ANNEX I
II
DRAFT
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,
Having regard to the opinion of the European
Parliament,
Having regard to the opinion of the Economic and
Social Committee,
Whereas:
(1) A
common policy on asylum, including a Common European Asylum System, is a
constituent part of the European Unions objective of establishing
progressively an area of freedom, security and justice open to those who,
forced by circumstances, legitimately seek protection in the Community.
(2) 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 of 28 July 1951
relating to the status of refugees, as supplemented by the New York Protocol of
31 January 1967 ("Geneva Convention"), thus affirming the
principle of non-refoulement and ensuring that nobody is sent back to
persecution.
(3) 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.
(4) The
present minimum standards on procedures in Member States for granting or
withdrawing refugee status are therefore a first measure on asylum procedures.
(5) The
main objective of this Directive is to introduce a minimum framework in the
European Community on procedures for granting and withdrawing refugee status.
(6) The
approximation of rules on the procedures for granting and withdrawing refugee
status should help to limit the secondary movements of applicants for asylum
between Member States, where such movement would be caused by differences in
legal frameworks.
(7) It
is in the very nature of minimum standards that Member States should have the
power to introduce or maintain more favourable provisions for third country
nationals or stateless 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.
(8) This
Directive respects the fundamental rights and observes the principles
recognised in particular by the Charter of Fundamental Rights of the European
Union.
(9) With
respect to the treatment of persons falling within the scope of this Directive,
Member States are bound by obligations under instruments of international law
to which they are party and which prohibit discrimination.
(10) It
is essential that decisions on all applications for asylum be taken on the
basis of the facts and, at the first instance, by authorities whose personnel
has the appropriate knowledge or receives the necessary training in the field
of asylum and refugee matters.
(11) It is in the interest of both Member States and applicants for
asylum to decide as soon as possible on applications for asylum. The
organisation of the processing of applications for asylum is left to the
discretion of Member States, so that they may, in accordance with their
national needs, prioritise or accelerate the processing of any application,
taking into account the standards in this Directive.
(12) The
notion of public order may cover a conviction for committing a serious crime.
(13) In
the interests of a correct recognition of those persons in need of protection
as refugees within the meaning of Article 1 of the Geneva Convention, every
applicant should, subject to certain exceptions, 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/her case and
sufficient procedural guarantees to pursue his/her case at and throughout all
stages of the procedure. Moreover, the procedure in which an application for
asylum is examined should normally provide an applicant at least with a right
to stay pending a decision by the determining authority, access to the services
of an interpreter for submitting his/her case if interviewed by the
authorities, the opportunity to communicate with a representative of the United
Nations High Commissioner for Refugees (UNHCR) or with any organisation working
on its behalf, the right to appropriate notification of a decision, a
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 his/her legal position at decisive
moments in the course of the procedure, in a language he/she can reasonably be
supposed to understand.
(14) In
addition, specific procedural guarantees for unaccompanied minors should be
laid down, because of their
vulnerability. In this context, the best interests of the child should be a
primary consideration of Member States.
(15) Where
an applicant makes a subsequent application without presenting new evidence or
arguments, it would be disproportionate to oblige Member States to carry out a
new full examination procedure. In these cases, Member States should have a
choice amongst procedures involving exceptions to the guarantees normally
enjoyed by the applicant.
(16) Many
asylum applications are made at the border or in a transit zone of a Member
State prior to a decision on the entry of the applicant. Member States should
be able to keep existing procedures adapted to the specific situation of these
applicants at the border. Common rules should be defined on possible exceptions
made in these circumstances to the guarantees normally enjoyed by applicants. Border procedures should mainly apply to those applicants who do not
meet the conditions for entry into the territory of the Member States.
(17) A
key consideration for the well-foundedness of an asylum application is the
safety of the applicant in his/her country of origin. Where a third country can
be regarded as a safe country of origin, Member States should be able to
designate it as safe and presume its safety for a particular applicant, unless
he/she presents serious counter-indications.
(18) Given
the level of harmonisation achieved on the qualification of third country
nationals and stateless persons as refugees, common criteria for designating
third countries as safe countries of origin should be established.
(19) Where
the Council has satisfied itself that those criteria are met in relation to a
particular country of origin, and has consequently included it in the minimum
common list of safe countries of origin to be adopted pursuant to this
Directive, Member States should be obliged to consider applications of persons
with the nationality of that country, or of stateless persons formerly
habitually resident in that country, on the basis of the rebuttable presumption
of the safety of that country. In the light of the political importance of the
designation of safe countries of origin, in particular in view of the
implications of an assessment of the human rights situation in a country of
origin and its implications for the policies of the European Union in the field
of external relations, the Council should take any decisions on the
establishment or amendment of the list, after consultation of the European
Parliament.
(20) It results
from the status of Bulgaria and Romania as candidate countries for the accession
to the European Union and the progress made by these countries for membership
that they should be regarded as constituting safe countries of origin for the
purposes of this Directive until the date of their accession to the European
Union.
(21) The
designation of a third country as a safe country of origin for the purposes of
this Directive cannot establish an absolute guarantee of safety for nationals
of that country. By its very
nature, the assessment underlying the designation can only take into account the general civil, legal and political circumstances in that country
and whether actors of persecution, torture or inhuman or degrading treatment or
punishment are subject to sanction in practice when found liable in the country
concerned. For this reason, it is important that, where an applicant shows that
there are serious reasons to consider the country not to be safe in his/her
particular circumstances, the designation of the country as safe can no longer
be considered relevant for him/her.
(22) Member
States should examine all applications on the substance, i.e. assess whether
the applicant in question qualifies as a refugee in accordance with Council
Directive 2004/83/EC on minimum standards for the qualification and status of
third country nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the protection
granted, except where this
Directive provides otherwise, in particular where it can be reasonably assumed
that another country would do the examination or provide sufficient protection.
Especially, Member States should not be obliged to assess the substance of an
asylum application where a first country of asylum has granted the applicant
refugee status or otherwise sufficient protection and the applicant will be
readmitted to this country.
(23) Member
States should also not be obliged to assess the substance of an asylum
application where the applicant, due to a connection to a third country as
defined by national law, can reasonably be expected to seek protection in that
third country. Member States should only proceed on this basis where this
particular applicant would be safe in the third country concerned. In the
interest of avoiding secondary movements of applicants, common principles for
the consideration or designation by Member States of third countries as safe
should be established.
(24) Furthermore,
with respect to certain European third countries, which observe particularly
high human rights and refugee protection standards, Member States should be
allowed to carry out no or no full examination of asylum applications regarding
applicants who enter their territory from such European third countries. Given
the potential consequences for the applicant of a restricted or omitted
examination, this application of the safe third country concept should be
restricted to cases involving third countries with respect to which the Council
has satisfied itself that the high standards for the safety of the third
country concerned, as set out in this Directive, are fulfilled. The Council
should take decisions in this matter after consultation of the European
Parliament.
