ANNEX
2009/0165 (COD)
Amended proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on common procedures for granting and withdrawing international protection status
(Recast)
THE
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having
regard to the Treaty on
the Functioning of the European Union, and in
particular Article 78(2)(d) thereof,
Having regard to the proposal from
the European Commission,
Having regard to the opinion of the
European Economic and Social Committee,
Having regard to the opinion of the
Committee of the Regions,
Acting in
accordance with the ordinary legislative procedure,
Whereas:
(1) A number of substantive changes are to be made to Council Directive
2005/85/EC of 1 December 2005 on minimum standards on procedures for granting
and withdrawing refugee status.
In the interest of clarity, that Directive should be recast.
ę 2005/85/EC recital 1 (adapted)
đ new
(2) 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 Ö Union Ő Community. đ It should be governed by the principle of solidarity and
fair sharing of responsibility, including its financial implications, between the
Member States. ď
(3) 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 amended 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.
ę 2005/85/EC recital 3 (adapted)
(4) 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, Ö Union Ő Community rules leading to a common asylum
procedure in the European Ö Union Ő Community.
ę 2005/85/EC recital 4
đ new
(5) đ The first phase of a Common European Asylum System was achieved
through the adoption of relevant legal instruments foreseen in the Treaties,
including Directive 2005/85/EC which was ď The minimum standards laid
down in this Directive on procedures in Member States for granting or
withdrawing refugee status are therefore a first
measure on asylum procedures.
(6) The European Council, at its meeting of 4 November 2004, adopted the
Hague Programme, which set the objectives to be implemented in the area of
freedom, security and justice in the period 2005-2010. In this respect, the
Hague Programme invited the European Commission to conclude the evaluation of
the first phase legal instruments and to submit the second phase instruments
and measures to the Council and the European Parliament. In accordance with the
Hague Programme, the objective to be pursued for the creation of the Common
European Asylum System is the establishment of a common asylum procedure and a
uniform status valid throughout the Union.
(7) In the European Pact on Immigration and Asylum, adopted on 16 October
2008, the European Council noted that considerable disparities remain between
one Member State and another concerning the grant of protection and called for
new initiatives, including a proposal for establishing a single asylum
procedure comprising common guarantees, to complete the establishment of a
Common European Asylum System, provided for in the Hague Programme.
(8) The European Council, at its meeting of 10-11 December 2009, adopted the
Stockholm Programme which reconfirmed the commitment to establishing a common
area of protection and solidarity based on a common asylum procedure and a
uniform status for those granted international protection based on high
protection standards and fair and effective procedures by 2012. The Stockholm
Programme affirmed that people in need of international protection must be
ensured access to legally safe and efficient asylum procedures. In accordance
with the Stockholm Programme, individuals, regardless of the Member State in
which their application for asylum is lodged, should be offered the same level
of treatment as regards procedural arrangements and status determination. The
objective should be that similar cases should be treated alike and result in
the same outcome.
(9) The resources of the European Refugee Fund and of the European Asylum
Support Office, established by Regulation (EU) No 439/2010 of the European
Parliament and of the Council,
should be mobilised to provide adequate support to the Member States' efforts
relating to the implementation of the standards set in the second phase of the
Common European Asylum System, in particular to those Member States which are
faced with specific and disproportionate pressures on their asylum systems, due
in particular to their geographical or demographic situation.
Ü(9a) When implementing this
Directive Member States should take into account relevant guidelines developed
by the European Asylum Support Office. Ű
(10) In order to ensure a comprehensive and efficient evaluation of the
international protection needs of applicants within the meaning of Directive […/.../EU] [on minimum standards for the
qualification and status of third country nationals or stateless persons as
beneficiaries of international protection and the content of the protection
granted (the Qualification Directive)], the Union framework on
procedures for granting international protection should be based on the concept
of a single asylum procedure.
ę 2005/85/EC recital 5
đ new
(11) The main objective of this Directive
is to đ further develop the standards for procedures in Member States for
granting and withdrawing international protection with a view to establishing a
common asylum procedure in the Union ď introduce a minimum framework in the Community
on procedures for granting and withdrawing refugee status.
ę 2005/85/EC recital 6
đ new
(12) The approximation of rules on the
procedures for granting and withdrawing đ international protection ď refugee status should help to limit the secondary movements
of applicants for đ international protection ď asylum between Member States, where such
movement would be caused by differences in legal frameworks đ , and create equivalent conditions for the application of
Directive […/…/EU] [the Qualification Directive] in Member States ď.
ę 2005/85/EC recital 7
đ new
(13) 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 đ in need of international protection ď a refugee within the meaning of đ Directive […/…/EU] [the Qualification Directive] ď Article 1(A) of the Geneva Convention.
ę 2005/85/EC recital 9
đ new
(14) 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.
ę 2005/85/EC recital 10
đ new
(15) It is essential that decisions on
all applications for đ international protection ď asylum be taken on the basis of the facts and, in the
first instance, by authorities whose personnel has the appropriate knowledge or
has
receiveds the necessary training in the field of asylum
and đ international protection ď refugee matters.
ę 2005/85/EC recital 11
(adapted)
đ new
(16) It is in the interest of both Member
States and applicants for đ international protection ď asylum Ö that a decision is made Ő to make a
decision as soon
as possible on applications for đ international protection ď asylum, đ without prejudice to an adequate and complete examination ď. The organisation of the processing of
applications for asylum should be 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.
(17) It is also in the interest of both Member States and applicants to
ensure a correct recognition of international protection needs already at first
instance. To that end, applicants should be provided at first instance, free of
charge, with legal and procedural information, taking into account their
particular circumstances. The provision of such information should inter
alia enable the applicants to better understand the
procedure, thus helping them to comply with the relevant obligations. It would
be disproportionate to require Member States to provide such information only
through the services of qualified lawyers. Member States should therefore have
the possibility to find the most appropriate modalities for the provision of
such information, such as through non-governmental organisations, government
officials or specialised services of the State.
(18) In appeals procedures, subject to certain conditions, applicants should
be granted free legal assistance and representation provided by persons
competent to do so under national law. Furthermore, at all stages of the
procedure, applicants should have the right to consult, at their own cost,
legal advisers or counsellors permitted as such under national law.
ę 2005/85/EC recital 12
đ new
(19) The notion of public order may đ inter alia ď cover a conviction for committing a
serious crime.
ę 2005/85/EC recital 13
(adapted)
đ new
(20) 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 đ or as persons eligible for subsidiary protection ď, every applicant should, subject to certain exceptions, have an effective access to
procedures, the opportunity to cooperate 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 throughout all stages
of the procedure. Moreover, the procedure in which an application for đ international protection ď asylum is examined should normally provide an
applicant at least with the 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) đ and with organisations providing advice or counselling to
applicants for international protection ď 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 đ understands or ď Ö is Ő can reasonably be supposed to understand đ and, in the case of a negative decision, the right to an effective
remedy before a court of a tribunal ď.
In
addition, specific procedural guarantees for unaccompanied minors should be
laid down on account of their vulnerability. In this context, the best
interests of the child should be a primary consideration of Member States.
(21) With a view to ensuring an effective access
to the examination procedure, officials who first come into contact with
persons seeking international protection, in particular those carrying out
surveillance of land or maritime borders or conducting border checks, should
receive Ü relevant
information Ű Ü […] Ű and necessary training on how to recognise
and deal with requests for international protection Ü inter alia taking due account of relevant
guidelines developed by the European Asylum Support Office Ű . They should be able to provide third
country nationals or stateless persons who are present in the territory,
including at the border, in the territorial waters or in the transit zones of
the Member States, and wish to request international protection, with Ü […] Ű relevant information as to where and how applications
for international protection may be lodged. Where those persons are present in
the territorial waters of a Member State, they should be disembarked on land
and have their applications examined in accordance with this Directive.
(22) In order to facilitate access to the
examination procedure at border crossing points and in detention facilities,
information should be made available on the possibility to request
international protection. Basic communication necessary to enable the competent
authorities to understand if persons declare their wish to apply for
international protection should be ensured through interpretation arrangements.
(23) Ü Certain applicants
may be in need of procedural guarantees due to their age, gender, sexual
orientation, gender identity, disability, serious illness, mental disorders or
consequences of Ű Ü […] Ű torture, rape or other serious Ü forms Ű Ü […] Ű of Ü psychological,
physical or sexual Ű violence
Ü . Those
applicants Ű Ü […] Ű should be provided with adequate support in order to create the
conditions necessary for their effective access to procedures and presenting
the elements needed to substantiate the application for international
protection.
(24) National measures dealing with identification and documentation of
symptoms and signs of torture or other serious acts of physical or mental
violence, including acts of sexual violence, in procedures covered by this
Directive Ü may Ű Ü […] Ű inter alia be based on the Manual on Effective Investigation and Documentation of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).
(25) With a view to ensuring substantive equality between female and male
applicants, examination procedures should be gender sensitive. In particular,
personal interviews should be organised in a way which makes its possible for
both female and male applicants to speak about their past experiences in cases
involving gender based persecution. The complexity of gender related claims
should be properly taken into account in procedures based on the safe third
country concept, the safe country of origin concept or the notion of subsequent
applications.
(26) The best interests of the child should be a primary consideration of
Member States when implementing this Directive, in line with the Charter of
Fundamental Rights of the European Union and the 1989 United Nations Convention
on the Rights of the Child.
(27) Procedures for examining international protection needs should be
organised in a way that makes it possible for the competent authorities to
conduct a rigorous examination of applications for international protection.
ę 2005/85/EC recital 15
đ new
(28) 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 đ be able to dismiss an application as inadmissible in accordance
with the res judicata principle ď have a choice of procedure involving exceptions
to the guarantees normally enjoyed by the applicant.
ę 2005/85/EC recital 16
đ new
(29) Many asylum applications đ for international protection ď 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 đ provide for admissibility and/or substantive examination
procedures which make it possible to decide on applications made at the border
or in transit zones at those locations in well-defined circumstances ď 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.
ę 2005/85/EC recital 17
đ new
(30) A key consideration for the well‑foundedness
of an asylum application đ for international protection ď 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.
