph 2, the applicant must
be offered the opportunity, before a decision is taken by the determining
authority, to make comments in lieu of a personal interview, where appropriate
with the assistance of a legal adviser or other counsellor and/or, in the case
of a minor, a representative.
If the
applicant can not have an interview because the competent authority is not able
to provide an interpreter in accordance with point (b) of Article 11(2) within
a reasonable time, Member States shall provide, free of charge, assistance by a
legal adviser or other counsellor and/or, in the case of an unaccompanied
minor, a representative, and shall provide them with an opportunity, before a
decision is taken by the determining authority, to make comments on behalf of
the applicant in lieu of a personal interview.
4) The fact that no personal interview has taken place on a
ground referred to in paragraph 2 and that no comments were received pursuant
to paragraph 3, shall not prevent the determining authority from taking a
decision on an application for asylum.
The
absence of a personal interview on the grounds referred to in paragraph 2 or 3
shall not in itself adversely affect the decision of the determining authority.
Article 11
Requirements for a
personal interview
1) A personal interview shall normally take place without the
presence of family members.
2) Member States shall take appropriate steps to ensure that
personal interviews are conducted in conditions, which allow applicants to
present the grounds for their applications in a comprehensive manner. To that
end, Member States shall
a) when appointing the person who conducts the interview and
the interpreter, use their best endeavours to take account of the personal or
general circumstances surrounding the application, including the
applicant’s cultural origin or vulnerability, insofar as it is possible
to do so in advance and the competent authority is aware of such circumstances;
b) select an interpreter who is able to ensure appropriate
communication between the applicant and the person who conducts the interview.
The communication need not necessarily take place in the language preferred by
the applicant for asylum if there is another language which he may reasonably
be supposed to understand.
Article 12
Status of the
transcript of a personal interview in the procedure
1) Member States shall ensure that a transcript is made of
every personal interview.
2) Member States shall ensure that applicants have timely
access to the transcript of the personal interview on which the decision is or
will be based.
3) Member States may request the applicant’s approval on
the contents of the transcript of the personal interview.
In such
cases, Member States shall ensure that the applicant has the opportunity to
request or propose corrections of mistranslations or misconceptions appearing
in the transcript.
The
refusal of an applicant to approve the contents of the transcript of the
personal interview shall not prevent the determining authority from taking a
decision on his/her application.
Article 13
Right to legal
assistance and representation
(1)
Member States shall allow
applicants for asylum the opportunity to consult in an effective manner a legal
adviser or other counsellor on matters relating to their asylum applications at
all stages of the procedure, including following a negative decision.
(2)
In the event of a negative
decision by a determining authority, Member States shall ensure that legal
assistance, on request, be granted free of charge, subject to the provisions of
this paragraph.
Member
States may
(a) choose to only make available legal assistance free of charge to those who lack sufficient
resources and insofar as such assistance is necessary to ensure their effective
access to justice.
(b) restrict legal assistance given free of charge to legal
advisers or other counsellors specifically designated by national law to assist
and/or represent applicants for asylum.
Article 14
Rights of legal
adviser or counsellor
1)
Member States shall ensure
that a legal adviser or other counsellor who assists or represents an applicant
for asylum under the terms of national law shall enjoy access to such
information in the applicant’s file as is liable to be examined by the
authorities referred to in Chapter IV.
Member States shall ensure that the legal adviser or other
counsellor who assists or
represents an applicant for asylum has access to closed areas for the
purpose of visiting that applicant. Member States may only limit the
possibility to visit applicants in closed areas where such limitation is, by
virtue of national law or regulation, objectively necessary for the security of
the area or to ensure an efficient examination of the application, provided
that access by the legal adviser or other counsellor is not thereby severely
limited or rendered impossible.
2)
Member States shall ensure
that the legal adviser or other counsellor who assists or represents an
applicant for asylum is informed in due time of the time and place of the
applicant’s personal interview as provided for in Articles 10, 11 and 12
and is allowed to attend it.
Member States shall provide rules on the
presence of legal advisers or other counsellors at all other interviews in the
procedure, without prejudice to this Article or to Article 15(1)(b).
Article 15
Guarantees for
unaccompanied minors
1) With respect to all procedures provided for in this
Directive and without prejudice to the provisions of Articles 10 and 12, Member
States shall ensure that all unaccompanied minors enjoy the following
guarantees:
a) To be granted, as soon as possible, a representative who
shall represent and/or assist them with respect to the examination of the
application;
b) The representative must be given the opportunity to help
prepare them for the personal interview. Member States shall allow the
representative to be present at this interview and to ask questions or make
comments.