(25) It
follows from the nature of the common standards concerning both safe third
country concepts as set out in this Directive, that the practical effect of the
concepts depends on whether the third country in question permits the applicant
in question to enter its territory.
(26) With
respect to the withdrawal of refugee status, Member States shall ensure that
the persons benefiting from the refugee status are duly informed of a possible
reconsideration of their status and have the opportunity to submit their point
of view before the authorities can take a motivated decision to withdraw their
status. However, these guarantees can be dispensed with where the reasons for
the cessation of the refugee status is not related to a change of the
conditions on which the recognition was based.
(27) It reflects a basic principle of Community law that the decisions
taken on an application for asylum and on the withdrawal of a refugee status
must be subject to an effective remedy before a court or tribunal in the
meaning of Article 234 of the Treaty establishing the European
Community. The effectiveness of the remedy, also with regard to the examination
of the relevant facts, depends on the administrative and judicial system of
each Member State seen as a whole.
(28) In accordance with
Article 64 of the Treaty establishing the European Community, this
Directive does not affect the exercise of the responsibilities incumbent upon
Member States with regard to the maintenance of law and order and the
safeguarding of internal security.
(29) This Directive does not deal with procedures governed by Council
Regulation (EC) No 343/2003 of 18 February 2003 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.
(30) The
implementation of this Directive should be evaluated at regular intervals not
exceeding two years.
(31) 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.
(32) In accordance with Article 3
of the Protocol on the position of the United Kingdom and Ireland, annexed to
the Treaty on European Union and to the Treaty establishing the European
Community, the United Kingdom has notified, by letter of
24 January 2001, its wish to take part in the adoption and
application of this Directive.
(33) In accordance with Article 3
of the Protocol on the position of the United Kingdom and Ireland, annexed to
the Treaty on European Union and to the Treaty establishing the European
Community, Ireland has notified, by letter of 14 February 2001, its
wish to take part in the adoption and application of this Directive.
(34) In accordance with Articles 1
and 2 of the Protocol on the position of Denmark, annexed to the Treaty on
European Union and to the Treaty establishing the European Community, Denmark
is not taking part in the adoption of this Directive and is not bound by it or
subject to its application,
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 of 28 July 1951 relating to the status of
refugees, as amended by the New York Protocol of 31 January 1967;
(b)
"Application
for asylum" means an application made by a third country national or
stateless 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 third country national or stateless
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 whether the third country national or stateless person be granted
refugee status by virtue of Council Directive 2004/83/EC and which is no longer
subject to a remedy within the framework of Chapter V irrespective of
whether such remedy has the effect of allowing applicants to remain in the
Member States concerned pending its outcome, subject to Annex III;
(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, subject to Annex I;
(f)
"Refugee"
means a third country national or a stateless person who fulfils the
requirements of Article 1 of the Geneva Convention as set out in Council
Directive 2004/83/EC;
(g)
"Refugee
Status" means the recognition by a Member State of a third country
national or stateless person as a refugee;
(h)
"Unaccompanied
minor" means a person below the age of eighteen who arrives in the
territory of the Member States unaccompanied by an adult responsible for
him/her whether by law or by custom, and for as long as he/she is not
effectively taken into the care of such a person; it includes a minor who is
left unaccompanied after he/she has entered the territory of the Member States;
(i)
"Representative"
means a person acting on behalf of an organisation representing an
unaccompanied minor as legal guardian, a person acting on behalf of a national
organisation which is responsible for the care and well-being of minors, or any
other appropriate representation appointed to ensure his/her best interests;
(j)
(deleted)
(k)
"Withdrawal
of refugee status" means the decision by a competent authority to revoke,
end or refuse to renew the refugee status of a person in accordance with
Council Directive 2004/83/EC;
(l)
(deleted)
(m)
"Remain in
the Member State" means to remain in the territory, including at the
border or in transit zones 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 in the territory, including at the border, or in the transit zones of the
Member States and to the
withdrawal of refugee status.
2. This Directive
shall not apply in cases of requests for diplomatic or territorial asylum
submitted to representations of Member States.
3. Where
Member States employ or introduce a procedure in which asylum applications are
examined both as applications on the basis of the Geneva Convention, and as
applications for other kinds of international protection as defined by
Article 15 of Council Directive 2004/83/EC, they
shall apply this Directive throughout their procedure.
4. Moreover,
Member States may decide to apply this Directive in procedures for deciding on
applications for any kind of international protection.
Article 3A
Responsible authorities
1. Member
States shall designate for all procedures a determining authority which will be
responsible for an appropriate examination of the applications in accordance
with the provisions of this Directive, in particular Articles 7(2) and 8.
In
accordance with Article 4(4) of Council Regulation
(EC) No 343/2003, applications for asylum made in a Member State to the
authorities of another Member State carrying out immigration controls there
shall be dealt with by the Member State on whose territory the application is
made.
2. However,
Member States may provide that another authority is responsible in the
following cases for the purpose of:
(a) processing
cases in which it is considered to transfer the applicant to another State
according to the rules establishing criteria and mechanisms for determining
which state is responsible for considering an application for asylum, until
such time as the transfer takes place or the requested State has refused to
take charge or take over the applicant;
(b) taking
a decision on the application in the light of national security provisions,
provided a determining authority is consulted prior to this decision as to
whether the applicant qualifies as a refugee by virtue of Council Directive
2004/83/EC;
(c) conducting
a preliminary examination pursuant to Article 33, provided this authority
has access to the applicant's file regarding the previous application;
(d) processing
cases in the framework of the procedures provided for in Article 35(1);
(e) refusing
permission to enter in the framework of the procedure provided for in
Article 35(2) to (5), subject to the conditions and as set out in these
paragraphs;
(f) establishing
that an applicant is seeking to enter or has entered in the Member State from a
safe third country pursuant to Article 35A, subject to the conditions and
as set out in this Article.
3. Member
States shall ensure that where authorities are designated in accordance with
paragraph 2, the personnel of such authorities have the appropriate
knowledge or receive the necessary training to fulfil their obligations when
implementing this Directive.
Article 4
More favourable provisions
Member States may introduce or maintain more
favourable standards on procedures for granting and withdrawing refugee status,
insofar as those standards are compatible with this Directive.
CHAPTER II
Basic principles
and guarantees
Article 5
Access to the procedure
1. Member States may
require that applications for asylum be made in person and/or at a designated
place.
2. Member States
shall ensure that each adult having legal capacity has the right to make an application
for asylum on his/her own behalf.