(31) 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.
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.
ę 2005/85/EC recital 20
(adapted)
(32) It results from the status of Bulgaria and Romania as candidate countries
for accession to the European Union and the progress made by these countries
towards 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.
ę 2005/85/EC recital 21
đ new
(33) 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 đ valid ď 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.
ę 2005/85/EC recital 22
(adapted)
đ new
(34) Member States should examine all
applications on the substance, i.e. assess whether the applicant in question
qualifies Ö for international
protection Ő as a refugee in accordance with Directive
[…/…/EU] [the Qualification Directive] Council Directive 2004/83/EC of
29 April 2004 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 the present Directive provides otherwise, in particular where it can be
reasonably assumed that another country would do the examination or provide
sufficient protection. In particular, Member States should not be obliged to
assess the substance of an asylum application
đ for international protection ď 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.
ę 2005/85/EC recital 23
đ new
(35) Member States should also not be
obliged to assess the substance of an an asylum
application đ for international protection ď where the applicant, due to a đ sufficient ď connection to a third country as
defined by national law, can reasonably be expected to seek protection in that
third country đ, and there are grounds for considering that the applicant will be
admitted or re-admitted to that country ď. Member States should only proceed
on this basis where this particular applicant would be safe in the third
country concerned. In order to avoid secondary movements of applicants, common
principles for the consideration or designation by Member States of third
countries as safe should be established.
ę 2005/85/EC recital 24
đ new
(36) Furthermore, with respect to certain
European third countries, which observe particularly high human rights and
refugee protection standards, Member States should be allowed to not carry out,
or not to carry out full examination of asylum
applications đ for international protection ď 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.
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.
(37) In order to facilitate regular exchange of information about the
national application of the safe country of origin, safe third country and
European safe third country concepts and to prepare possible further
harmonisation in the future, Member States should notify or periodically inform
the Commission about the third countries to which these concepts are applied.
ę 2005/85/EC recital 26
đ new
(38) With respect to the withdrawal of
refugee đ or subsidiary protection ď status, Member States should ensure
that persons benefiting from đ international protection ď 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, dispensing with
these guarantees should be allowed 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.
ę 2005/85/EC recital 27
(adapted)
đ new
(39) It reflects a basic principle of Ö Union Ő Community law that the decisions taken on an
application for asylum đ international protection, the decisions concerning a refusal to
re-open the examination of an application after its discontinuation, ď and Ö the decisions Ő on the withdrawal of refugee đ or subsidiary protection ď status are subject to an effective
remedy before a court or tribunal within the meaning of Article 234 of the Treaty. 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.
(40) In accordance with Article 72 64 of the Treaty on
the Functioning of the European Union, 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.
ę 2005/85/EC recital 29
đ new
(41) This Directive does not deal with
procedures đ between Member States ď governed by Council
Regulation (EC) No 343/2003 of 18 February 2003 Regulation
(EU) No […/…]
[establishing the criteria and mechanisms for determining the Member state
responsible for examining an asylum
application đ for international protection ď lodged in one of the Member States
by a third‑country national đ or a stateless person ď] (the
Dublin Regulation).
Ü […] Ű
(43) The implementation of this Directive
should be evaluated at regular intervals not exceeding two years.
ę 2005/85/EC recital 31
(adapted)
Ü Council
(44) Since the objectives of this
Directive, namely to establish
minimum standards on procedures in Member States for granting and withdrawing
refugee status
cannot be sufficiently achieved by the Member States and can therefore, by
reason of the scale and effects of the action, be better achieved at Ö Union Ő Community level, the Ö Union Ő Community may adopt measures, in accordance
with the principle of subsidiarity as set out in Article 5 of the Treaty on
European Union.
In accordance with the principle of proportionality, as set out in that
Article, this Directive does not go beyond what is necessary in order to
achieve that objective.
Ü (44a) In accordance with the
Joint Political Declaration of Member States and the Commission on explanatory
documents of 28 September 2011, Member States have undertaken to accompany, in
justified cases, the notification of their transposition measures with one or
more documents explaining the relationship between the components of a
directive and the corresponding parts of national transposition instruments.
With regard to this Directive, the legislator considers the transmission of
such documents to be justified. Ű
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.
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.
(45) In accordance with Ü Articles 1,
2 and Ű Article 4a(1) of Protocol Ü ( Ű No. 21 Ü ) Ű on the position of the United Kingdom and Ireland in respect of the Area
of Freedom, Security and Justice, annexed to the Treaty on European Union and
the Treaty on the Functioning of the European Union, and without prejudice to Ü […] Ű Article 4 of that Protocol, Ü the United
Kingdom and Ireland are not taking part in the adoption of this Directive
and Ű Ü […] Ű are not bound by it Ü or subject
to its application Ű Ü […] Ű.
(46) 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 on the Functioning of the European
Union establishing
the European Community, Denmark does not take part in the adoption of this Directive and is
not bound by it or subject to its application.
ę 2005/85/EC recital 8
đ new
(47) This Directive respects the
fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the
European Union. đ In particular, this Directive seeks to ensure full respect for
human dignity and to promote the application of Articles 1, 18, 19, 21, 23, 24,
and 47 of the Charter and has to be implemented accordingly. ď
(48) The obligation to transpose this Directive into national law should be
confined to those provisions which represent a substantive change as compared
with the earlier Directive. The obligation to transpose the provisions which
are unchanged arises under the earlier Directive.
(49) This Directive should be without prejudice to the obligations of the
Member States relating to the time-limit for transposition into national law of
the Directive set out in Annex II, Part B.
ę 2005/85/EC
đ new
Ü Council
HAVE
ADOPTED THIS DIRECTIVE,
CHAPTER
I
General
provisions
Article
1
Purpose
The
purpose of this Directive is to establish đ common ď minimum standards on procedures in Member States for granting and
withdrawing đ international protection Ü […] Ű by virtue of Directive […/…/EU]
[the Qualification Directive] ď 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"
or "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;
(b) "application"
or "application for international protection" means a request made by
a third country national or a stateless person for protection from a Member
State, who can be understood to seek refugee status or subsidiary protection
status, and who does not explicitly request another kind of protection outside
the scope of Directive […/…/EU] [the Qualification Directive], that can be
applied for separately;
(c) "applicant"
or "applicant for đ international protection ď asylum" means a third
country national or stateless person who has made an application for đ international protection ď asylum in respect of which a
final decision has not yet been taken;
(d) "applicant
in need of special procedural guarantees" means an applicant Ü whose
ability to benefit from the rights and comply with the obligations provided for
in this Directive is limited Ű Ü […] Ű due to Ü individual
circumstances Ü […] Ű ;
(ed) "final
decision" means a decision on whether the third country
national or stateless person be granted refugee đ or subsidiary protection ď status by virtue of Directive […/…/EU] [the Qualification Directive] 2004/83/EC and which is no longer subject to a remedy within the framework of
Chapter V of this Directive 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 of this Directive;
(fe) "determining
authority" means any quasi‑judicial or administrative body in a
Member State responsible for examining applications for đ international protection ď asylum competent to take
decisions at first instance in such cases, subject to Annex I;
(gf) "refugee"
means a third country national or a stateless person who fulfils
the requirements of Article 2(d) of Directive
[…/…/EU] [the Qualification Directive] 1 of the Geneva Convention as set out in Directive 2004/83/EC;
(h) "person
eligible for subsidiary protection" means a third country national or a stateless
person who fulfils the requirements of Article 2(f) of Directive […/…/EU] [the
Qualification Directive];
(i) "international
protection Ü […] Ű" means the recognition by a Member State of a third country
national or a stateless person as a refugee or a person eligible for subsidiary
protection;
(jg) "refugee status" means the recognition by a Member State of a third
country national or Ö a Ő stateless
person as a refugee;
(k) "subsidiary
protection status" means the recognition by a Member State of a third
country national or a stateless person as a person eligible for subsidiary
protection;
(l) "minor"
means a third country national or a stateless person below the age of 18 years;
ę 2005/85/EC (adapted)
đ new
Ü Council
(mh) "unaccompanied minor" means đ a minor as defined in Article 2(l) of
Directive […/…/EU] [the Qualification Directive] ď 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;
(ni) "representative"
means a đ person or an organisation appointed by
the competent bodies Ü […] Űin order to assist and represent an unaccompanied
minor in procedures provided for in this Directive with a view to ensuring the
child's best interests and exercising legal capacity for the minor where
necessary. Where an organisation Ü is
appointed Ű Ü […] Űas a representative, it shall Ü designate Ű Ü […] Űa person responsible for carrying out the duties of Ü Ü […] Ű Ü this Ű organisation Ű Ü […] Űin respect of the minor, in accordance with this
Directive ď 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;
(oj) "withdrawal
of đ international protection ď refugee status" means the
decision by a competent authority to revoke, end or refuse to renew the refugee đ or subsidiary protection ď status of a person in
accordance with Directive […/…/EU] [the
Qualification Directive] 2004/83/EC;
(pk) "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 đ international protection ď asylum has been made or is
being examined;.
(q) "subsequent
application" means a further application made after a final decision has
been taken on a previous application, including cases where the applicant has
explicitly withdrawn his/her application and cases where the determining
authority has rejected an application following its implicit withdrawal in
accordance with Article 28(1).
ę 2005/85/EC (adapted)
đ new
Article
3
Scope
1. This
Directive shall apply to all applications for đ international protection ď asylum made in the territory, including at
the border đ , in the territorial waters ď or in the transit zones of the Member States, and to the withdrawal
of đ international protection ď 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 given under the
circumstances defined by Article 15 of Directive 2004/83/EC, they shall apply this Directive throughout their
procedure.
3.4. Moreover,Member
States may decide to apply this Directive in procedures for deciding on
applications for any kind of international protection đ falling outside of the scope of Directive
[…/…/EU] [the Qualification Directive] ď.
Article
4
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 this Directive, in particular Articles 8(2) and 9. đ Member States shall ensure
that that authority is provided with appropriate means, including sufficient
competent personnel, to carry out its tasks in accordance with this Directive. ď
In
accordance with Article 4(4) of 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
in whose territory the application is made.