2)
Member
States shall ensure that:
a)
If
an unaccompanied minor has a personal interview on his application for asylum
as referred to in Articles 10, 11and 12, this interview is conducted by an
person who has the necessary knowledge of the special needs of minors;
b)
An
official trained with regard to the special needs of minors takes the decision
on the application of an unaccompanied minor.
3)
Member
States that use medical examinations to determine the age of unaccompanied
minors shall ensure that:
a)
Unaccompanied
minors are informed prior to the examination of their application for asylum,
and in a language which they may reasonably be supposed to understand, about
the possibility of age determination by a medical examination.
b)
The
decision to reject an application for asylum from an unaccompanied minor who
refused to undergo this medical examination shall not be based solely on this
refusal.
Article 16
Establishing the
facts in the procedure
1)
Member States shall take
appropriate measures to enable the applicant for asylum to fulfil his/her
obligation of co-operation to assist the competent authorities in establishing
the facts of his case.
An applicant shall be considered to have fulfilled this
obligation if he/she has presented all the facts of his/her case relevant for
the examination as completely as possible and supported these with all
available evidence in time for the
determining authority to take a decision.
2)
An applicant for asylum shall
be considered to have presented all the relevant facts of his/her case if
he/she has provided statements on his age, background, identity, nationality,
travel routes, identity and travel documents and the reasons for his fear for
persecution.
After the applicant has made an effort to support his/her
statements concerning the relevant facts by any available evidence and has
given a satisfactory explanation for any lack of evidence, the determining
authority must, evaluating the evidence, assess the well-foundedness of the
fear for persecution.
3)
Member States shall ensure
that the determining authority, despite a possible lack of evidence for some of the applicant’s statements, gives the
applicant the benefit of the doubt if the following conditions are
met :
a)
the applicant has made a
genuine effort to substantiate his claim;
b)
all available evidence has
been obtained and, where possible, checked;
c)
the examiner is satisfied
that the applicant’s statements are coherent and plausible and do not run
counter to generally known facts relevant to his/her case.
Article 17
Detention pending a
decision by the determining authority
1) Without prejudice to Article 18, 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 only hold an applicant for asylum in detention during the
examination of the application where such detention is, in accordance with a
procedure laid down by national law or regulation, objectively necessary for an
efficient examination of the application or where, on the basis of the personal
conduct of the applicant, there is a strong likelihood of his absconding.
2) Member States may also hold an applicant for asylum in
detention during the examination of his application if there are grounds for
believing that the restriction on his freedom of movement is necessary for a
quick decision to be made. Detention for this reason shall not exceed two
weeks.
3) Member States shall provide for the possibility of an
initial judicial review and subsequent regular judicial reviews of the order
for detention of applicants for asylum detained pursuant to paragraph 1.
Member
States shall ensure that the court called upon to review the order of detention
is competent to review whether detention is in accordance with the provisions
of this Article.
Article 18
Detention after
agreement to take charge under Council Regulation…/…
1) Member States may hold the applicant in detention to
prevent him from absconding or effecting an unauthorised stay, from the moment at which another Member State has agreed
to take charge of him or to take him back in accordance with Council Regulation
…/…[establishing the criteria and mechanisms for determining the
Member State responsible for examining an asylum application lodged in one of
the Member States by a third country national] until the moment the applicant is transferred to the other Member
State. Detention for this reason shall not exceed one month.
2) Member States shall ensure that the authority called upon
to review the order is competent to examine the legality of the detention in
accordance with the provisions of this Article.
Article 19
Procedure in case of
withdrawal of the application
1) When an applicant for asylum explicitly withdraws his
application for asylum, Member States shall ensure that the determining
authority takes a decision either to discontinue the examination or, provided
the information to do so is available, to reject the application on some other
ground in accordance with this Directive.
2) Member States may also decide that the determining
authority can decide to discontinue the examination without taking a decision.
In this case, Member States shall ensure that the determining authority shall
enter a notice in the file.
Article 20
Procedure in case of
implicit withdrawal or abandonment of the application
1) When there is reasonable cause to consider that an
applicant for asylum has implicitly withdrawn or abandoned his application for
asylum, Member States shall ensure that the determining authority takes a
decision either to discontinue the examination or, provided the information to
do so is available, to reject the application on some other ground in
accordance with this Directive.