3. Member States may provide that an application
may be made by an applicant on behalf of his/her dependants. In such cases
Member States shall ensure that dependant adults consent to the lodging of the
application on their behalf, failing which they shall have an opportunity to
make an application on their own behalf.
Consent
shall be requested at the time the application is lodged or, at the latest,
when the personal interview with the dependant adult is conducted.
4. Member States may determine, in national
legislation
(a)
the cases in which
a minor can make an application on his/her own 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)(a);
(c) the
cases in which the lodging of an application for asylum is deemed to constitute
also the lodging of an application for asylum for any unmarried minor.
5. Member States
shall ensure that authorities likely to be addressed by someone who wishes to
make an asylum application are able to advise that person how and where he/she
may make such an application and/or may require these authorities to forward
the application to the competent authority.
Article 6
Right to remain in the Member State pending the
examination of the application
1. Applicants shall
be allowed to remain in the Member State, for the sole purpose of the
procedure, until such time as the determining authority has made a decision in
accordance with the procedures at first instance set out in Chapter III.
This right to remain shall not constitute an entitlement to a residence permit.
2. Member States can
make an exception only where, in accordance with Articles 33 and 34, a
subsequent application will not be further examined or where they will
surrender or extradite, as appropriate, a person either to another Member State
pursuant to obligations in accordance with a European Arrest Warrant or
otherwise, or to a third country, or to international criminal courts or tribunals.
Article 7
Requirements for the examination of
applications
1. Without prejudice
to Article 23(4)(i), 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
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, such as 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 knowledge with respect to
relevant standards applicable in the field of asylum and refugee law.
3. The authorities
referred to in Chapter V shall, through the determining authority or the
applicant or otherwise, have access to the general information referred to in
paragraph 2(b), necessary for the fulfilment of their task.
4. Member States may
provide for rules concerning the translation of documents relevant for the
examination of applications.
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. Member States
shall also ensure that, where 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.
Member States need not state the
reasons for not granting the refugee status in the decision where the applicant
is granted a status, which offers the same rights and benefits under national
and Community law as the refugee status by virtue of Council Directive
2004/83/EC. In
these cases, Member States shall ensure that the reasons for not granting the
refugee status are stated in the applicant's file, and that the applicant has,
upon request, access to his/her file.
Moreover, Member States need not
provide information on how to challenge a negative decision in writing in
conjunction with that decision where the applicant has been informed at an
earlier stage either in writing or by electronic means accessible to the
applicant of how to challenge such a decision.
3. For the purposes
of Article 5(3), and whenever the application is based on the same
grounds, Member States may take one single decision, covering all dependants.
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 in a language which they may reasonably be supposed to
understand of the procedure to be followed and of their rights and obligations
during the procedure and the possible consequences of not complying with their
obligations and not co-operating with the authorities. They must be informed
about the time-frame, as well as the means at their disposal to fulfil the
obligation to submit the elements as referred to in Article 4 of Council Directive
2004/83/EC. 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 Article 9A;
(b) they must receive the
services of an interpreter for submitting their case to the competent authorities
whenever necessary. Member States shall consider it necessary to give these
services at least when the determining authority calls upon the applicant to be
interviewed as referred to in Articles 10 and 11 and appropriate
communication cannot be ensured without such services. In this case and in
other cases where the competent authorities call upon the applicant, 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 in the territory of the Member State pursuant to
an agreement with that Member State;
(d) they must be given
notice in reasonable time 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 give notice of the
decision to him/her instead of to the applicant for asylum;
(e) they must be informed
about the result 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 and when free legal
assistance is not available. The information provided shall include information
on how to challenge a negative decision in accordance with the provisions of
Article 8(2).
2. With respect to
the procedures provided for in Chapter V, Member States shall ensure that
all applicants for asylum enjoy equivalent guarantees to the ones listed in
paragraph 1(b), (c) and (d).
Article 9A
Obligations of
the applicants for asylum
1. Member States may
impose upon applicants for asylum obligations to cooperate with the competent
authorities insofar as these obligations are necessary for the processing of
the application.
2. In
particular, Member States may provide that
(a) applicants
for asylum are required to report to the competent authorities or to appear
there in person, either without delay or at a specified time;
(b) applicants
for asylum have to hand over documents in their possession relevant to the
examination of the application, such as their passports; and
(c) applicants
for asylum are required to inform the competent authorities of their current
place of residence or address and inform them of change of this place of
residence or address as soon as possible. Member States may provide that the
applicant shall have to accept any communication at the most recent place of
residence or address which he/she indicated accordingly;
(d) the
competent authorities may search the applicant and the items he/she carries
with him/her;
(e) the
competent authorities may take a photograph of the applicant; and
(f) the
competent authorities may record the applicant's oral statements, provided
he/she has previously been informed thereof.
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 under national law to conduct such an interview.
Member
States may also give the opportunity of a personal interview to each adult
among the dependants referred to in Article 5(3).
Member States may determine in national legislation the cases in which a minor shall
be given the opportunity of a personal interview.
2. The personal
interview may be omitted where :
(a) the determining
authority is able to take a positive decision on the basis of evidence
available; or
(b) the competent authority
has already had a meeting with the applicant for the purpose of assisting
him/her with filling his/her application and submitting the essential
information regarding the application, in terms of Article 4(2) of Council
Directive 2004/83/EC; or
(c) the determining
authority, on the basis of a complete examination of information provided by
the applicant, considers the application as unfounded in the cases where the
circumstances mentioned in Article 23(4)(a), (c), (g), (h) and (j) apply.
3. The personal
interview may also be omitted, where it is not reasonably practicable, in
particular where the competent authority is of the opinion that the applicant
is unfit or unable to be interviewed owing to enduring circumstances beyond
his/her control. When in doubt, Member States may require a medical or
psychological certificate.
Where
the Member State does not provide the opportunity for a personal interview
pursuant to this paragraph, or where applicable, to the dependant, reasonable
efforts must be made to allow the applicant or the dependant to submit further
information.
4. The absence of a
personal interview in accordance with this Article shall not prevent the
determining authority from taking a decision on an application for asylum.
5. The absence of a
personal interview pursuant to paragraph 2(b) and (c) and
paragraph 3 shall not adversely affect the decision of the determining
authority.
6. Irrespective of
Article 20 (1), Member States, when deciding on the application for
asylum, may take into account the fact that the applicant failed to appear for
the personal interview, unless he or she had good reasons for the failure to
appear.
Article 11
Requirements for a personal interview
1. A personal
interview shall normally take place without the presence of family members
unless the determining authority considers it necessary for an appropriate
examination to have other family members present.
2. A personal
interview must take place under conditions which ensure appropriate
confidentiality.
