COUNCIL OF
THE EUROPEAN UNION

 

Brussels, 4 May 2012

 

 

Interinstitutional File:

2009/0165 (COD)

 

9480/12

 

 

LIMITE

 

 

 

 

 

ASILE 76

CODEC 1172

 

REPORT

of:

Justice and Home Affairs Counsellors

on:

2 May 2012

No Cion proposal:

11207/11 ASILE 45 CODEC 980

Previous document

9165/12 ASILE 73 CODEC 1083

Subject:

Amended proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection status (Recast)

 

At its meeting on 2 May April 2012, the Asylum Working Party examined Presidency compromise suggestions on above mentioned proposal amending the Asylum Procedures Directive as set out in document 9165/12. The results of this examination, as well as of previous discussions on the recast proposal, are reflected in the Annex with delegations' comments in the footnotes.

 

New text to the Commission proposal is indicated by underlining the insertion and including it within Council tags:   ; deleted text is indicated within underlined square brackets as follows:  [] .

 


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[1],

Having regard to the opinion of the Committee of the Regions[2],

Acting in accordance with the ordinary legislative procedure,

Whereas:


 

 new

(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[3]. In the interest of clarity, that Directive should be recast.

 

 2005/85/EC recital 1 (adapted)

 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  Union  Community.  It should be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. 

 

 2005/85/EC recital 2

(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.


 

 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,  Union  Community rules leading to a common asylum procedure in the European  Union  Community.

 

 2005/85/EC recital 4

 new

(5)           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  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.

 

 new

 Council

(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[4], 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.


(9a)    When implementing this Directive Member States should take into account relevant guidelines developed by the European Asylum Support Office. 

(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.

 

 2005/85/EC recital 5

 new

(11)        The main objective of this Directive is to  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  introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status.

 

 2005/85/EC recital 6

 new

(12)        The approximation of rules on the procedures for granting and withdrawing  international protection  refugee status should help to limit the secondary movements of applicants for  international protection  asylum between Member States, where such movement would be caused by differences in legal frameworks  , and create equivalent conditions for the application of Directive [//EU] [the Qualification Directive] in Member States .


 

 2005/85/EC recital 7

 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  in need of international protection  a refugee within the meaning of  Directive [//EU] [the Qualification Directive]  Article 1(A) of the Geneva Convention.

 

 2005/85/EC recital 9

 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.

 

 2005/85/EC recital 10

 new

(15)        It is essential that decisions on all applications for  international protection  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  international protection  refugee matters.


 

 2005/85/EC recital 11 (adapted)

 new

(16)        It is in the interest of both Member States and applicants for  international protection  asylum  that a decision is made  to make a decision as soon as possible on applications for  international protection  asylum,  without prejudice to an adequate and complete examination . 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.


 

 2005/85/EC recital 12

 new

(19)        The notion of public order may  inter alia  cover a conviction for committing a serious crime.

 

 2005/85/EC recital 13 (adapted)

 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  or as persons eligible for subsidiary protection , 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  international protection  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)  and with organisations providing advice or counselling to applicants for international protection  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  understands or   is  can reasonably be supposed to understand  and, in the case of a negative decision, the right to an effective remedy before a court of a tribunal .


 

 2005/85/EC recital 14

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.

 

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 Council

(21)[5]      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  relevant information   []  and necessary training on how to recognise and deal with requests for international protection  inter alia taking due account of relevant guidelines developed by the European Asylum Support Office  . 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  []  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)        In addition, applicants in need of special procedural guarantees, such as minors, unaccompanied minors, persons who have been subjected to torture, rape or other serious acts of violence or disabled persons, 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)[6]      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  may    []  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.

 

 2005/85/EC recital 15

 new

(28)[7]      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  be able to dismiss an application as inadmissible in accordance with the res judicata principle  have a choice of procedure involving exceptions to the guarantees normally enjoyed by the applicant.

 

 2005/85/EC recital 16

 new

(29)        Many asylum applications  for international protection  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  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  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.


 

 2005/85/EC recital 17

 new

(30)        A key consideration for the well‑foundedness of an asylum application  for international protection  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.

 

 2005/85/EC recital 18

(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.