Member
States may assume that the applicant has implicitly withdrawn or abandoned his
application for asylum when it is ascertained that:
a) He/she has not within a reasonable time complied with
reporting duties or other obligations to communicate, has failed to respond to
requests for information essential to his/her application under the terms of
Article 16 or has not appeared for an personal interview as provided for in
Articles 10, 11 and 12;
b) He/she has absconded or left without authorisation the
place where he/she lived or was held, without contacting the competent
authority within a reasonable time.
2) Member States shall ensure that the applicant who reports
once again to the competent authority after a decision to discontinue as
referred to in paragraph 1 is taken, is entitled to request that his/her case
be re-opened.
Member
States shall ensure that this person will not be removed contrary to the
principle of non-refoulement.
Member
States may allow the determining authority to take up the examination
at the stage in which the application was discontinued.
Article 21
The role of UNHCR
1)
Member States shall allow the UNHCR :
a) to have access to applicants for asylum, including those in
detention and in airport or port transit zones;
b) to have access to information on individual applications
for asylum, on the course of the procedure and on the decisions taken, provided
that the applicant for asylum agrees thereto;
c) to present its views, in the exercise of its supervisory
responsibilities under Article 35 of the Geneva Convention, to any competent
authorities regarding individual applications for asylum at any stage of the
procedure.
2) Paragraph 1 shall also apply to an organisation, which is
working on the territory of the Member State on behalf of the UNHCR pursuant to
an agreement with that Member State.
Article 22
Data protection
1) Member States shall not disclose the information regarding
individual applications for asylum to the authorities of the country of origin
of the applicant for asylum.
2) Member States shall take appropriate measures to ensure
that no information required for the purpose of examining the case of an
individual applicant shall be obtained from the authorities of his country of
origin in a manner that would result in the disclosure to those authorities of
the fact of his having applied for asylum.
CHAPTER III
Procedures at first instance
Section I
Article 23
Purpose of
accelerated procedures
1) Member States may adopt or retain an accelerated procedure
for the purpose of
(a) processing applications for asylum considered to be
inadmissible under Section II;
(b) processing applications for asylum considered to be
manifestly unfounded under Section III;
(c) processing unfounded applications under Section IV;
(d) processing subsequent applications for asylum within the
framework of the provisions set out in Section V;
(e) taking a decision on the entry of applicants for asylum
into the territory of a Member State in accordance with Section VI.
2) Member States shall consider as regular procedures all
other procedures under which applications for asylum are processed.
Article 24
Time limits for an
accelerated procedure
1) Member States shall ensure that the determining authority
takes a decision in the accelerated procedure within three months after the
application of the person concerned has been made.
2) The time limit referred to in paragraph 1 may be extended
for three months for legitimate reasons.
An
extension of the time limit in a particular case shall not be valid unless
notice is served on the applicant or on the legal adviser or other counsellor
who assists or represents him.
3) Non-compliance
with the time limits in paragraphs 1 and 2- shall result in the application for
asylum being processed under the regular procedure, unless Member States
determine that an applicant who is at the origin of non-compliance referred to
in paragraphs 1 and 2, cannot invoke this consequence of non-compliance, in
particular in case of a failure on his part to submit the information he is
reasonably expected to provide under the terms of Article 16 or to appear for
an personal interview as provided for in Articles 10, 11 and 12.
4) Member States may determine that a decision is deemed to
have been taken under the accelerated procedure in cases where it can be
established after the expiry of the time limits referred to in paragraphs 1 and
2 that the applicant has, without reasonable cause and in bad faith, withheld
information which, had it been known at that stage of the procedure, would have
resulted in a decision in the accelerated procedure.
5) This Article shall not apply once one Member State calls
upon another Member State to take charge of an applicant in accordance with
Council Regulation …/ … [establishing the criteria and
mechanisms for determining the Member State responsible for examining an asylum
application lodged in one of the Member States by a third country national].
Section
II
Article
25
Cases of
inadmissible applications
Member States may reject a
particular application for asylum as inadmissible if:
a) another Member State, or Norway or Iceland, has acknowledged
responsibility for examining the application, according to the criteria and
mechanisms for determining which Member State is responsible for considering an
application for asylum submitted by a national of a third country or stateless
person in one of the Member States;
b) a country which is not a Member State is considered as a
first country of asylum for the applicant, pursuant to Article 26;
c) a country which is not a Member State is considered as a
safe third country for the applicant, pursuant to Articles 27 and 28;
d) a country other than the country of origin of the applicant
has made an extradition request and that country is either another Member State
or a third country which can be considered a safe third country in accordance
with the principles set out in Annex I, provided that extradition to this
country is legal;
e) an indictment by an International Criminal Court has been
made.