2. However,Member States
may provide that Ö an Ő
another authority Ö other than that referred to in paragraph 1 Ő
is responsible for the purposes of:
(a) đ processing cases pursuant to
Regulation (EU) No […/…] [the Dublin Regulation], and ď 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 the transfer takes place or the
requested State has refused to take charge of or take back the applicant;
(b) taking a decision on the application in the
light of national security provisions, provided the determining authority is
consulted prior to this decision as to whether the applicant qualifies as a
refugee by virtue of Directive 2004/83/EC;
(c) conducting a preliminary examination
pursuant to Article 32, 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);
(be) đ granting or ď refusing
permission to enter in the framework of the procedure provided for in Article đ 43 ď 35(2) to (5), subject to
the conditions and as set out therein đ and on the basis of the
opinion of the determining authority. ď ;
(f) establishing that an applicant is seeking to
enter or has entered into the Member State from a safe third country pursuant
to Article 36, subject to the conditions and as set out in that Article.
3. Member States shall ensure that the personnel
of the determining authority are properly trained. To that end, Member States
shall provide for Ü […] Ű relevant Ü […] Ű training Ü taking inter
alia Ű Ü […] Ű into account the training established and
developed by the European Asylum Support Office. Ü Persons
interviewing applicants pursuant to this Directive Ü shall Ű also Ü have
acquired general knowledge of Ü […] Ű problems
which could adversely affect the applicants' ability to be interviewed Ü , such as
indications of possible past torture. Ű. Ű
4.3. Where
Ö an authority is Ő
authorities are designated in accordance
with paragraph 2, Member States shall ensure that the personnel of Ö that authority Ő
such authorities have the appropriate
knowledge or receive the necessary training to fulfil their obligations when
implementing this Directive.
5. Applications
for international protection made in a Member State to the authorities of
another Member State carrying out border or immigration controls there shall be
dealt with by the Member State in whose territory the application is made.
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Article
5
More favourable provisions
Member
States may introduce or maintain more favourable standards on procedures for
granting and withdrawing đ international protection ď refugee status, insofar as those
standards are compatible with this Directive.
CHAPTER
II
Basic
principles and guarantees
Article
6
Access to the procedure
1.Ü […] Ű
Ü […] Ű Ü When a person makes a
request for international protection, Ű Ü to an
authority competent under national law for registration of such applications,
the Ü registration Ű Ü […] Ű shall Ü take place
Ű Ü […] Ű no later than 3 working days after the request is
made. Ű
Ü If
the request Ü for
international protection Ű is
made to Ü other
authorities which are Ű Ü […] Ű likely to receive such requests, but not competent
for the registration under national law, Member States shall ensure that Ü […] Ű the Ü registration
shall take place Ű Ü […] Ű no later than 6 working days after the request is
made. Ű
Ü Member
States shall Ü ensure that
those Ű Ü […] Ű other authorities which are likely to receive
requests for international protection Ü such
as Ű Ü […] Ű police, border guards, immigration authorities and
personnel of detention facilities Ü […] Ű have
the relevant information and that their personnel receive Ü […] Ű instructions Ü to inform
applicants where and how applications for international protection may be
lodged Ű . Ű
Ü […] Ű
Ü […] Ű
Ü 2 Ű Ü […] Ű. Ü […] Ű Member
States shall ensure that Ü a person who has made a request for international protection has an
effective opportunity to lodge his/her application as soon as possible. Where the
applicant does not avail himself/herself of this opportunity, Ü Member
States may apply Ű Ü […] Ű Article 28 of
this Directive Ü accordingly Ű . Ű
Ü 3. Member
States may require that applications for international protection be lodged in
person and/or at a designated place, without prejudice to Ü paragraph Ű Ü […] Ű 2 Ü […] Ű . Ű
Ü 4. Without
prejudice to paragraph 3, Ü an application for
international protection shall be deemed to have been lodged with the relevant
competent authorities once Ű
Ü (a) Ű Ü […] Ű a
form submitted by the applicant Ü , Ű or
Ü (b) where
Ü […] Ű foreseen in national law, Ü […] Ű Ű Ü […] Ű an official Ű Ü […] Ű report Ü […] Ű
has reached the Ü relevant Ű Ü competent Ű Ü […] Ű authorities of the Member State concerned Ü […] Ű . Ű Ü […] Ű
Ü […] Ű
Ü […] Ű
Ü 5. Ű Ü […] Ű Ü […] Ű. Where Ü the
simultaneous Ű Ü […] Ű request Ü for Ű international protection Ü by a large
number of third country nationals or stateless persons Ű Ü […] Ű makes it Ü very
difficult Ű Ü […] Ű in practice to respect the Ü […] Űtime limit laid down in paragraph Ü 1 Ű Ü […] Ű Ü […] Ű, Member States may provide for that time limit to be extended to Ü […] Ű Ü 10 Ű working days.
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 17(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 application for asylum 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.
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Article 7
Applications made on
behalf of dependants or minors
1.2. Member States shall ensure
that each adult having legal capacity has the right to make an application
for đ international protection ď asylum on his/her own behalf.
2.3. 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. đ Before consent is requested, each Ü dependant Ű adult among these persons shall be informed in private of relevant
procedural consequences and of his or her right to make a separate application
for international protection. ď
3. Member
States shall ensure that a minor has the right to make an application for
international protection either on his/her own behalf, if he/she has the legal
capacity to act in procedures according to the national law of the Member State
concerned, or through his/her parents or other adult family members, or an
adult responsible for him/her, whether by law or by national practice of the
Member State concerned, or Ü through Ű a representative.
4. Member
States shall ensure that the appropriate bodies referred to in Article 10 of
Directive 2008/115/EC of the European Parliament and of the Council have the right to lodge an application for international protection on
behalf of an unaccompanied minor if, on the basis of an individual assessment
of his/her personal situation, those bodies are of the opinion that the minor
may have protection needs pursuant to Directive […/…/EU] [the Qualification
Directive].
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5.4. 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 25 17 (1)(a);
(c) the cases in which the
lodging of an application for đ international protection ď asylum is deemed to constitute also the lodging of an
application for đ international protection ď asylum for any unmarried minor.
Article 8
Information and
counselling at border crossing points and in detention facilities
1. Member States shall ensure that information on the possibility to
request international protection is available in detention facilities and at
border crossing points, including transit zones, at external borders Ü , in
response to an enquiry from the third country national or stateless person in
this respect Ű. Ü In these detention
facilities and border areas, Ű Member States shall provide interpretation arrangements to the extent
necessary to facilitate access to Ü the Ű procedure Ü concerning
international protection Ű Ü […] Ű.
2. Member
States shall ensure that organisations Ü and
persons Ű providing advice and counselling to applicants for international
protection have access to the Ü applicants
present at Ű border crossing points, including transit zones, at external borders.
Member States may provide for rules covering the presence of such organizations
Ü and
persons Ű in these areas Ü and in
particular that access is subject to an agreement with the competent
authorities of the Member State. Ű Ü Ü […] Ű Ü The rules
may also impose Ű limitations
Ü […] Ű Ü due to
the Ű security,
public order and administrative management of Ü […] Ű Ü the
area Ű concerned
Ű Ü […] Ű.
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Article 9 7
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 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 32 and 34, đ a person makes ď a subsequent
application đ referred to in Article 41ď 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, đ with the exception of the country of
origin of the applicant concerned, ď Ü unless this is not
the country in which he/she fears persecution and/or serious harm Ű or to international criminal courts
or tribunals.
3. A
Member State may extradite an applicant to a third country pursuant to
paragraph 2 only where the competent authorities are satisfied that an
extradition decision will not result in direct or indirect refoulement in violation of international obligations of the Member State.
Article 10 8
Requirements for the examination of applications
1. Without prejudice to Article 23(4)(i), Member States shall ensure that
applications for đ international protection ď asylum are neither rejected nor excluded from
examination on the sole ground that they have not been made as soon as
possible.
2. When
examining applications for international protection, the determining authority
shall first determine whether the applicants qualify as refugees and, if not,
determine whether the applicants are eligible for subsidiary protection.
3.2. Member States shall ensure
that decisions by the determining authority on applications for đ international protection ď 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 the đ European Asylum Support Office and the ď 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 decisions have the knowledge with respect to relevant
standards applicable in the field of asylum and refugee law; .
(d) the personnel examining applications and
taking decisions Ü […] Űhave the possibility to seek advice, whenever
necessary, from experts on particular issues, such as medical, cultural,
religious, child-related or gender issues.
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4.3. 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 3 2(b), necessary for the fulfilment of their
task.
5.4. Member
States đ shall ď may provide for rules concerning the
translation of documents relevant for the examination of applications.
Article 11 9
Requirements for a decision by the determining authority
1. Member
States shall ensure that decisions on applications for đ international protection ď asylum are given in writing.
2. Member
States shall also ensure that, where an application is rejected đ with regard to refugee status and/or subsidiary protection
status ď, 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 refugee status in a 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
Directive 2004/83/EC. In these cases, Member States shall ensure that the
reasons for not granting 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 a decision
where the applicant has been provided with this information at an earlier stage
either in writing or by electronic means accessible to the applicant.
3. For
the purposes of Article 7(2) 6(3), and whenever the application is
based on the same grounds, Member States may take one single decision, covering
all dependants đ , unless this would lead to the disclosure of particular
circumstances of an applicant which could jeopardize his/her interests, in
particular in cases involving gender, sexual orientation, gender identity
and/or age based persecution ď.