3. 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) ensure that the person
who conducts the interview is sufficiently competent to take account of the
personal or general circumstances surrounding the application, including the
applicants cultural origin or vulnerability, insofar as it is possible to do
so,and
(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/she may reasonably be supposed to understand and in which
he/she is able to communicate in.
4. Member States may
provide for rules concerning the presence of third parties at the personal
interview.
5. This
Article is also applicable to the meeting referred to in Article 10(2)(b).
Article 12
Status of the report of a personal
interview in the procedure
1. Member States
shall ensure that a written report is made of every personal interview, containing
at least the essential information regarding the application, as presented by
the applicant, in terms of Article 4(2) of Council Directive 2004/83/EC.
2. Member States
shall ensure that applicants have timely access to the report of the personal
interview. Where access is only granted after the decision of the determining
authority, Member States shall ensure that access is possible as soon as
necessary for allowing an appeal to be prepared and lodged in due time.
3. Member states may
request the applicant's approval on the contents of the report of the personal
interview.
Where an applicant
refuses to approve the contents of the report, the reasons for this refusal
shall be entered into the applicant's file.
The refusal of an
applicant to approve the contents of the report of the personal interview shall
not prevent the determining authority from taking a decision on his/her
application.
4. This
Article is also applicable to the meeting referred to in Article 10(2)(b).
Article 13
Right to legal assistance and
representation
1. Member States
shall allow applicants for asylum at their own cost the opportunity to consult
in an effective manner a legal adviser or other counsellor, admitted or
permitted as such under national law, on matters relating to their asylum
applications.
2. In the event of a
negative decision by a determining authority, Member States shall ensure that
free legal assistance and/or representation be granted on request subject to
the provisions of paragraph 3.
3. Member States may
provide in their national legislation that free legal assistance and/or
representation be granted :
(a) only for the procedures
before a court or tribunal in accordance with Chapter V and not to any
onward appeals or reviews provided for under national law, including a
rehearing of an appeal following an onward appeal or review; and/or
(b) only to those who lack
sufficient resources; and/or
(c) only to legal advisers
or other counsellors specifically designated by national law to assist and/or
represent applicants for asylum; and/or
(d) only if the appeal or
review is likely to succeed.
Member
States shall ensure that legal assistance and/or representation granted under
subparagraph (d) is not arbitrarily restricted.
4. Rules concerning
the modalities for filing and processing such requests may be provided by
Member States.
5. Moreover, Member
States may
(a) impose monetary and/or
time limits on the provision of free legal assistance and /or representation
provided that such limits do not arbitrarily restrict access to legal
assistance and/or representation.
(b) provide that, as
regards fees and other costs, the treatment shall not be more favourable than
the treatment generally accorded to their nationals in matters pertaining to
legal assistance.
6. Member States may
demand to be reimbursed wholly or partially for any expenses granted if and
when the applicant's financial situation has improved considerably or if the
decision to grant such benefits was taken on the basis of false information
supplied by the applicant.
Article 14
Scope of legal assistance and
representation
1. Member States
shall ensure that a legal adviser or other counsellor admitted or permitted as
such under national law who assists or represents an applicant for asylum under
the terms of national law shall enjoy access to such information in the
applicants file as is liable to be examined by the authorities referred to in
Chapter V, insofar as the information is relevant to the examination of
the application.
Member States may
make an exception where disclosure of information or sources would jeopardise
national security, the security of the organisations or persons providing the
information or the security of the person(s) to whom the information relates or
where the investigative interests relating to the examination of applications
of asylum by the competent authorities of the Member States or the
international relations of the Member States would be compromised. In these
cases, access to the information or sources in question must be available to
the authorities referred to in Chapter V, except where such access is
precluded in national security cases.
2. Member
States shall ensure that the legal adviser or other counsellor who assists
or represents an applicant for
asylum has access to closed areas, such as detention facilities and transit
zones, for the purpose of consulting that applicant. Member States may only
limit the possibility to visit applicants in closed areas where such limitation
is, by virtue of national legislation, objectively necessary for the security,
public order or administrative management 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.
3. Member
States may provide rules covering the presence of legal advisers or other
counsellors at all interviews in the procedure, without prejudice to this
Article or to Article 15(1)(b).
4. Member States may
provide that the applicant is allowed to bring with him/her to the personal
interview the legal adviser or other counsellor, admitted as such under
national law.
Member
States may require the presence of the applicant at the personal interview even
if he/she is represented under the terms of national law by such a legal
adviser or counsellor and may require the applicant to respond in person to the
questions asked.
The
absence of the legal adviser or other counsellor shall not prevent the
competent authority from conducting the personal interview with the applicant.
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 :
(a) as soon as possible
take measures to ensure that a representative represents and/or assists the
unaccompanied minor with respect to the examination of the application. This
representative can also be the representative referred to in Article 19 of
Council Directive 2003/9/EC laying down minimum standards for the reception of
asylum seekers;
(b) ensure that the
representative is given the opportunity to inform the unaccompanied minor about
the meaning and possible consequences of the personal interview and, where
appropriate, how to prepare himself/herself for the personal interview. Member
States shall allow the representative to be present at that interview and to
ask questions or make comments, within the framework set by the person who
conducts the interview.
Member States may require the presence of the unaccompanied
minor at the personal
interview
even if the representative is present.
2. Member States may
refrain from appointing a representative where the unaccompanied minor:
(a) will in all likelihood
reach the age of maturity before a decision at first instance is taken; or
(b) can avail himself, free
of charge, of a legal adviser or other counsellor, admitted as such under
national law to fulfil the tasks assigned above to the representative; or
(c) is married or has been
married.
3. Member States
may, in accordance with laws and regulations in force at the time of the
adoption of this Directive, also refrain from appointing a representative where
the unaccompanied minor is 16 years old or older, unless he/she is unable
to pursue his/her application without a representative.
4. Member
States shall ensure that:
(a) if an unaccompanied
minor has a personal interview on his/her application for asylum as referred to
in Articles 10, 11 and 12, that interview is conducted by a person who has
the necessary knowledge of the special needs of minors;
(b) an official who has the
necessary knowledge of the special needs of minors prepares the decision by the
determining authority on the application of an unaccompanied minor.
5. Member
States may use medical examinations to determine the age of unaccompanied
minors within the framework of the examination of an application for asylum.
In
cases where medical examinations are used, Member States 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. This shall include
information on the method of examination and the possible consequences of the
result of the medical examination for the examination of the application for
asylum, as well as the consequences of refusal on the part of the unaccompanied
minor to undergo the medical examination.
(b) unaccompanied minors
and/or their representatives consent to carry out an examination to determine
the age of the minors concerned, and
(c) 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 that refusal.