Article 26
Application of the
concept of first country of asylum
A country can be considered to be
a first country of asylum for an applicant for asylum if he/she has been
admitted to that country as a refugee or for other reasons justifying the
granting of protection, and can still avail himself of protection in that
country that is in accordance with the relevant standards laid down in
international law.
Article 27
Designation of
countries as safe third countries
1) Member States may consider that a third country is a safe
third country for the purpose of examining applications for asylum only in
accordance with the principles set out in Annex I.
2) Member States may retain or introduce legislation that
allows for the designation by law or regulation of safe third countries. Such
laws or regulations shall be compatible with Article 28.
3) Member States which, at the date of entry into force of
this Directive, have in force laws or regulations designating countries as safe
third countries and which wish to retain these laws or regulations, shall
notify them to the Commission within six months of the adoption of this Directive
and shall notify as soon as possible any subsequent relevant amendments.
Member
States shall notify to the Commission as soon as possible any introduction of
laws or regulations designating countries as safe third countries after the
adoption of this Directive, as well as any subsequent relevant amendments.
Member
States shall give specific grounds for the designation of countries as safe
third countries and for any subsequent exclusion or addition of such a country.
Article 28
Application of the
safe third country concept
1) A country that is a safe third country in accordance with
the principles set out in Annex I can only be considered as a safe third
country for a particular applicant for asylum if, notwithstanding any list:
a) the applicant has either a connection or close links with
the country or has had an opportunity to avail himself/herself of the
protection of the authorities of that country;
b) there are grounds for considering that this particular
applicant will be admitted or re-admitted to this country and
c) there are no grounds for considering that the country is
not a safe third country in his/her particular circumstances.
2) When implementing a decision based on this Article, Member
States shall provide the applicant with a document in the language of the third
country informing the authorities of that country that the application has not
been examined in substance.
Section
III
Article
29
Cases of manifestly
unfounded applications
Member States may reject an
application for asylum as manifestly unfounded if the determining authority has
established that:
a) the applicant in submitting his application and presenting
the facts, has only raised issues that are obviously not relevant to the Geneva
Convention;
b) the applicant is from a safe country of origin within the
meaning of Articles 30 and 31 of this Directive;
c) the applicant is prima facie excluded from refugee status
by virtue of Council Directive …/ …. [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 international protection]
Article 30
Designation of
countries as safe countries of origin
1) Member States may consider a country to be a safe country
of origin for the purpose of examining applications for asylum only in
accordance with the principles set out in Annex II.
2) Member States may retain or introduce legislation that
allows for the designation by law or regulations of safe countries of origin.
Such laws or regulations shall be compatible with Article 31.
3) Member States which, at the date of entry into force of
this Directive, have in force laws or regulations designating countries as safe
countries of origin and which wish to retain these laws or regulations, shall
notify them to the Commission within six months of the adoption of this
Directive and shall notify as soon as possible any subsequent relevant
amendments.
Member
States shall notify to the Commission as soon as possible any introduction of
laws or regulations designating countries as safe countries of origin after the
adoption of this Directive, as well as any subsequent relevant amendments.
Member
States shall give specific grounds for the designation of countries as safe
countries of origin and for any subsequent exclusion or addition of a country
as a safe country of origin.
Article 31
Application of the
safe country of origin concept
A country that is a safe country
of origin in accordance with the principles set out in Annex II can only be
considered as a safe country of origin for a particular applicant for asylum if
he has the nationality of that country or, if he is a stateless person, it is
his country of former habitual residence, and if there are no grounds for
considering the country not to be a safe country of origin in his particular
circumstances.