Article 12 10
Guarantees for applicants for đ international protection ď asylum
1. With
respect to the procedures provided for in Chapter III, Member States shall
ensure that all applicants for đ international protection ď asylum enjoy the following guarantees:
(a) they shall be informed
in a language which they đ understand or ď Ö are Ő 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
cooperating with the authorities. They shall be informed of the time‑frame,
as well as the means at their disposal for fulfilling the
obligation to submit the elements as referred to in Article 4 of Directive […/…/EU]
[the Qualification Directive] 2004/83/EC đ , as well as of the consequences of an explicit or implicit
withdrawal of the application ď. This information shall be given in
time to enable them to exercise the rights guaranteed in this Directive and to
comply with the obligations described in Article 13 11;
(b) they shall 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 Ö is Ő to be interviewed as referred to in
Articles 14, 15, 12 and 13 đ 16, 17 and 34 ď and appropriate communication
cannot be ensured without such services. In this case and in other cases where
the competent authorities call upon the applicant, these services shall be paid
for out of public funds;
(c) they shall not be
denied the opportunity to communicate with the UNHCR or with any other
organisation đ providing legal advice or counselling to applicants for
international protection in accordance with the national law of ď working on behalf of the UNHCR in the territory
of the Member State pursuant to an agreement with that Member State;
(d) they
and, if applicable, their legal advisers Ü in acordance
with Article 23(1) Ű shall not be denied access to the information referred to in Article
10(3)(b), where the determining authority Ü has taken Ű Ü […] Űthat information into consideration for the purpose of taking a decision
on their application;
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(ed) they
shall be given notice in reasonable time of the decision by the determining
authority on their application for đ international protection ď 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 đ international protection ď asylum;
(fe) they
shall be informed of the result of the decision by the determining authority in
a language that they đ understand or ď Ö are Ő 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 11(2) 9(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 referred to in paragraph 1(b), (c)
đ , (d) ď and (e d) of this Article.
Article 13 11
Obligations of the applicants for đ international protection ď asylum
1. đ Member States shall impose upon applicants for international
protection the obligation to cooperate with the competent authorities with a
view to establishing their identity and other elements referred to in Article
4(2) of Directive […/…/EU] [the Qualification Directive]. ď Member States may impose upon
applicants for
asylum đ other ď 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 before them 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;
(c) applicants for asylum are required to inform the competent
authorities of their current place of residence or address and of any changes
thereof 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 đ Ü . Whenever
possible, a search of the applicant's person shall be Ű Ü […] Ű carried out by a person of the same sex ď ;
(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 14 12
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 đ international protection ď asylum with a person competent under national law to
conduct such an interview. đ Interviews on the substance of the application for international
protection shall be conducted by the personnel of the determining
authority. ď
Ü This
paragraph shall be without prejudice to Article 42(2)(b). Ű
Member States may also
give the opportunity of a personal interview to each dependant adult referred
to in Article 6(3).
Where a large number of third country nationals or
stateless persons simultaneously request international protection, which makes
it impossible in practice for the determining authority to conduct timely
interviews on the substance of an application, Member States may provide that
the personnel of another authority be temporarily involved in conducting such
interviews. In such cases, the personnel of that authority shall receive in
advance the necessary training which
shall include the elements listed in Article 6(4)(a) to (e) of Regulation (EU)
No 439/2010 and in Article 18(5) of this Directive.
Where a person has made an application for
international protection on behalf of his/her dependants, each adult concerned
shall be given the opportunity of a personal interview.
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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 on the substance of the application may be omitted where:
(a) the determining
authority is able to take a positive decision đ with regard to refugee status ď 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 completing
his/her application and submitting the essential information regarding the
application, in terms of Article 4(2) of 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 to be unfounded in 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
(b) it is not reasonably practicable, in particular
where the đ determining ď 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, đ the determining authority shall consult a medical expert to
establish whether the condition that makes the applicant unfit or unable to be
interviewed is temporary or Ü of long-term
nature Ű Ü […] Űď Member States may require a medical or
psychological certificate.
Where Ö a
personal interview is not conducted Ő the Member State does not provide
the applicant with the opportunity for a personal interview pursuant to point
(b) this
paragraph, or
where applicable, Ö with Ő to the dependant, reasonable efforts shall be
made to allow the applicant or the dependant to submit further information.
3.4. 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 đ international protection ď asylum.
4.5.. 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.
5.6. Irrespective
of Article 28(1) 20(1), Member States, when deciding on the
application for đ international protection ď asylum, may take into account the fact that the
applicant failed to appear for the personal interview, unless he/she had good
reasons for the failure to appear.
Article 15 13
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 shall take place under conditions which ensure appropriate
confidentiality.
3. Member
States shall take appropriate steps to ensure that personal interviews are
conducted under 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 Ü relevant Ű personal đ and ď or general circumstances surrounding the
application, including the applicant's cultural origin đ , gender, sexual orientation, gender identity ď or vulnerability Ü […] Ű, insofar as it is possible to do so; and
(b) wherever
possible, provide for the interview with the applicant to be conducted by a
person of the same sex if the applicant concerned so requests Ü unless Ű Ü Ü […] Ű the request is Ü […] Űbased on
discriminatory Ü grounds Ű Ü […] ŰŰ ;
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(cb) select
Ü an Ű Ü […] Ű interpreter who is able to ensure
appropriate communication between the applicant and the person who conducts the
interview. The communication Ö shall Ő need not
necessarily take
place in the language preferred by the applicant for asylum Ö unless Ő if there is another language which
he/she may reasonably be supposed
to understands and in which he/she is able to
communicate đ clearly ď. đ Wherever possible, Member States shall provide an interpreter of
the same sex if the applicant so requests Ü unless Ű Ü Ü […] Ű the request is Ü […] Űbased on
discriminatory Ü grounds Ű Ü […] ŰŰ ď;
(d) ensure
that the person who conducts an interview on the substance of an application for
international protection does not wear a military or law enforcement uniform;
(e) ensure
that interviews with minors are conducted in a child appropriate manner.
4. Member
States may provide for rules concerning the presence of third parties at a
personal interview.
5. This
Article is also applicable to the meeting referred to in Article 12(2)(b).
Article 16
Content of a personal
interview
When conducting a personal interview on the
substance of an application for international protection, the determining
authority shall ensure that the applicant is given an adequate opportunity to
present elements needed to substantiate the application in accordance with
Article 4 of Directive […/…/EU] [the Qualification Directive] as completely as
possible. This shall include the opportunity to give an explanation regarding
elements which may be missing and/or any inconsistencies or contradictions in
his/her statements.
Article
14
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 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 of 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 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 12(2)(b).
Article 17
Report and recording of
personal interviews
1. Member
States shall ensure that a thorough report containing all substantial elements
is made of every personal interview.
2. Member
States may provide for audio or audio-visual recording of the personal
interview. In this case, Member States shall ensure that
the recording of the personal interview is Ü available in
connection with the applicant's file Ű Ü […] Ű.
3. Member
States shall ensure that the applicant has the opportunity to make comments
and/or provide clarifications with regard to any mistranslations or misconceptions
appearing in the report, at the end of the personal interview or within a
specified time limit before the determining authority takes a decision. To that
end, Member States shall ensure that the applicant is fully informed of the
content of the report, with the assistance of an interpreter if necessary.
Member States shall then request the Ü acknowledgement Ű Ü […] Űof the applicant on the content of the report.
Member States need not request the applicant's Ü acknowledgement Ű Ü […] Űon the content of the report if the interview is recorded in accordance
with paragraph 2 and if the recording is admissible as evidence in procedures
referred to in Chapter V.
4. Where
an applicant refuses to Ü acknowledge Ű Ü […] Űthe content of the report, the reasons for this refusal shall be
entered into the applicant's file.
The refusal of an applicant to Ü acknowledge Ű Ü […] Űthe content of the report shall not prevent the determining
authority from taking a decision on the application.
5. Applicants
shall not be denied access to the report and, where applicable,
the recording, before the determining authority takes a decision. Ü Where the
application is determined in the framework provided for in Article 31(6),
Member States may provide that access to the report is granted at the same time
as the decision is made. Ű
Article 18
Medical Ü examination Ű Ü […] Ű
1. Ü Where the
determining authority deems it relevant for the assessment of the applicant's
request for international protection, in accordance with Article 4 of Directive
[…/…./EU][Qualification Directive], Ű Ü […] Ű Ü Member
States Ü […] Ű shall Ü , subject to
the applicant's consent, Ű Ü Ü […] Ű arrange Ü […] Ű for a medical
examination Ű Ü of him/her Ü concerning
signs that might result from past persecution or serious harm Ű Ü […] Ű Ű Ü […] Ű.Ü Alternatively,
Member States may Ü provide
that Ű Ü […] Ű the
applicant Ü arranges Ű Ü […] Ű for such a
medical examination.
Ű The medical Ü examinations
mentioned in subparagraph 1 Ű Ü […] Űshall be carried out by qualified medical professionals Ü and the
result thereof Ű Ü […] Ű shall be
submitted to the determining authority Ü as soon as
possible Ű. Ü Member
States may designate the medical professionals who can carry out these medical
examinations. Ű Ü The
applicant's refusal to undergo such a medical examination shall not prevent the
determining authority from taking a decision on the application for
international protection. Ű
Ü Medical
examinations carried out in accordance with this paragraph shall be paid for
out of public funds. Ű
2. Ü Member
States shall Ü […] Ű Ü , whenever
relevant, Ű Ü inform
applicants that they may on their own initiative and at their own cost arrange
for Űa medical
examination concerning signs that might result from past persecution or serious
harm Ü […] ŰŰ Ű.
Ü […] Ű
Ü […] Ű
Ü […] Ű
Ü […] Ű
Ü 3 Ű Ü […] Ű. The
results of medical examinations referred to in paragraphs 1 and 2 shall be
assessed by the determining authority along with other elements of the
application.
Article 19
Provision of legal and
procedural information free of charge in procedures at first instance
1. Ü In
procedures at first instance provided for in Chapter III Ű Member States shall ensure that Ü […] Ű, on request, Ü applicants
are provided with legal and procedural information free of charge Ű Ü […] Ű. This shall include, at least, the provision of information on the
procedure in the light of the applicant's particular circumstances. Ü […] Ű Ü In Ű the
event of a negative decision Ü , Member
States shall also, on request, provide applicants with information - in
addition to that given in accordance with Articles 11(2) and 12(1)(f) - in
order to clarify the reasons of such decision and explain how it can be
challenged Ű Ü […] Ű.
2. The
provision of legal and procedural information free of charge shall be subject
to the conditions laid down in Article 21.