The
fact that an unaccompanied minor has refused to undergo such a medical
examination shall not prevent the determining authority from taking a decision
on the application for asylum.
6. The
best interests of the child shall be a primary consideration for Member States
when implementing the provisions of this Article.
Article
16
(deleted)
Article 17
Detention
1. Member States
shall not hold a person in detention for the sole reason that he/she is an
applicant for asylum.
2. Where an
applicant for asylum is held in detention, Member States shall ensure that
there is the possibility of speedy judicial review.
Article 18
(deleted)
Article 19
Procedure in case of withdrawal of the application
1. Insofar as the Member States foresee the possibility of explicit
withdrawal of the application under national law, when
an applicant for asylum explicitly withdraws his/her application for asylum,
Member States shall ensure that the determining authority takes a decision
either to discontinue the examination or to reject the application.
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 applicant's 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/her application for asylum, Member States shall
ensure that the determining authority takes a decision either to discontinue
the examination or to reject the application on the basis that the applicant
has not established an entitlement to refugee status in accordance with Council
Directive 2004/83/EC.
Member States may
assume that the applicant has implicitly withdrawn or abandoned his/her
application for asylum in particular when it is ascertained that:
(a) he/she has failed to
respond to requests to provide information essential to his/her application in
terms of Article 4 of Council Directive 2004/83/EC or has not appeared for
an personal interview as provided for in Articles 10, 11 and 12, unless
the applicant demonstrates within a reasonable time that his failure was due to
circumstances beyond his control;
(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 or he/she has not
within a reasonable time complied with reporting duties or other obligations to
communicate.
For the purpose of
implementing these provisions, Member States may lay down time limits or
guidelines.
2. Member States
shall ensure that the applicant who reports 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, unless the request is
examined in accordance with Articles 33 and 34.
Member
States may provide for a time limit after which the applicant's case can no
longer be reopened.
Member States
shall ensure that such a person is not removed contrary to the principle of
non-refoulement.
Member States may
allow the determining authority to take up the examination at the stage 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 in the territory of the
Member State on behalf of the UNHCR pursuant to an agreement with that Member
State.
Article 22
Collection of information on
individual cases
For the
purpose of examining individual cases, Member States
shall not:
(a) directly disclose the
information regarding individual applications for asylum, or the fact that an
application has been made, to the alleged actor(s) of persecution of the
applicant for asylum.
(b) obtain any information
from the alleged actor(s) of persecution in a manner that would result in such
actor(s) being directly informed of the fact that an application has been made
by the applicant in question, and would jeopardise the physical integrity of
the applicant and his/her dependants, or the liberty and security of his/her
family members still living in the country of origin.
CHAPTER III
Procedures at
first instance
Section I
Article 23
Examination procedure
1. Member
States shall process applications for asylum in an examination procedure in
accordance with the basic principles and guarantees of Chapter II.
2.
Member States
shall ensure that such a procedure is concluded as soon as possible, without
prejudice to an adequate and complete examination.
Member States shall ensure that, when no
decision can be taken within six months,
(a) the applicant concerned
shall either be informed of the delay or
(b) receive,
upon his/her request, information on the time-frame within which the decision
on his/her application is to be expected. Such information shall not constitute
an obligation for the Member State towards the applicant concerned to take a
decision within that time frame.
3. Member
States may prioritise or accelerate any examination in accordance with the
basic principles and guarantees of Chapter II including where the
application is likely to be well-founded or where the applicant has special
needs.
4. Moreover,
Member States may lay down that an examination procedure in accordance with the
basic principles and guarantees of Chapter II be prioritised or
accelerated if:
(a) the
applicant in submitting his/her application and presenting the fact, has only
raised issues that are not relevant or of minimal relevance to the examination
of whether he/she qualifies as a refugee by virtue of Council Directive
2004/83/EC; or
(b) the
applicant clearly does not qualify as a refugee or for refugee status in a
Member State under Council Directive 2004/83/EC; or
- because
the country which is not a Member State is considered to be a safe third
country for the applicant, without prejudice to Article 29(1); or
(d) the
applicant has misled the authorities by presenting false information or
documents or by withholding relevant information or documents with respect to
his/her identity and/or nationality that could have had a negative impact on
the decision; or
(e) the
applicant has filed another application for asylum stating other personal data;
or
(f) the
applicant has not produced information to establish with a reasonable degree of
certainty his/her identity or nationality, or, it is likely that, in bad faith,
he/she has destroyed or disposed of an identity or travel document that would
have helped establish his/her identity or nationality; or
(g) the
applicant has made inconsistent, contradictory, unlikely or insufficient
representations which make his/her claim clearly unconvincing in relation to
his/her having being the object of persecution under Council
Directive 2004/83/EC; or
(h) the
applicant has submitted a subsequent application raising no relevant new
elements with respect to his/her particular circumstances or to the situation
in his/her country of origin; or
(i) the
applicant has failed without reasonable cause to make his/her application
earlier, having had opportunity to do so; or
(j) the
applicant 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; or
(k) the
applicant failed without good reasons to comply with obligations referred to in
Articles 4(1) and (2) of Council Directive 2004/83/EC or in
Articles 9A(2)(a) and (b) and 20(1) of this Directive; or
(l) the
applicant entered the territory of the Member State unlawfully or prolonged
his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an
application for asylum as soon as possible given the circumstances of his/her
entry; or
(m) the
applicant is a danger to the national security or the public order of the
Member State; or the applicant has enforceably been expelled for serious
reasons of public security and public order under national law; or
(n) the
applicant refuses to comply with an obligation to have his/her fingerprints
taken in accordance with relevant Community and/or national legislation; or
(o) the
application was made by an unmarried minor to whom Article 5(4)(c) applies
after the application of the parents or parent responsible for the minor has
been rejected by a decision and no relevant new elements were raised with
respect to his/her particular circumstances or to the situation in his/her
country of origin.
Article 24
Specific
procedures
1. Member States may
moreover provide for the following specific procedures derogating from the
basic principles and guarantees of Chapter II:
(a) a
preliminary examination for the purpose of processing cases considered within
the framework of the provisions set out in Section IV;
(b) procedures
for the purpose of processing cases considered within the framework set out in
Section V.
2. Member States may
also provide a derogation in respect of Section VI.
Section II
Article 25
Cases of inadmissible applications
1. In addition to
cases in which an application is not examined in accordance with the provisions
of Council Regulation 343/2003 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, Member States
are not required to examine whether the applicant qualifies as a refugee in
accordance with Council Directive 2004/83/EC where
an application is considered inadmissible pursuant to the present Article.