Section
IV
Article
32
Other cases under
the accelerated procedure
Member States may process an
application for asylum under the accelerated procedure where if the determining authority has established that the applicant
has no well founded fear of being persecuted b virtue of Council Directive
…/… …. [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 international
protection] and:
a) the applicant has without good reason, misled the
authorities with respect to his identity and/or nationality, by presenting
false information or by 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/her identity or nationality, and
there are serious reasons for considering that he/she has, in bad faith,
destroyed or disposed of an identity or travel document that would have helped
establish his/her identity or nationality;
c) the applicant has made deliberately false or misleading
representations of a substantial
nature in relation to the evidence produced in support of his/her application
for asylum;
d) the applicant has submitted a subsequent application
raising no relevant new facts with respect to his/her particular circumstances
or to the situation in his country of origin;
e) the applicant has failed without reasonable cause to make
his application earlier, having had ample opportunity to do so, and is making
an application merely in order to delay or frustrate the enforcement of an
earlier or imminent decision which would result in his/her removal;
f) the applicant failed to comply with obligations referred to
in Articles 16 and 20(1) of this Directive;
g) the applicant entered the territory of the Member State
unlawfully or prolonged his/her stay unlawfully and, without good reason, has
not presented himself/herself to the authorities as soon as possible given the
circumstances of his/her entry;
h) the applicant is a danger to the security of the Member
State or constitutes a danger to the community of that Member State, having
been convicted by a final judgement of a particularly serious crime.
The
application can only be rejected if the determining authority has established
that the applicant has no well-founded fear of being persecuted by virtue of
Council Directive …/… …. [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
international protection].
Section
V
Article
33
Cases of subsequent
applications
1) Member States may adopt or retain a specific procedure
entailing a preliminary examination as referred to in paragraph 2, where a
person makes a subsequent application for asylum:
a) after his/her previous application has been withdrawn by
virtue of Articles19 or 20;
b) after a final decision has been reached on his/her previous
application.
2) A subsequent application for asylum shall first be subject
to a preliminary examination as to whether, after the withdrawal of the
previous application or after the final decision on this application has been
reached,
(a) the personal circumstances of the applicant or his/her
legal situation has changed or
(b) there is new information indicating that a decision more
favourable to the applicant could be taken or could have been taken or
(c) the decision on a former application for asylum was taken
on an incorrect or false basis or
(d) there are other reasons under national law to further
examine that subsequent application.
If one
of the reasons described under subparagraphs (a), (b), (c) and (d) applies and
the applicant concerned was, through no fault of his/her own, incapable of
asserting those reasons set forth in this paragraph in the previous procedure,
in particular by filing an appeal before a court, the application will be
further examined in conformity with Chapter II.
Article 34
Procedural rules
1. Member States shall ensure that applicants for asylum whose
application is subject to a preliminary examination pursuant to Article 33
enjoy the guarantees listed in Article 9.
2. Member States may lay down in national law rules on the
preliminary examination pursuant to Article 33. Those rules may inter
alia:
(a) oblige the applicant concerned to indicate facts and
substantiate evidence which justify a new procedure;
(b) require submission of the new information by the applicant
concerned within a time limit after which it has been obtained by him or her;
(c) permit the preliminary examination to be conducted on the
sole basis of written submissions without a personal interview.
The
conditions shall not render the access applicants for asylum to a new procedure
impossible nor result in the effective annulment or severe curtailment of such
access.
3. Member States shall ensure that
(a) the determining authority which has taken the decision on
the previous application is responsible for the preliminary examination;
(b) the applicant is informed in an appropriate manner of the
outcome of the preliminary
examination and, in case the application will not be further examined,
of the reasons and of the
possibilities of challenging it;
(c) if one of the the situations referred to in Article 33(2)
applies, the determining authority shall further examine the subsequent
application in conformity with the provisions of Chapter II as soon as
possible.
Section
VI
Article
35
Cases of border
procedures
1) Subject to the provisions of this Article, Member States
may maintain, in accordance with laws or regulations in force at the time of
adoption of this Directive, specific procedures in order to decide at the
border on the entry to their territory of applicants for asylum who have
arrived and made an application for asylum, in so far as those laws or
regulations are compatible with Articles 5, 6, 8(2), 13(1), 14(1), 14(2), 15,
17, 21 and 22.
2) This procedure may also be applicable to applicants for
asylum arriving in airport and port transit zones.
3) Member States shall ensure that the laws or regulations lay
down rules for those specific procedures as regards the examination of
applications and the decision on the application, the access to legal
assistance and representation, the procedure, duration and conditions of
detention as well as any time limits that apply.
4) Member States shall ensure that a decision to refuse entry
to the territory of a Member State for a reason arising from the application
for asylum is taken within two weeks, subject to an extension of the time limit
for no more than two weeks agreed upon by a competent judicial body in a
procedure prescribed by law.