Article 20
Free legal assistance and
representation in appeals procedures
ę 2005/85/EC article 15(2)
đ new
1. In the event of a negative decision by the
determining authority,Member States shall ensure that free legal assistance and/or representation is granted on request subject to the provisions of paragraph 3 đ in appeals procedures provided for in Chapter V. This shall
include, at least, the preparation of the required procedural documents and
participation in the hearing before the court or tribunal of first instance on
behalf of the applicant. ď
2. Member
States may also provide free legal assistance and/or representation in
procedures at first instance provided for in Chapter III. In such cases,
Article 19 shall not apply.
3. Member
States may provide that free legal assistance and representation not be granted
if the applicant's appeal is considered by a court or tribunal Ü or other
competent authority Ű to have no tangible prospect of success.
Ü Where a
decision not to grant free legal assistance and representation pursuant to this
paragraph is taken by an authority which is not a court or tribunal, Member
States shall provide the right to an effective remedy before a court or
tribunal against this decision. Ű
In Ü the
application of this paragraph Ű Ü […] Ű , Member States shall ensure that legal
assistance and representation is not arbitrarily restricted and that the
applicant's effective access to justice is not hindered.
4. Free
legal assistance and representation shall be subject to the conditions laid
down in Article 21.
Article 21
Conditions for the
provision of legal and procedural information free of charge
and free legal assistance and representation
1. Member
States may provide that the legal and procedural information referred to in
Article 19 Ü is Ű Ü […] Űprovided by non-governmental organisations, government officials, or
specialised services of the State.
Ü Free legal
assistance and representation referred to in Article 20 shall be provided by
such persons as admitted or permitted under national law. Ű
ę 2005/85/EC article 15
(adapted)
đ new
Ü Council
1. Member
States shall allow applicants for asylum the opportunity, at their own cost, 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. 3. Member
States may provide in their national legislation that đ the provision of legal and procedural information free of charge
referred to in Article 19 and ď free legal assistance and/or representation Ö referred to in Article
20 Ő Ö are Ő is granted:
(a) only for procedures before a court or
tribunal in accordance with Chapter V and not for any onward appeals or
reviews provided for under national law, including a rehearing of an appeal
following an onward appeal or review; and/or
(ab) only
to those who lack sufficient resources; and/or
(bc) only
Ö through the services provided
by Ő to legal advisers or other counsellors
specifically designated by national law to assist and/or represent applicants
for đ international protection ď asylum. and/or
Ü and that
free legal assistance and representation referred to in Article 20 is
granted Ű
Ü (c) only for first time appeals procedures in
accordance with Chapter V before a court or tribunal and not for any onward
appeals or reviews provided for under national law including rehearings or
reviews of appeals. Ű
(d) only if the appeal or review is likely to
succeed.
Member States shall ensure that legal assistance and/or
representation granted under point (d) is not arbitrarily restricted.
3.4. Rules
concerning the modalities for filing and processing requests for đ legal and procedural information under Article 19 and ď legal assistance and/or representation Ö under Article 20 Ő may be provided by Member States.
4.5. Member
States may also:
(a) impose monetary and/or
time limits on the đ provision of legal and procedural information free of charge
referred to in Article 19 and the ď provision of free legal assistance
and/or representation Ö referred to in Article
20 Ő , provided that such limits do not
arbitrarily restrict access to đ the provision of legal and procedural information and ď legal assistance and/or representation;
(b) provide that, as
regards fees and other costs, the treatment of applicants shall not be more
favourable than the treatment generally accorded to their nationals in matters
pertaining to legal assistance.
5.6. 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.
ę 2005/85/EC article 15(1)
(adapted)
đ new
Article 22
Right to legal assistance
and representation at all stages of the procedure
1. Member States shall allowApplicants applicants for asylum Ö shall be given Ő the opportunity, at their own cost, to consult Ö, at their own cost, Ő 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 đ for international protection, at all stages of the procedure,
including following a negative decision ď .
2. Member
States may allow non-governmental organisations to provide legal assistance
and/or representation to applicants for international protection in procedures
provided for in Chapter III and Chapter V.
ę 2005/85/EC (adapted)
đ new
Article 23 16
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, and who assists or represents an
applicant for đ international protection ď asylum under the terms of national law, shall enjoy
access to Ö the Ő such information in the applicant's file
đ upon which a decision is or will be made ď 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 person(s) 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 for of đ international protection ď asylum by the competent authorities of the Member
States or the international relations of the Member States would be compromised.
In these cases, Ö Member
States shall: Ő
(a) Ü make access
to the information or sources in question available to the authorities referred
to in Chapter V; Ű Ü […] Ű
ę 2005/85/EC (adapted)
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(b) Ü establish in
national law procedures guaranteeing that the applicant's rights of defence are
respected. In this respect, Member States may in particular grant access to the information or sources in question to a legal
adviser or counsellor who has undergone a security check, insofar as the
information is relevant to the examination of the application or taking a decision
to withdraw international protection Ű Ü […] Ű;
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 đ , in accordance with Article 10(4) and Article 18(2)(b) and (c) of
Directive […/…/EU] [the Reception Conditions Directive] ď. Member States may only limit the possibility of
visiting 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 in order 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 shall allow the applicant to bring to the personal interview a legal
adviser or other counsellor admitted or permitted as such under national
law.
4.3. 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 25(1)(b) 17(1)(b).
4. Member
States may provide that the applicant is allowed to bring with him/her to the
personal interview a legal adviser or other counsellor admitted or permitted 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 a legal adviser or other counsellor shall not prevent the competent
authority from conducting the personal interview with the applicant đ , without prejudice to Article 25(1)(b) ď.
Article 24
Applicants in need of
special procedural guarantees
1. Ü […] Ű Member States shall Ü endeavour to
identify applicants in need of Ű Ü […] Ű special procedural Ü guarantees
before a first instance decision is taken. Ű Ü […] Ű
[…] Ű
2. Member States shall Ü ensure that Ü […] Ű Ü where
applicants have been identified to be in need of special procedural guarantees,
they are provided with adequate support in order to allow them to benefit from
the rights and comply with the obligations of this Directive Ű Ü […] Ű throughout Ü the duration
of Ű the asylum
procedure Ü […] Ű.
Ü […] Ű
Ü […] Ű.
ę 2005/85/EC (adapted)
đ new
Article 25 17
Guarantees for unaccompanied minors
1. With
respect to all procedures provided for in this Directive and without prejudice
to the provisions of Articles 14 đ , 15, 16, ď and
17 12
and 14, Member
States shall:
(a) Ö take
measures Ő as soon as possible take measures to ensure that a representative
represents and/or assists the unaccompanied minor đ to enable him/her to
benefit from the rights and comply with the obligations provided for in this
Directive ď with respect to the examination of the
application. đ The representative shall have the necessary expertise in the field
of childcare and shall perform
his/her duties in accordance with the principle of the best interests of the
child. ď Ö The Ő This representative can also be the representative
referred to in Directive […/…/EU] [the Reception Conditions
Directive] Article 19
of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the
reception of asylum seekers[6];
(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 đ ensure that ď allow Ö a Ő the representative đ and/or a legal adviser or other
counsellor admitted as such under national law are ď to be present at that interview and đ have an opportunity ď 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 đ 18 years ď 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 the laws and regulations in force on 1
December 2005, 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.
3.4. Member
States shall ensure that:
(a) if an unaccompanied
minor has a personal interview on his/her application for đ international protection ď asylum as referred to in Articles 14,
15, đ 16, ď 17,
and đ 34 ď 12,
13 and 14, that
interview is conducted by a person who has the necessary knowledge of the
special needs of minors;
(b) an official with the
necessary knowledge of the special needs of minors prepares the decision by the
determining authority on the application of an unaccompanied minor.
4. Unaccompanied
minors, together with the representative, shall be provided, free of charge,
with legal and procedural information as referred to in Article 19 also for the
procedures for the withdrawal of international protection Ü […] Ű provided for in Chapter IV.
ę 2005/85/EC
đ new
Ü Council
5. Member
States may use medical examinations to determine the age of unaccompanied
minors within the framework of the examination of an application for đ international protection ď asylum đ where, following general statements or other relevant Ü indications Ű Ü […] Ű, Member States Ü […] Ű have doubts concerning the applicant's age. If Ü […] Űafter the medical examination, Member States Ü are still in
doubt concerning the applicant's age, they Ű shall assume that the applicant is a minor ď.
Any medical examination shall be performed in full
respect of the individual's dignity, selecting the Ü least Ű Ü […] Űinvasive Ü examination Ű Ü […] Ű.
ę 2005/85/EC (adapted)
đ new
Ü Council
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 đ international protection ď asylum, and in a language Ü that Ű Ü […] Ű they may reasonably be supposed to understand Ü or are
reasonably supposed to understand Ű, of the possibility that their age
may be determined by 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 đ international protection ď 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 Ö being carried out Ő to determine the age of the minors
concerned; and
(c) the decision to reject
an application for đ international protection ď 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 đ international protection ď asylum.
Ü […] Ű
7. 6. The
best interests of the child shall be a primary consideration for Member States
when implementing this Article.
ę 2005/85/EC (adapted)
đ new
Ü Council
Article 26 18
Detention
1. Member
States shall not hold a person in detention for the sole reason that he/she is
an applicant for đ international protection ď asylum. đ Grounds and conditions of detention as well as guarantees
available to detained applicants for international protection shall be in
accordance with Directive […/…/EU] [the Reception Conditions Directive] ď.
2. Where
an applicant for đ international protection ď asylum is held in detention, Member States
shall ensure that there is a possibility of speedy judicial review đ in accordance with Directive […/…/EU] [the Reception Conditions
Directive] ď.
Article 27 19
Procedure in Ö the Ő case of withdrawal of the
application
1. Insofar as Member States provide for
the possibility of explicit withdrawal of the application under national law, when an applicant for asylum explicitly withdraws his/her
application for đ international protection ď asylum, Member States shall ensure that
the determining authority takes a decision to either discontinue the
examination or 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 enters a notice in the applicant's file.