2. Member States may
consider an application for asylum as inadmissible pursuant to this Article if:
(a) another Member State has
granted refugee status;
(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 Article 27;
(d) the applicant is
allowed to remain in the Member State concerned on some other ground and as
result of this he/she has been granted a status equivalent to the rights and
benefits of the refugee status by
virtue of Council Directive 2004/83/EC;
(e) the applicant is
allowed to remain in the territory of the Member State concerned on some other
grounds which protect him/her against refoulement pending the outcome of a
procedure for the determination of a status pursuant to (d);
(f) the applicant has lodged an identical application after a
final decision;
(g) a dependant of the
applicant lodges an application, after he/she has in accordance with
Article 5 (3), consented to have his/her case be part of an
application made on his/her behalf and there are no facts relating to the
dependant's situation justifying a separate application.
Article 26
Application of the concept of first
country of asylum
A
country can be considered to be a first country of asylum for a particular applicant
for asylum if
(a) he/she has been
recognised in that country as a refugee and he/she can still avail
himself/herself of that protection, or
(b) he/she enjoys otherwise
sufficient protection in that country, including benefiting from the principle
of non-refoulement,
provided that he/she
will be re-admitted to that country.
In applying the concept of first country of asylum to the particular
circumstances of an applicant for asylum, Member States may take into account
the content of Article 27(1).
Article 27
The safe third country concept
1. Member
States may apply the safe third country concept only where the competent
authorities are satisfied that a person seeking asylum will be treated in
accordance with the following principles in the third country concerned:
(a) life
and liberty are not threatened on account of race, religion, nationality,
membership of a particular social group or political opinion; and
(b) the
principle of non-refoulement in accordance with the Geneva Convention is respected;
and
(c) the
prohibition on removal in breach of the right to freedom from torture and
cruel, inhuman or degrading treatment as laid down in international law is
respected; and
(d) the
possibility exists to request refugee status and, if found to be a refugee, to
receive protection in accordance with the Geneva Convention.
2. The
application of the safe third country concept shall be subject to rules laid
down in national legislation, including:
(a) rules
requiring a connection between the person seeking asylum and the third country
concerned based on which it would be reasonable for that person to go to that
country;
(b) rules
on the methodology by which the competent authorities satisfy themselves that
the safe third country concept may be applied to a particular country or to a
particular applicant. Such methodology shall include case by case consideration
of the safety of the country for a particular applicant and/or national
designation of countries considered to be generally safe;
(c) rules,
in accordance with international law, allowing an individual examination of
whether the third country concerned is safe for a particular applicant which,
as a minimum, shall permit the applicant to challenge the application of the
safe third country concept on the grounds that he/she would be subjected to
torture, cruel, inhuman or degrading treatment or punishment.
3. When
implementing a decision solely based on this Article, Member States shall:
(b) provide
him/her with a document informing the authorities of the third country, in the
language of that country, that the application has not been examined in
substance.
4. Where the third
country does not permit the applicant for asylum in question to enter its territory, Member
States shall ensure that access to a procedure is given in accordance with the
basic principles and guarantees described in Chapter II.
5. Member States
shall inform the Commission periodically of the countries to which this concept
is applied in accordance with the provisions of this Article.
Article 28
(deleted)
Section III
Article 29
Cases of unfounded applications
1. Without prejudice
to Articles 19 and 20, Member States may only consider an application for
asylum as unfounded if the determining authority has established that the
applicant does not qualify for refugee status pursuant to Council Directive
2004/83/EC.
2. In the cases
mentioned in Article 23(4)(b) and in cases of unfounded applications for
asylum in which any of the circumstances listed in Article 23(4)(a) and
(c) to (o) apply, Member States may also consider an application, if it is so
defined in the national legislation, as manifestly unfounded.
Article 30
Minimum common list of third countries as safe countries of
origin
1. The
Council shall, acting by a qualified majority on a proposal from the Commission
and after consultation of the European Parliament, adopt a minimum common list
of third countries that shall be regarded by Member States as safe countries of
origin in accordance with Annex II.
2. The
Council may, acting by a qualified majority on a proposal from the Commission
and after consultation of the European Parliament, amend the minimum common
list by adding or removing third countries, in accordance with Annex II. The
Commission shall examine any request made by the Council or by a Member State
that it submit a proposal to amend the minimum common list.
3. When
making its proposal under paragraphs 1 or 2, the Commission shall make use of
information from the Member States, its own information and, where necessary,
information from UNHCR, the Council of Europe and other relevant international
organisations.
4. Where
the Council requests the Commission to submit a proposal for removing a third country
from the minimum common list, the obligation of Member States pursuant to
Article 30B(2) shall be suspended with regard to this third country as of
the day following the Council decision requesting such a submission.
5. Where
a Member State requests the Commission to submit a proposal to the Council for
removing a third country from the minimum common list, that Member State shall
notify the Council in writing of the request made to the Commission. The
obligation of this Member State pursuant to Article 30B(2) shall be
suspended with regard to the third country as of the day following the
notification of the request to the Council.
6. The
European Parliament shall be informed of the suspensions under
paragraphs 4 and 5.
7. The
suspensions under paragraphs 4 and 5 shall end after three months,
unless the Commission makes a proposal, before the end of this period, to
withdraw the third country from the minimum common list. The suspensions shall
end in any case where the Council rejects, a proposal by the Commission to
withdraw the third country from the list.
8. Upon
request by the Council, the Commission shall report to the Council and the
European Parliament on whether the situation of a country on the minimum common
list is still in conformity with Annex II. When presenting its report to
the Council and the European Parliament, the Commission may make such
recommendations or proposals as it deems appropriate.
Article 30A
National designation of third
countries as safe countries of origin
1. Without prejudice
to Article 30, Member States may retain or introduce legislation that
allows, in accordance with Annex II, for the national designation of third
countries other than those appearing on the minimum common list, as safe
countries of origin for the purpose of examining applications for asylum. This
may include designation of part of a country as safe where the conditions in
Annex II are fulfilled in relation to that part.
2. By derogation to
paragraph 1, Member States may retain legislation in force at the time of
adoption of this Directive that allows for the national designation of third
countries, other than those appearing on the minimum common list, as safe
countries of origin for the purposes of examining applications for asylum where
they are satisfied that persons in the third countries concerned are generally
neither subject to:
(a) persecution as defined
in Article 9 of Council Directive 2004/83/EC; nor
(b) torture or inhuman or
degrading treatment or punishment.
3. Member States may
also retain legislation in force at the time of the adoption of this Directive
that allows for the national designation of part of a country as safe or a
country or part of a country as safe for a specified group of persons in that
country where the conditions in paragraph 2 are fulfilled in relation to
that part or group.
4. In
assessing whether a country is a safe country of origin in accordance with
paragraphs 2 and 3, Member States shall have regard to the legal
situation, the application of the law and the general political circumstances
in the third country concerned.