5) Non-compliance with the time limits provided for in this
paragraph shall result in the applicant for asylum being granted entry to the
territory of the Member State in order for his application to be processed in
accordance with the other provisions of this Directive. Member States shall
ensure that applicants for asylum, who are refused entry in accordance with
this procedure, enjoy the guarantees referred to in Chapter IV.
6) The refusal of entry into the territory can not override
the decision on the application for asylum, unless it is based upon a rejection
of the application for asylum after an examination on the basis of the facts of
the case by authorities competent in the field of asylum and refugee law.
Section
VII
Article
36
Withdrawal or annulment
of refugee status
Member States shall ensure that an
examination may be started to withdraw or annul the refugee status of a
particular person when information comes to light indicating that there are
reasons to reconsider the validity of his refugee status.
Article 37
Procedural rules
1) Where in a Member State a determining authority reconsiders
a refugee’s qualification, the annulment or withdrawal of a refugee
status shall be examined under the regular procedure in accordance with the
provisions of this Directive.
Where in
a Member State a court or another body reconsiders a refugee’s
qualification, the annulment or withdrawal of a refugee status shall be
examined under the same conditions as the review of decisions taken under the
regular procedure.
2) Member States may derogate from Articles 9 to 12 when it is
technically impossible for the competent authority to comply with the
provisions of those Articles.
CHAPTER IV
Appeals procedures
Article 38
The right to an
effective remedy before a court of law
1) Member States shall ensure that applicants for asylum have
the right to an effective remedy of a decision taken on their application for
asylum before a court of law.
2) Member States shall ensure that the effective remedy
referred to in paragraph 1 includes the possibility of an examination on both
facts and points of law.
3) Member States shall ensure that:
(a) a refusal to re-open the examination of an application
after its discontinuation pursuant to Articles 19 and 20, and
(b) an extension of the time limit pursuant to Article 24 can
also be subjected to examination through appeal proceedings before a court of
law.
Article 39
Review and appeal
proceedings against decisions taken under the regular procedure
1) Member States shall allow applicants for asylum lodging an
appeal before a court of law against a decision taken in the regular procedure
to remain on the territory of the Member State concerned pending its outcome.
Member States shall also allow applicants for asylum requesting a review of a
decision taken under the regular procedure by an administrative body prior to
appeal before a court of law to remain on the territory of the Member State
concerned pending its outcome.
2) Member States may derogate from paragraph 1 by virtue of
laws or regulations in force on the date of adoption of this Directive.
3) Where national law provides that an applicant for asylum is
not allowed to remain on the territory of the Member State concerned awaiting
the outcome of his appeal or review, Member States shall ensure that the court
of law has the competence to rule whether or not such an applicant may, given
the particular circumstances of his/her case, remain on the territory of the
Member State concerned, either upon request of the applicant or acting of its
own motion.
4) No expulsion may take place until the court of law has
ruled in the case referred to in paragraph 3. Member States may provide for an
exception where it has been decided that grounds of national security or public
policy preclude the applicant for asylum from remaining on the territory of the
Member State concerned.
Article 40
Review and appeal
proceedings against decisions taken in the accelerated procedure
1) Member States shall lay down in national law those cases in
which applicants for asylum lodging an appeal against or requesting a review of
a decision taken under the accelerated procedure are not to be allowed to
remain on the territory of the Member State concerned pending its outcome.
2) In such cases, Member States shall ensure that a court of
law has the competence to rule whether or not this applicant for asylum may,
given the particular circumstances of his case, remain on the territory of the
Member State concerned, either upon request of the concerned applicant or
acting on its own motion.
3) No expulsion shall take place until the court of law has
ruled in the case referred to in paragraph 2. Member States may provide
for an exception in the following cases:
a) where it has been decided that an application for asylum is
inadmissible as referred to in Article 25;
b) where a court of law has already rejected a request from
the concerned applicant for asylum to remain on the territory of the Member
State concerned and it has been decided that, since that rejection, 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 a subsequent application will not be further examined
in conformity with Chapter II as referred to in Article 33;
d) Where it has been decided that grounds of national security
or public policy preclude the applicant for asylum from remaining at the
border, the airport or port transit zones or on the territory of the Member
State concerned.