Article 28 20
Procedure in the case of implicit withdrawal or
abandonment of the application
1. When
there is reasonable cause to consider that an applicant for đ international protection ď asylum has implicitly withdrawn or
abandoned his/her application for asylum, Member States shall ensure that the determining authority takes a
decision to either discontinue the examination or đ, provided that the determining authority considers the application to
be unfounded on the basis of an adequate examination of its substance in line
with Article 4 of Directive […/…/EU] [the Qualification Directive] Ü […] Ű, ď Ü […] Ű reject
the application on the basis that the applicant has not established an entitlement
to refugee status in accordance with Directive 2004/83/EC. Ü […] Ű
Member
States may assume that the applicant has implicitly withdrawn or
abandoned his/her application for đ international protection ď 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 Directive […/…/EU] [the Qualification
Directive] 2004/83/EC
or has not appeared for an personal interview as provided for in Articles 14, 15, đ 16 ď and 17 12, 13 and 14 Ö of this Directive Ő , unless the applicant demonstrates
within a reasonable time that his/her failure was due to circumstances beyond
his/her 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 purposes 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 of this
Article is taken, is entitled to request that his/her case be reopened đ or entitled to make a new application which shall not be subject
to the procedure referred to in Articles 40 and 41 ď , unless the request is examined
in accordance with Articles 32 and 34.
Member States
may provide for a time limit đ of at least Ü 6
months Ű Ü […] Űď after which the applicant's case
can no longer be re‑opened đ or the new application may be treated as a subsequent application
and subject to the procedure referred to in Articles 40 and 41. ď Ü Member States may provide
that the applicant's case may be reopened only once. Ű.
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 where the it was discontinued.
Ü […] Ű
ę 2005/85/EC (adapted)
đ new
Ü Council
Article 29 21
The role of UNHCR
1. Member
States shall allow the UNHCR:
(a) to have access to
applicants for đ international protection ď asylum, including those in detention đ , at the border and ď Ö in the Ő and in airport or port transit zones;
(b) to have access to
information on individual applications for đ international protection ď 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 đ international protection ď 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 concerned on behalf of the UNHCR pursuant to an agreement with
that Member State.
Article 30 22
Collection of information on individual cases
For the
purposes of examining individual cases, Member States
shall not:
(a) directly disclose information regarding individual
applications for đ international protection ď asylum, or the fact that an application has been
made, to the alleged actor(s) of persecution đ or serious harm ď of the
applicant for asylum;
(b) obtain
any information from the alleged actor(s) of persecution đ or serious harm ď 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 31 23
Examination procedure
1. Member
States shall process applications for đ international protection ď 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 Ü and within
six months after the application is lodged Ű.
Ü In cases in
which an application is subject to the procedure laid down in Regulation (EU)
[…/…] [the Dublin Regulation], the time limit of six months shall start to run
from the moment the Member State responsible for its examination is determined
in conformity with that Regulation, the applicant is on the territory of that
Member State and has been taken in charge by the competent authority. Ű
3. Ü […] Ű
Ü […] Ű Member States may extend Ü that Ű Ü […] Ű Ü […] Ű time limit Ü of six
months Ű for a period not exceeding a further Ü twelve Ű Ü […] Űmonths, where:
(a) complex
issues of fact and Ü /or Ű law are involved;
(b) a
large number of third country nationals or stateless persons simultaneously
request international protection which makes it Ü very
difficult Ű Ü […] Ű in practice to conclude the procedure within
the six-month time-limit;
(c) where
the delay can clearly be attributed to the failure of the applicant to comply
with his/her obligations under Article 13.
Member States may postpone concluding the procedure
where the determining authority cannot reasonably be expected to decide within
the time limits laid down in this paragraph due to an uncertain situation in
the country of origin which is expected to be temporary.
4. Member
States shall ensure that, where a decision cannot be taken within
six months, the applicant concerned shall either:
(a) be informed of the
delay; đ and ď or
(b) receive, upon his/her
request, information on the đ reasons for the delay and the ď 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.
Ü […] Ű
ę 2005/85/EC
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5. 3. Member
States may prioritise or
accelerate any an examination đ of an application for international protection ď in accordance with the basic
principles and guarantees of Chapter II Ü in particular Ű , including where the application is likely to
be well founded or where the applicant has special needs:
(a) where
the application is likely to be well founded;
(b) where
the applicant is vulnerable within the meaning of Article 22 of Directive
[…/…/EU] [the Reception Conditions Directive], or is in need of special
procedural guarantees, in particular unaccompanied minors Ü […] Ű.
ę 2005/85/EC (adapted)
đ new
Ü Council
6. 4. Member
States may also provide
that an examination procedure in accordance with the basic principles and guarantees
of Chapter II be prioritised or accelerated đ and/or conducted at the border in
accordance with Article 43 ď if:
(a) the applicant, in
submitting his/her application and presenting the facts, has only raised issues
that are not relevant or of
minimal relevance
to the examination of whether he/she qualifies as a refugee đ or a person eligible for subsidiary protection ď by virtue of Directive […/…/EU]
[the Qualification Directive] 2004/83/EC; or
(b) the applicant clearly does not qualify as a
refugee or for refugee status in a Member State under Directive 2004/83/EC; or
(c) the application for asylum is considered to
be unfounded:
(bi) because the
applicant is from a safe country of origin within the meaning of this
Directive Articles 29,
30 and 31, or
(ii) because the country
which is not a Member State, is considered to be a safe third country for the
applicant, without prejudice to Article 28(1); or
(cd) 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
Ü […] Ű
(e) the applicant has filed another application
for asylum stating other personal data; or
(df) the applicant has not produced information
establishing with a reasonable degree of certainty his/her identity or
nationality, or
it is likely that, in bad faith, Ö the applicant Ő he/she has destroyed or disposed of an
identity or travel document that would have helped establish his/her identity
or nationality; or
(eg) the applicant has made Ü clearly
inconsistent and contradictory, Ű inconsistent, contradictory, đ clearly false or obviously ď improbable or insufficient representations đ which contradict sufficiently verified country-of-origin
information, ď Ö thus making Ő which make his/her claim clearly unconvincing
in relation to đ whether he/she qualifies as a refugee or a person eligible for
subsidiary protection by virtue of ď his/her having being the object of persecution
referred to in Directive
[…/…/EU] [the Qualification Directive] Directive 2004/83/EC; or
Ü (e1) The
applicant has introduced a subsequent application for international protection
that is not inadmissable in accordance with Article 40(5); or Ű
(h) the applicant has submitted a subsequent
application which does not raise any 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
(fj) 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 has failed without good reason
to comply with obligations referred to in Article 4(1) and (2) of
Directive 2004/83/EC or in Articles11(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
Ü (f1) 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 Ű
Ü (f2) the
applicant refuses to comply with an obligation to have his/her fingerprints
taken in accordance with Regulation (EU) […/…] [EURODAC Regulation], or Ű
(gm) the applicant đ may for serious reasons be considered ď is a danger to the national security or public
order of the Member State, or the applicant has been forcibly expelled for
serious reasons of public security Ö or Ő 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 6(4)(c) applies, after the application of the
parents or parent responsible for the minor has been rejected and no relevant
new elements were raised with respect to his/her particular circumstances or to
the situation in his/her country of origin.
7. Member
States shall lay down reasonable time limits for the adoption of a decision in
the procedure at first instance pursuant to paragraph 6 Ü […] Ű.
8. The
fact that an application for international protection was submitted after an
irregular entry into the territory or at the border, including in transit
zones, Ü […] Ű shall not per se entail an automatic recourse to
the procedure at first instance pursuant to paragraph 6.
Article
24
Specific procedures
1. Member
States may provide for the following specific procedures derogating from the
basic principles and guarantees of Chapter II:
(a) a preliminary
examination for the purposes of processing cases considered within the
framework set out in Section IV;
(b) procedures for the
purposes 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.
ę 2005/85/EC article 28
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Article
32
Unfounded applications
1. Without
prejudice to Articles 27 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 đ international protection ď refugee status pursuant to
Directive […/…/EU] [the Qualification Directive] 2004/83/EC.
2. In the cases mentioned in
Article 23(4)(b) and In in cases of unfounded applications for asylum in which any of the circumstances
listed in Article 31(6) đ (a) to (f Ü 2 Ű ) ď 23(4)(a) and (c) to (o) apply, Member States may also consider an application as manifestly
unfounded, where it is defined as such in the national legislation.
ę 2005/85/EC
đ new
Ü Council
Section
II
Article 33 25
Inadmissible applications
1. In
addition to cases in which an application is not examined in accordance with
Regulation (EU) No […/…] [the Dublin Regulation] (EC)
No 343/2003,
Member States are not required to examine whether the applicant qualifies đ for international protection ď as a refugee in accordance with Directive
[…/…/EU] [the Qualification Directive] 2004/83/EC where an
application is considered inadmissible pursuant to this Article.
2. Member
States may consider an application for đ international protection ď asylum as inadmissible đ only ď pursuant to this Article if:
(a) another Member State
has granted Ü international
protection Ű Ü […] Ű;
(b) a country which is not
a Member State is considered as a first country of asylum for the
applicant, pursuant to Article 35 26;
(c) a country which is not
a Member State is considered as a safe third country for the applicant,
pursuant to Article 38 27;
(d) the applicant is allowed to remain in the
Member State concerned on some other grounds 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 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 status pursuant to point (d);
(df) đ the application is a subsequent
application, where no new elements or findings relating to the
examination of whether the applicant qualifies as a refugee or a person
eligible for subsidiary protection by virtue of Directive […/…/EU] [the
Qualification Directive] have arisen or have been presented by the
applicant ď the applicant has lodged an identical
application after a final decision;
(eg) a
dependant of the applicant lodges an application, after he/she has in
accordance with Article 7(2) 6(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, which justify a separate application.
Article 34
Special rules on an
admissibility interview
1. Member
States shall allow applicants to present their views with regard to the
application of the grounds referred to in Article 33 in their particular
circumstances before a decision to consider an application inadmissible is
taken. To that end, Member States shall conduct a personal interview on the
admissibility of the application. Member States may make an exception only in
accordance with Article 42 in the case of a subsequent application.