5. The
assessment of whether a country is a safe country of origin in accordance with
this Article shall be based on a range of sources of information, including in
particular information from other Member States, the UNHCR, the Council of
Europe and other relevant international organisations.
6. Member States
shall notify to the Commission the countries that are designated as safe
countries of origin in accordance with the provisions of this Article.
Article 30B
Application of the safe country of origin concept
1. A
third country designated as a safe country of origin either in accordance with
the provisions of Article 30 or 30A can, after an individual examination of the
application, be considered as a safe country of origin for a particular
applicant for asylum only if:
(a) he/she
has the nationality of that country or,
(b) he/she
is a stateless person and was formerly habitually resident in that country;
and
he/she has not submitted any seriousgrounds
for considering the country not to be a safe country of origin in his/her
particular circumstances in terms of his/her qualification as a refugee in
accordance with Council Directive 2004/83/EC.
2. Member States
shall, in accordance with paragraph 1, consider the application for asylum as
unfounded where the third country is designated as safe pursuant to
Article 30.
3. Member States
shall lay down in national legislation further rules and modalities for the
application of the safe country of origin concept.
Article 31
(deleted)
Section IV
Article 32
(deleted)
Article
33
Cases of subsequent applications
1. Where a person who has applied for asylum in a Member State makes
further representations or a subsequent application in the same Member State,
that Member State may examine these further representations or the elements of
the subsequent application in the framework of the examination of the previous
application or in the framework of the examination of the decision under review
or appeal insofar as the competent authorities can take into account and
consider all the elements underlying the further representations or subsequent
application within this framework.
2. Moreover, Member
States may apply a specific procedure as referred to in paragraph 3, where
a person makes a subsequent application for asylum:
(a) after his/her previous
application has been withdrawn by virtue of Articles 19 or 20;
(b) after a decision has
been taken on the previous application. Member States may also decide to apply
this procedure only after a final decision has been taken.
3. A subsequent
application for asylum shall be subject first to a preliminary examination as
to whether, after the withdrawal of the previous application or after the
decision referred to in paragraph 2(b) on this application has been
reached, new elements or findings relating to the examination of whether he/she
qualifies as a refugee by virtue of Council Directive 2004/83/EC have arisen or
have been presented by the applicant.
4. If, following the
preliminary examination referred to in paragraph 3, new elements or
findings arise or are presented by the applicant which significantly add to the
likelihood of the applicant qualifying as a refugee by virtue of Council Directive
2004/83/EC, the application
shall be further examined in conformity with Chapter II.
5. Member States
may, in accordance with national legislation, further examine a subsequent
application where there are other reasons according to which a procedure has to
be reopened.
6. Member States may
decide to further examine the application only if the applicant concerned was,
through no fault of his/her own, incapable of asserting the situations set
forth in paragraphs 3, 4 and 5 in the previous procedure, in particular by
exercising his/her right to an effective remedy pursuant to Article 38.
7. This procedure
may also be applicable in the case of a dependant who lodges an application,
after he/she has in accordance with Article 5 (3), consented to have
his/her case be part of an application made on his/her behalf. In this case the
preliminary examination referred to in paragraph 3 will consist of
examining whether there are facts relating to the dependant's situation
justifying a separate application.
Article 33A
Member States may retain or adopt the procedure provided for in
Article 33 in the case of an application for asylum filed at a later date by an
applicant who, either intentionally or owing to gross negligence, fails to go
to a reception centre or to appear before the competent authorities at a
specified time.
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 (1).
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 of 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 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 seeking an appeal or review of the decision;
(b) if one of 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 V
Article 35
Cases of border procedures
1. Member States may
provide for procedures, in accordance with the basic principles and guarantees
of Chapter II, in order to decide, at the border or transit zones of the
Member State, on the applications made at such locations.
2. However, when
procedures as set out in paragraph 1 do not exist, Member States may
maintain, subject to the provisions of this Article and in accordance with the
laws or regulations in force at the time of the adoption of this Directive,
procedures derogating from the basic principles and guarantees described in
Chapter II, in order to decide, at the border or in transit zones, on the
permission to enter their territory of applicants for asylum who have arrived
and made an application for asylum at such locations.
3. The procedures
referred to in paragraph 2 shall ensure in particular that the persons
concerned:
- shall
be allowed to remain at the border or transit zones of the Member State,
without prejudice to Article 6; and
- must be immediately
informed of their rights and obligations, as described in
Article 9 (1) (a); and
- have access, if necessary,
to the services of an interpreter, as described in
Article 9 (1) (b); and
- are interviewed, before
the competent authority takes a decision in such procedures, in relation to
their application for asylum by persons with appropriate knowledge of the
relevant standards applicable in the field of asylum and refugee law, as
described in Articles 10 to 12; and
- can consult a legal
adviser or counsellor admitted or permitted as such under national law, as described
in Article 13 (1); and
- have a representative
appointed in the case of unaccompanied minors, as described in
Article 15 (1), unless Article 15(2) or (3) applies.
Moreover,
in case permission to enter is refused by a competent authority, this competent
authority shall state the reasons in fact and in law why his/her application
for asylum is considered as unfounded or as inadmissible.
4. Member States
shall ensure that a decision in the framework of the procedures provided for in
paragraph 2 is taken within a reasonable time. When a decision has not
been taken within four weeks, the applicant for asylum shall be granted entry
to the territory of the Member State in order for his/her application to be
processed in accordance with the other provisions of this Directive.
5. In the event of
particular types of arrivals or arrivals involving a large number of third
country nationals or stateless persons lodging applications for asylum at the
border or in a transit zone, which makes it practically impossible to apply
there the provisions of paragraph 1 or the specific procedure set out in
paragraphs 2 and 3, those procedures may also be applied where and for as
long as these third country nationals or stateless persons are accommodated normally
at locations in proximity to the border or transit zone.
Section VI
Article 35A
1. Member States may
provide that no, or no full, examination of the asylum application and of the
safety of the applicant in his/her particular circumstances as described in Chapter II
takes place in cases where a competent authority has established, on the basis
of the facts, that the applicant for asylum is seeking to enter or has entered
illegally into its territory from a safe third country according to paragraph 2.
2. A third country
can only be considered as a safe third country for the purpose of
paragraph 1 where:
(a)
it has ratified and observes the
provisions of the Geneva Convention without any geographical limitations; and
(b)
it has in place an asylum procedure
prescribed by law; and
(c)
it has ratified the European
Convention for the Protection of Human Rights and Fundamental Freedoms and it observes its provisions,
including the standards relating to effective remedies; and
(d) it has been so
designated by the Council in accordance with paragraph 3.