Article 41
Time limits and
scope of the examination in review or appeal
1. Member States shall lay down:
a) reasonable time limits for giving notice of appeal and,
where applicable, for requesting a review; these time limits may be shorter for
giving notice of appeal and requests for review in respect of decisions taken
under the accelerated procedure;
b) all other necessary rules for lodging an appeal and, where
applicable, for requesting a review;
c) powers whereby the court of law is enabled to uphold or
overturn the decision of the determining authority or has both;
d) rules whereby, if the court of law overturns a decision, it
must either remit the case to the determining authority for a new decision or
must itself take a decision on the merits of the application.
2. Member States shall lay down the conditions under which it can
be assumed that an applicant has implicitly withdrawn or abandoned his review
or appeal together with the rules on the procedure to be followed in these
cases.
CHAPTER V
General and final provisions
Article 42
Non-discrimination
Member States shall implement this
Directive without discrimination on the basis of sex, race, nationality,
membership of a particular social group, health, 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 or country of origin.
Article 43
Penalties
Member States shall lay down the
penalties applicable to 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. Member States shall notify those provisions to
the Commission by no later than the date specified in Article 45 and shall
notify it without delay of any subsequent amendments affecting them.
Article 44
Report
No later than two years after the
date specified in Article 45, the Commission shall report to the European
Parliament and the Council on the application of this Directive in the Member
States and shall propose any amendments that are necessary. Member States shall
send the Commission all the information that is appropriate for drawing up this
report. After presenting the report, the Commission shall report to the
European Parliament and the Council on the application of this Directive in the
Member States at least every two years.
Article 45
Transposal
Member States shall bring into
force the laws, regulations and administrative provisions necessary to comply
with this Directive by 1 January 2005 at the latest. They shall forthwith
inform the Commission thereof.
When Member States adopt those provisions, they shall
contain a reference to this Directive or be accompanied by such a reference on
the occasion of their official publication. Member States shall determine how
such reference is to be made.
Member States shall communicate to the Commission the text
of the provisions of national law, which they adopt in the field covered by
this Directive.
Article 46
Entry into force
This Directive shall enter into
force on the twentieth day following that of its publication in the Official
Journal of the European Communities.
Article 47
Addressees
This Directive is addressed to the
Member States.
Done at Brussels,
For
the Council
The
President
ANNEX I
Principles with respect to the
Designation of safe third countries
I. Requirements for designation
A country is considered as a safe
third country if it fulfils, with respect to those foreign nationals or stateless
persons to which the designation would apply, the following two requirements:
A. it consistently observes the standards laid down in
international law for the protection of refugees;
B. it consistently observes basic standards laid down in
international human rights law from which there may be no derogation in time of
war or other public emergency threatening the life of the nation.
A. The standards laid down in international law for the
protection of refugees
1) A safe third country is any country that has ratified the
Geneva Convention, observes the provisions of that Convention with respect to
the rights of persons who are recognised and admitted as refugees and has in
place with respect to persons who wish to be recognised and admitted as
refugees an asylum procedure in accordance with the following principles:
·
The asylum procedure is
prescribed by law.
·
Decisions on applications for
asylum are taken objectively and impartially.
·
Applicants for asylum are
allowed to remain at the border or on the territory of the country as long as
the decision on their application for asylum has not been decided on.
·
Applicants for asylum have
the right to a personal interview, where necessary with the assistance of an
interpreter.
·
Applicants for asylum are not
denied the opportunity to communicate with the UNHCR or other organisations
that are working on behalf of the UNHCR pursuant to an agreement with this
country.
·
There is provision for appeal
to a higher administrative authority or to a court of law against the decision
on each application for asylum or there is an effective possibility to have the
decision reviewed.
·
The UNHCR or other
organisations working on behalf of the UNHCR pursuant to an agreement with this
country have, in general, access to asylum applicants and to the authorities to
request information regarding individual applications, the course of the
procedure and the decisions taken and, in the exercise of their supervisory
responsibilities under Article 35 of the Geneva Convention, can make representations
to these authorities regarding individual applications for asylum.