Ü […] Ű
Section
III
Article 35 26
The concept of first country of asylum
A country
can be considered to be a first country of asylum for a particular applicant
for đ international protection ď 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
otherwise enjoys 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 đ international protection ď asylum, Member States may take into
account Article 38(1) 27(1). đ The applicant shall be allowed to challenge the application of the
first country of asylum concept in his/her particular circumstances. ď
Ü […] Ű
Ü […] Ű
Ü […] Ű
ę 2005/85/EC (adapted)
đ new
Article 36 31
The safe country of origin concept
1. A
third country designated as a safe country of origin in accordance with Ö this Directive Ő either
Article 29 or 30
may, 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 and in terms of his/her
qualification as a refugee đ or a person eligible for subsidiary protection ď in accordance with Directive […/…/EU] [the
Qualification 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 29.
2. 3. Member
States shall lay down in national legislation further rules and modalities for
the application of the safe country of origin concept.
ę 2005/85/EC article 30
đ new
Article
37
National designation of third countries
as safe countries of origin
1. Without prejudice to
Article 29,Member States may retain or introduce legislation that allows, in accordance
with Annex III, 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 đ international protection ď 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 from paragraph 1, Member States may retain legislation in force
on 1 December 2005 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
Directive 2004/83/EC; nor
(b) torture or inhuman or degrading treatment or
punishment.
3. Member
States may also retain legislation in force on 1 December 2005 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.
2. Member
States shall ensure a regular review of the situation in third countries
designated as safe in accordance with this Article.
ę 2005/85/EC article 30
đ new
3.5. 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, đ the European Asylum Support Office, ď the UNHCR, the Council of Europe
and other relevant international organisations.
4.6. Member
States shall notify to the Commission the countries that are designated as safe
countries of origin in accordance with this Article.
ę 2005/85/EC article 27
đ new
Article
38
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 đ international protection ď 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;
(b) there
is no risk of serious harm as defined in Directive […/…/EU] [the Qualification
Directive];
ę 2005/85/EC article 27
đ new
(cb) the
principle of non‑refoulement in accordance with the Geneva Convention is
respected;
(dc) the
prohibition of removal, in violation of the right to freedom from torture and
cruel, inhuman or degrading treatment as laid down in international law, is
respected; and
(ed) 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 đ international protection ď asylum and the third country concerned on
the basis of 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 đ that the third country is not safe in his/her particular
circumstances ď he/she would be subjected to torture, cruel,
inhuman or degrading treatment or punishment. đ The applicant shall also be allowed to challenge the existence of
a connection between him/her and the third country in accordance with point
(a). ď
3. When
implementing a decision solely based on this Article, Member States shall:
(a) inform the applicant
accordingly; and
(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 đ international protection ď asylum 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.
ę 2005/85/EC article 36
đ new
Article
39
The European safe third country countries concept
1. Member
States may provide that no, or no full, examination of the asylum application for đ international protection ď and of the safety of the applicant
in his/her particular circumstances as described in Chapter II, shall take
place in cases where a competent authority has established, on the basis of the
facts, that the applicant for asylum đ international protection ď 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 purposes
of paragraph 1 where:
(a) it has ratified and
observes the provisions of the Geneva Convention without any geographical
limitations;
(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 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 a proposal from 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.
43. The
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.
54. When
implementing a decision solely based on this Article, the Member States
concerned shall:
(a) inform the applicant
accordingly; and
(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.
65. Where
the safe third country does not re-admit the applicant for asylum, Member States shall ensure that access to a
procedure is given in accordance with the basic principles and guarantees
described in Chapter II.
6. Member
States shall inform the Commission periodically of the countries to which this
concept is applied in accordance with the provisions of this Article.
7. Member
States which have designated third countries as safe countries in accordance
with national legislation in force on 1 December 2005 and on the basis of the
criteria in paragraph 2(a), (b) and (c), may apply paragraph 1 to these third
countries until the Council has adopted the common list pursuant to paragraph
3.
ę 2005/85/EC (adapted)
đ new
Section
IV
Article 40 32
Subsequent application
1. Where a person who has applied for đ international protection ď asylum in a Member State makes further
representations or a subsequent application in the same Member State, that
Member State đ shall ď 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 or abandoned 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.
2. 3. đ For the purpose of taking a decision on the admissibility of an
application for international protection pursuant to Article 33(2)(d), ď a A subsequent application for đ international protection ď 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) of this Article on this application has been reached, new elements or findings Ö have arisen or have been
presented by the applicant which relate Ő relating to the examination of whether Ö the applicant Ő he/she qualifies as a refugee đ or a person eligible for subsidiary protection ď by virtue of Directive […/…/EU]
[the Qualification Directive] 2004/83/EC have arisen or have
been presented by the applicant.
3.4. If, following the preliminary examination
referred to in paragraph 2 3 of this Article Ö concludes
that Ő new
elements or findings Ö have Ő arisen or Ö been Ő are presented by the applicant which significantly add to
the likelihood of the applicant qualifying as a refugee đ or a person eligible for subsidiary
protection ď by virtue of Directive Ö […/…/EU]
[the Qualification Directive] Ő 2004/83/EC, the application shall be further
examined in conformity with Chapter II. Ö Member States may also provide
for other reasons for a subsequent application to be further examined. Ő
5. Member
States may, in accordance with national legislation, further examine a
subsequent application where there are other reasons why a procedure has to be
re‑opened.
4.6. 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 2 and 3 3, 4 and 5 of this Article in the previous procedure, in particular by exercising
his/her right to an effective remedy pursuant to Article 46 39.
5. When
a subsequent application is not further examined pursuant to this Article, it
shall be considered inadmissible, in accordance with Article 33(2)(d).
ę 2005/85/EC (adapted)
đ new
6.7. The procedure referred to
in this Article may also be applicable in the case of:
(a) a
dependant who lodges an application after he/she has, in accordance with
Article 7(2) 6(3), consented to have his/her case be part of an
application made on his/her behalf đ , and/or ď
(b) đ an unmarried minor who lodges an application after an application
has been made on his/her behalf pursuant to Article 7(5)(c) ď .
In đ those cases ď this case, the preliminary examination referred to in
paragraph 2 3 of this Article will consist of examining whether there are
facts relating to the dependant's đ or the unmarried minor's ď situation which justify a separate
application.
Ü […] Ű Ü 7. Where a person with regard to
whom a transfer decision has to be enforced pursuant to Regulation
(EU)[…/…][the Dublin Regulation] makes further representations or a subsequent
application in the transferring Member State, those representations or
subsequent applications shall be examined by the responsible Member State, as
defined in Regulation (EU) […/…][the Dublin Regulation], in accordance with
this Directive. Ű
Article 41
Specific rules following
the rejection or inadmissibility of a subsequent application
Where Ü , Ű Ü […] Ű after a final decision to consider Ü a Ü […] Ű subsequent Ű Ü […] Ű application inadmissible pursuant to Article
40(5) or after a final decision to reject Ü that Ű Ü […] Űapplication as unfounded, Ü a person makes Ü another Ű Ü […] Ű Ü request Ű Ü […] Ű for international protection in the same Member State, Member States
need not grant the right to remain in the territory Ü […] Ű , provided the determining authority is Ü of the opinion Ű Ü […] Ű
that a return decision will not lead to direct or indirect
refoulement in violation of international
and Union obligations of that Member State. Ű Ü […] Ű
Ü […] Ű
Ü Member
States may also: Ű
(Ü a Ű Ü […] Ű) provide
that the examination procedure be accelerated in accordance with Article
31(6)(f); in such case, Member States may also derogate from the time limits
normally applicable in accelerated procedures, in accordance with national
legislation
Ü and/or Ű ,
(Ü b Ű Ü […] Ű) derogate
from the time limits normally applicable to admissibility procedures provided
for in Articles 33 and 34, in accordance with national legislation.
Article
33
Failure to appear
Member
States may retain or adopt the procedure provided for in Article 32 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 appear before the competent authorities at a specified time.
ę 2005/85/EC (adapted)
đ new
Article 42 34
Procedural rules
1. Member
States shall ensure that applicants for đ international protection ď asylum whose application is
subject to a preliminary examination pursuant to Article 40 32 enjoy the guarantees provided for
in Article 12(1) 10(1).
2. Member
States may lay down in national law rules on the preliminary examination
pursuant to Article 40 32. 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 he/she
obtained such information;
(bc) permit the preliminary examination to be conducted on
the sole basis of written submissions without a personal interview
đ , with the exception of cases referred
to in Article 40(6) ď.
Ö Those rules Ő The conditions shall not render impossible the
access of applicants for
asylum to a new
procedure or 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 for this and the
possibilities for seeking an appeal or review of the decision.;
(b) if one of the
situations referred to in Article 32(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 43 35
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:
(a) đ the admissibility of an ď applications đ , pursuant to Article 33, ď made at such locations; đ and/or ď
(b) the
substance of an application in a procedure pursuant to Article 31(6).
ę 2005/85/EC (adapted)
đ new
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 on 1 December 2005, procedures derogating from the
basic principles and guarantees described in Chapter II, in order to
decide at the border or in transit zones as to whether applicants for asylum
who have arrived and made an application for asylum at such locations, may
enter their territory.
3. The
procedures
referred to in paragraph 2 shall ensure in
particular that the persons concerned:
(a) are allowed to remain at
the border or transit zones of the Member State, without prejudice to
Article 7;
(b) are be immediately informed of their rights
and obligations, as described in Article 10(1) (a);
(c) have access, if necessary, to the services
of an interpreter, as described in Article 10(1)(b);
(d) 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 12, 13 and 14;
(e) can consult a legal adviser or counsellor
admitted or permitted as such under national law, as described in
Article 15(1); and
(f) have a representative appointed in the case
of unaccompanied minors, as described in Article 17(1), unless
Article 17(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 the application for
asylum is considered as unfounded or as inadmissible.
2.4. Member States shall ensure
that a decision in the framework of the procedures provided for in
paragraph 1 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.