3. The Council
shall, acting by qualified majority on the proposal of the Commission and after
consultation of the European Parliament, adopt or amend a common list of third
countries that shall be regarded as safe third countries for the purposes of
paragraph 1.
4. Member States
concerned shall lay down in national law the modalities for implementing the
provisions of paragraph 1 and the consequences of decisions pursuant to those
provisions in accordance with the principle of non-refoulement under the Geneva
Convention including providing for exceptions from the application of this
Article for humanitarian or political reasons or for reasons of public
international law.
5. When implementing
a decision solely based on this Article, Member States concerned shall:
(b) provide him/her with a
document informing the authorities of the third country, in the language of
that country, that the application has not been examined in substance.
6. Where the safe
third country does not readmit the applicant for
asylum in question, Member States shall ensure that access to a procedure is
given in accordance with the basic principles and guarantees described in
Chapter II.
7. Member States
which have designated third countries as safe countries in accordance with
national legislation in force at the date of the adoption of this Directive and
on the basis of the criteria in paragraph 2(a) to (c), may apply
paragraph 1 to these third countries until such time as the Council has
adopted the common list pursuant to paragraph 3.
CHAPTER IV
Procedures
for the withdrawal of refugee status
Article 36
Withdrawal of refugee status
Member States shall ensure that an examination
may be started to withdraw the refugee status of a particular person when new
elements or findings arise indicating that there are reasons to reconsider the
validity of his/her refugee status.
Article 37
Procedural rules
1. Member States
shall ensure that, where the competent authority is considering to withdraw the
refugee status of a third country national or stateless person in accordance
with Article 14 of Council Directive 2004/83/EC, the person concerned shall enjoy the following guarantees:
(a) to be informed in
writing that the competent authority is reconsidering his or her qualification
for refugee status and the reasons for such a reconsideration; and
(b) to be given the
opportunity to submit, in a personal interview in accordance with
Article 9 (1) (b) and Articles 10 to 12 or in a written
statement, reasons as to why his/her refugee status should not be withdrawn.
In addition, Member States shall
ensure that within the framework of such a procedure:
(c) the competent authority
is able to obtain precise and up to date information from various sources, such
as, where appropriate, information from the United Nations High Commissioner
for Refugees (UNHCR), as to the general situation prevailing in the countries
of origin of the persons concerned; and
(d) where information is
collected on the individual case for the purpose of reconsidering the refugee
status, it is not obtained from the actor(s) of persecution in a manner that
would result in such actor(s) being directly informed of the fact that the
person concerned is a refugee, whose status is under reconsideration, nor
jeopardise the physical integrity of the person and his/her dependants, or the
liberty and security of his/her family members still living in the country of
origin.
2. Member States
shall ensure that the decision of the competent authority to withdraw the
refugee status is given in writing. The reasons in fact and in law shall be
stated in the decision and information on how to challenge the decision shall
be given in writing.
3. Once the
competent authority has taken the decision to withdraw the refugee status,
Articles 13, paragraph 2, 14, paragraph 1 and 21 are equally
applicable.
4. By derogation to
paragraphs 1, 2 and 3, Member States may decide that the refugee status
lapses by law in case of cessation in accordance with Article 11(1),
sub-paragraphs (a), (b), (c) and (d) of Council
Directive 2004/83/EC or if the refugee has unequivocally renounced
his/her recognition as a refugee.
CHAPTER V
Appeals procedures
Article 38
The
right to an effective remedy
1. Member States
shall ensure that applicants for asylum have the right to an effective remedy
before a court or tribunal, against the following:
(a) a decision taken on
their application for asylum, including a decision:
(i) to consider an
application inadmissible pursuant to Article 25(2),
(ii) at the border or in the
transit zones of a Member State as described in Article 35(1);
(iii) not to conduct an examination
pursuant to Article 35A;
(b) a refusal to re-open
the examination of an application after its discontinuation pursuant to
Articles 19 and 20;
(c) a decision not to
further examine the subsequent application pursuant to Articles 33
and 34;
(d) a decision refusing
entry within the framework of the procedures provided for under
Article 35 (2);
(e) a decision for the
withdrawal of the refugee status pursuant to Article 37.
2. Member States
shall provide for time limits and other necessary rules for the applicant to
exercise his/her right to an effective remedy pursuant to paragraph 1.
3. Member States
shall, where appropriate, provide for rules in accordance with their
international obligations dealing with:
(a) the question of whether
the remedy pursuant to paragraph 1 shall have the effect of allowing
applicants to remain in the Member State concerned pending its outcome; and
(b) the possibility of
legal remedy or protective measures where the remedy pursuant to
paragraph 1 does not have the effect of allowing applicants to remain in
the Member State concerned pending its outcome. Member States may also provide
for an ex officio remedy; and
(c) the grounds of
challenge to a decision under Article 25(2)(c) in accordance with the
methodology applied under Article 27(2)(b) and (c).
4. Member States may
lay down time limits for the court or tribunal pursuant to paragraph 1 to
examine the decision of the determining authority.
5. Where an
applicant has been granted a status, which offers the same rights and benefits
under national and Community law as the refugee status by virtue of Council
Directive 2004/83/EC, the applicant may be
considered to have an effective remedy where a court or tribunal decides that
the remedy pursuant to paragraph 1 is inadmissible or unlikely to succeed
on the basis of insufficient interest on the part of the applicant in
maintaining the proceedings.
6. Member States may
also lay down in national legislation the conditions under which it can be
assumed that an applicant has implicitly withdrawn or abandoned his/her remedy
pursuant to paragraph 1, together with the rules on the procedure to be
followed.
Article 39
(deleted)
Article 40
(deleted)
CHAPTER VI
General and final
provisions
Article 40A
This
Directive does not affect the possibility for public authorities of challenging
the administrative and/or judicial decisions as provided for in national
legislation.
Article 41
Confidentiality
Member
States shall ensure that authorities implementing this Directive are bound by
the confidentiality principle, as defined in national law, in relation to any
information they obtain in the course of their work.
Article 42
Report
No later than two years after the date specified
in Article 43, 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 43
Transposal
Member States shall bring into force the laws,
regulations and administrative provisions necessary to comply with this Directive
by [24 months after the date of its adoption]. Concerning Article 13,
Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by [36 months after the
date of its adoption]. 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 43A
Transition
Member States shall apply the laws,
regulations and administrative provisions set out in Article 43 to
applications for asylum lodged after [date mentioned in Article 43] and to
procedures for the withdrawal of refugee status started after [date mentioned
in Article 43].
Article 44
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 Union.
Article 45
Addressees
This Directive is addressed to the Member States
in conformity with the Treaty establishing the European Community.
Done at Brussels,
For
the Council
The
President
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