2)
Notwithstanding the above, a
country that has not ratified the Geneva Convention may still be considered a
safe third country if:
·
it consistently observes the
principle of non-refoulement as laid down in the OAU Convention governing the
specific aspects of refugee problems in Africa of 10 September 1969 and
has in place with respect to the persons who request asylum for this purpose a
procedure that is in accordance with the above‑mentioned principles; or
·
it has followed the
conclusions of the 19–22 November 1984 Cartagena Declaration of Refugees
to ensure that national laws and regulations reflect the principles and
criteria of the Geneva Convention and that a minimum standard of treatment for
refugees is established; or
·
it nonetheless consistently
observes in practice the standards laid down in the Geneva Convention with
respect to the rights of persons in need of international protection within the
meaning of this Convention and has in place with respect to the persons who
wish to be so protected a procedure which is in accordance with the above‑mentioned
principles; or
·
as evinced by the UNHCR it
complies in another manner with the need for international protection of these
persons, either through cooperation with UNHCR or other organisations which may
be working on behalf of the UNHCR or by other means deemed to be adequate for
that purpose by the UNHCR.
For the purpose of part A a safe
third country is also a country that has ratified the Geneva Convention and,
while not having (yet) put in place a procedure in accordance with the
principles under 1), nonetheless consistently observes in practice the
standards laid down in the Geneva Convention with respect to the rights of
persons in need of international protection within the meaning of this
Convention as evinced by the UNHCR.
B. The basic standards laid down in international human
rights law
1) Any country that has ratified either the 1950 European
Convention for the Protection of Human Rights and Fundamental Freedoms
(hereafter referred to as ‘European Convention’) or both the 1966
International Covenant on Civil and Political Rights (hereafter referred to as
‘International Covenant’) and the 1984 Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter
referred to as ‘Convention against Torture’), and consistently
observes the standards laid down therein with respect to the right to life,
freedom from torture and cruel, inhuman or degrading treatment, freedom from
slavery and servitude, the prohibition of retro-active criminal laws, the right
to recognition as a person before the law, freedom from being imprisoned merely
on the ground of inability to fulfil a contractual obligation and the right to
freedom of thought, conscience and religion.
2) Observance of the standards for the purpose of designating
a country as a safe third country also includes provision by that country of
effective remedies that guarantee these foreign nationals or stateless persons
from being removed in breach of Article 3 of the European Convention or Article
7 of the International Covenant and Article 3 of the Convention against
Torture.
II. Procedure for designation
Every general assessment of the observance of these
standards for the purpose of designating a country as a safe third country in
general or with respect to certain foreign nationals or stateless persons in
particular must be based on a range of sources of information, which may
include reports from diplomatic missions, international and non‑governmental
organisations and press reports. Member States may in particular take into
consideration information from the UNHCR.
The report of the general
assessment shall be in the public domain.
Where Member States solely assess
in an individual decision the safety of a third country with respect to a
particular applicant, such a decision need not be motivated on the basis of a
general assessment as provided above.
ANNEX II
Principles with respect to the
Designation of safe countries of origin
I. Requirements for designation
A country is considered as a safe
country of origin if it consistently observes the basic standards laid down in
international human rights law from which there may be no derogation in time of
war or other public emergency threatening the life of the nation, and it:
A. has democratic structures and the following rights are
consistently observed there: the right
to freedom of thought, conscience and religion, the right to freedom of
expression, the right to freedom of peaceful assembly, the right to freedom of
associations with others, including the right to form and join trade unions and
the right to take part in government directly or through freely chosen
representatives;
B. allows monitoring by international organisations and NGOs
of its observance of human rights;
C. is governed by the rule of law and the following rights are
consistently observed there: the right to liberty and security of person, the
right to recognition as a person before the law and equality before the law;
D. provides for generally effective remedies against
violations of these civil and political rights and, where necessary, for
extraordinary remedies;
E. is a stable country.
II. Procedure for designation
Every general assessment of the
observance of these standards for the purpose of a designating a country as a
safe country of origin must be based on a range of sources of information,
which may include reports from diplomatic missions, international and non‑governmental
organisations and press reports. Member States may in particular take into
consideration information from the UNHCR.
The report of the general
assessment shall be in the public domain.
Where Member States solely assess
in an individual decision the safety of a country of origin with respect to a
particular applicant, such a decision need not be motivated on the basis of a
general assessment as provided above.
[1] COM (2000) 578 final, OJ C62 E, 27.02.2001, 231
[2] OJ C 77E, 28.03.2002, 94
[3] (15107/1/REV 1). Press release 14581/01 (Presse 444), 2396th Council Meeting Justice, Home Affairs and Civil Protection, Brussel, 6 and 7 December 2001
[4] OJ C […], […], p. […].
[5] OJ C […], […], p. […].
[6] OJ C […], […], p. […].
[7] OJ L 281, 23.11.1995, p.31