3.5. In
the event of particular
types of arrivals, or arrivals involving a large number of third country nationals or
stateless persons lodging applications for đ international protection ď asylum at the border or in a transit zone, which
makes it practically
impossible Ö in practice Ő 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.
Ü […] Ű
ę 2005/85/EC
đ new
Ü Council
CHAPTER
IV
Procedures
for the withdrawal of đ international
protection ď refugee Ü […] Ű
Article 44 37
Withdrawal of đ international protection ď refugee status
Member
States shall ensure that an examination to withdraw the đ international protection ď refugee status of a particular person may
commence when new elements or findings arise indicating that there are reasons
to reconsider the validity of his/her đ international protection ď refugee status.
Article 45 38
Procedural rules
1. Member
States shall ensure that, where the competent authority is considering
withdrawing the đ international protection ď refugee status of a third country national or stateless
person in accordance with Article 14 đ or Article 19 ď of Directive
[…/…/EU] [the Qualification Directive] 2004/83/EC, the person concerned shall enjoys the following guarantees:
(a) to be informed in
writing that the competent authority is reconsidering his or her qualification
for đ international protection ď 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 12(1)(b) 10(1)(b) and Articles 14,
15, đ 16 ď and
17 12,
13 and 14 or in
a written statement, reasons as to why his/her đ international protection ď refugee status should not be withdrawn.
In addition,
Member States shall ensure that within the framework of such a procedure:
(a) the competent authority
is able to obtain precise and up‑to‑date information from various
sources, such as, where appropriate, from đ the European Asylum Support Office and ď the UNHCR, as to the general
situation prevailing in the countries of origin of the persons concerned; and
(b) where
information on an individual case is collected for the purposes of
reconsidering the đ international protection ď refugee status, it is not obtained from the actor(s)
of persecution đ or serious harm ď in a manner that would result in
such actor(s) being directly informed of the fact that the person concerned is
a đ beneficiary of international protection ď 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 đ international protection ď 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 đ international protection ď refugee status, Article 20 15,
paragraph 2,
đ Article 22 ď , Article 23(1) 16,
paragraph 1
and Article 29 21 are equally applicable.
4. By
derogation to paragraphs 1, 2 and 3 of this Article, Member States may
decide that the đ international protection ď refugee Ü […] Ű shall lapse
by law in case of cessation in
accordance with Article 11(1)(a) to (d) of Directive
2004/83/EC or if the đ beneficiary of international protection ď refugee has unequivocally renounced his/her
recognition as a đ beneficiary of international protection ď refugee. đ Member States may also provide that the international protection
status shall lapse by law where the beneficiary of international protection has
become a citizen of that Member State. ď
CHAPTER
V
Appeals
procedures
Article 46 39
The right to an effective remedy
1. Member
States shall ensure that applicants for đ international protection ď asylum have the right to an effective remedy before a
court or tribunal, against the following:
(a) a decision taken on
their application for đ international protection ď , including a decision:
(i) to
consider an application unfounded in relation to refugee status and/or
subsidiary protection status,
ę 2005/85/EC
đ new
Ü Council
(ii i) to
consider an application inadmissible pursuant to Article 33 25 (2),
(iii ii) taken
at the border or in the transit zones of a Member State as described in
Article 43(1) 35(1)
Ü ; Ű Ü […] Ű
(iii) not to conduct an examination
pursuant to Article 36;
Ü (iv) not to conduct an examination pursuant to
Article 39. Ű
(b) a refusal to re‑open
the examination of an application after its discontinuation pursuant to
Articles 27 and 28 19 and 20;
(c) a decision not to further examine the
subsequent application pursuant to Articles 32 and 34;
(d) a decision refusing entry within the
framework of the procedures provided for under Article 35(2);
(ce) a
decision to withdraw đ international protection ď refugee status pursuant to Article 45 38.
2. Member
States shall ensure that persons recognised by the determining authority as
eligible for subsidiary protection have the right to an effective remedy as
referred to in paragraph 1 against a decision to consider an application
unfounded in relation to refugee status.
Ü Without
prejudice to paragraph 1(c) of this Article, where the subsidiary protection
status granted by a Member State offers the same rights and benefits as those
offered by the refugee status under Union and national law, that Member State
may consider an appeal against the decision referred to in subparagraph 1 of
this paragraph inadmissible on the basis of insufficient interest on the part
of the applicant in maintaining the proceedings. Ű
Ü […] Ű
3. Ü In order to comply
with aragraph 1, Ű Member
States shall ensure that Ü an Ű Ü […] Ű effective remedy Ü […] Ű provides for a full Ü and ex nunc Ű examination
of both facts and points of law, including Ü , where applicable," Ű an Ü […] Ű examination of the international protection needs pursuant to Directive
[…/…/EU] [the Qualification Directive], at least in appeal procedures before a
court or tribunal of first instance.
4.2. Member
States shall provide for đ reasonable ď time limits and other necessary
rules for the applicant to exercise his/her right to an effective remedy
pursuant to paragraph 1.
The time limits shall not render impossible or
excessively difficult the access of applicants to an effective remedy pursuant
to paragraph 1.
Member States may also provide for an ex officio review of decisions taken pursuant to Article 43.
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;
(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 for challenging a decision under
Article 25(2)(c) in accordance with the methodology applied under
Article 27(2)(b) and (c).
5. Without
prejudice to paragraph 6, Member States shall allow applicants to remain in the
territory until the time limit within which to exercise their right to an
effective remedy has expired or, when this right has been exercised within the
time limit, pending the outcome of the remedy.
6. In
the case of a decision
Ü (a) Ű to consider an application unfounded where any of the circumstances
listed in Article 31(6) Ü […] Ű apply or Ü manifestly
unfounded in accordance with Article 32(2); Ű
Ü (b) Ű Ü […] Ű to consider an application inadmissible pursuant to Article 33(2)(a) or
(d) Ü ; Ű
Ü (c) to reject reopening of the applicant's case
that has been discontinued according to Article 28; Ű
Ü (d) not
to examine or not to examine fully the application pursuant to Article 39, Ű
and where, in such cases, the right to remain in the
Member State pending the outcome of the remedy is not foreseen under national
legislation, a court or tribunal shall have the power to rule whether or not
the applicant may remain on the territory of the Member State, either upon
request of the concerned applicant or acting on its own motion.
This paragraph shall not apply to procedures referred
to in Article 43.
7. Member
States shall allow the applicant to remain in the territory pending the outcome
of the procedure to rule whether or not the applicant may remain on the
territory, laid down in paragraph 6.
Ü […] Ű
9.4. 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
Directive 2004/83/EC, the applicant may be considered as having 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.
10.6. 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.
CHAPTER
VI
General
and final provisions
Article 47 40
Challenge by public authorities
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 48 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 49
Cooperation
Member States shall each appoint a national
contact point and communicate its address to the Commission. The Commission
shall communicate that information to the other Member States.
Member States shall, in liaison with the
Commission, take all appropriate measures to establish direct cooperation and
an exchange of information between the competent authorities.
ę 2005/85/EC (adapted)
đ new
Ü Council
Article 50 42
Report
No
later than 1 December 2009 đ ......... ď, 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 đ five ď two years.
Article 51 43
Transposition
1. Member
States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this
Directive by 1 December 2007 Ö Articles […] [the Articles
that have been changed as to the substance by comparison with the earlier
Directive] by […] at the latest Ő. Concerning
Article 15, Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive by 1 December
2008. They shall
forthwith Ö communicate to Ő inform the Commission thereof Ö the text of those provisions Ü […] Ű Ő.
2. Member
States shall bring into force the laws, regulations and administrative
provisions necessary to comply with Article 31( Ü 2 Ű Ü […] Ű ) by [3 years from the date of the transposition deadline]. They shall forthwith communicate to the Commission the text of those
provisions Ü […] Ű .
ę 2005/85/EC (adapted)
Ü Council
3. When
Member States adopt Ö the Ő those provisions Ö referred to in paragraphs 1
and 2 Ő, they shall contain a reference to
this Directive or shall be accompanied by such a reference
on the occasion of their official publication. Ö Member States shall determine
how such reference is to be made. Ő The methods
of making such reference shall be laid down by Member States. Ö They shall also include a
statement that references in existing laws, regulations and administrative
provisions to the directive repealed by this Directive shall be construed as
references to this Directive. Member States shall determine how such reference
is to be made and how that statement is to be formulated. Ő
4. Member
States shall communicate to the Commission the text of the Ö main Ő provisions of national law which
they adopt in the field covered by this Directive Ü […] Ű .
ę 2005/85/EC (adapted)
đ new
Article 52 44
Transitional provisions
Member
States shall apply the laws, regulations and administrative provisions Ö referred to Ő set out in Article 51(1) 43 to applications for đ international protection ď asylum lodged after đ […] ď 1 December 2007 and to procedures for the withdrawal of đ international protection ď refugee status started after đ […] ď 1 December 2007. đ Applications submitted before […] and procedures for the withdrawal of refugee status initiated before
[…] shall be governed by the laws, regulations and administrative
provisions adopted pursuant to Directive 2005/85/EC. ď
Member States shall apply the laws, regulations
and administrative provisions referred to in Article 51(2) to applications for
international protection lodged after […]. Applications submitted before […] shall be governed by the laws, regulations and administrative
provisions in accordance with Directive 2005/85/EC.
Article
53
Repeal
Directive 2005/85/EC
is repealed for the Member States bound by this Directive with effect
from [day after the date set out in Article 51(1) of this Directive], without
prejudice to the obligations of the Member States relating to the time-limit
for transposition into national law of the Directive set out in Annex II, Part
B.
References to the repealed Directive shall be construed as references to
this Directive and shall be read in accordance with the correlation table in
Annex III.
Article 54 45
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.
Articles […] shall apply from [day after the date set out in Article
51(1)].
Article 55 46
Addressees
This
Directive is addressed to the Member States in conformity with the Treaty establishing the European Community Ö accordance
with the Treaties Ő.
Done at
Brussels,
For
the European Parliament For
the Council
The
President The
President