 

 2005/85/EC recital 19

Where the Council has satisfied itself that those criteria are met in relation to a particular country of origin, and has consequently included it in the minimum common list of safe countries of origin to be adopted pursuant to this Directive, Member States should be obliged to consider applications of persons with the nationality of that country, or of stateless persons formerly habitually resident in that country, on the basis of the rebuttable presumption of the safety of that country. In the light of the political importance of the designation of safe countries of origin, in particular in view of the implications of an assessment of the human rights situation in a country of origin and its implications for the policies of the European Union in the field of external relations, the Council should take any decisions on the establishment or amendment of the list, after consultation of the European Parliament.


 

 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.

 

 2005/85/EC recital 21

 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  valid  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.


 

 2005/85/EC recital 22 (adapted)

 new

(34)        Member States should examine all applications on the substance, i.e. assess whether the applicant in question qualifies  for international protection  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  for international protection  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.

 

 2005/85/EC recital 23

 new

(35)        Member States should also not be obliged to assess the substance of an an asylum application  for international protection  where the applicant, due to a  sufficient  connection to a third country as defined by national law, can reasonably be expected to seek protection in that third country , and there are grounds for considering that the applicant will be admitted or re-admitted to that country . 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.


 

 2005/85/EC recital 24

 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  for international protection  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.

 

 2005/85/EC recital 25

It follows from the nature of the common standards concerning both safe third country concepts as set out in this Directive, that the practical effect of the concepts depends on whether the third country in question permits the applicant in question to enter its territory.

 

 new

(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.


 

 2005/85/EC recital 26

 new

(38)        With respect to the withdrawal of refugee  or subsidiary protection  status, Member States should ensure that persons benefiting from  international protection  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.

 

 2005/85/EC recital 27 (adapted)

 new

(39)        It reflects a basic principle of  Union  Community law that the decisions taken on an application for asylum  international protection, the decisions concerning a refusal to re-open the examination of an application after its discontinuation,  and  the decisions  on the withdrawal of refugee  or subsidiary protection  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.


 

 2005/85/EC recital 28

(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.

 

 2005/85/EC recital 29

 new

(41)        This Directive does not deal with procedures  between Member States  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  for international protection  lodged in one of the Member States by a third‑country national  or a stateless person ] (the Dublin Regulation).


 

 new

 [] [8]

 

 2005/85/EC recital 30

(43)        The implementation of this Directive should be evaluated at regular intervals not exceeding two years.

 

 2005/85/EC recital 31 (adapted)

 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  Union  Community level, the  Union  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.


[9] (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. 

 

 2005/85/EC recital 32

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified, by letter of 24 January 2001, its wish to take part in the adoption and application of this Directive.

 

 2005/85/EC recital 33

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland has notified, by letter of 14 February 2001, its wish to take part in the adoption and application of this Directive.


 

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 Council

(45)[10]     In accordance with  Articles 1, 2 and  Article 4a(1) of Protocol  (  No. 21  )  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  []  Article 4 of that Protocol,  the United Kingdom and Ireland are not taking part in the adoption of this Directive and   []  are not bound by it  or subject to its application   [] .

 

 2005/85/EC recital 34

(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.

 

 2005/85/EC recital 8

 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.  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. 


 

 new

(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.

 

 2005/85/EC

 new

 Council

HAVE ADOPTED THIS DIRECTIVE[11],

CHAPTER I

General provisions

Article 1

Purpose

The purpose of this Directive is to establish  common  minimum standards on procedures in Member States for granting and withdrawing  international protection  []  by virtue of Directive [//EU] [the Qualification Directive]  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;

 

 new

(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;


 

 2005/85/EC

 new

(c)          "applicant" or "applicant for  international protection  asylum" means a third country national or stateless person who has made an application for  international protection  asylum in respect of which a final decision has not yet been taken;

 

 new

 Council

(d)[12]       "applicant in need of special procedural guarantees" means an applicant  whose ability to benefit from the rights and comply with the obligations provided for in this Directive is limited   []  due to  individual circumstances  . These circumstances could inter alia  []   relate to  the applicant's   []  age,  []  disability, serious  []  illness, mental  []  disorders[13] or consequences of torture, rape or other serious forms of psychological, physical or sexual violence  [] ;


 

 2005/85/EC

 new

(ed)        "final decision" means a decision on whether the third country national or stateless person be granted refugee  or subsidiary protection  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  international protection  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;


 

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 Council

(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  [] " 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;

 

 2005/85/EC (adapted)

(jg)         "refugee status" means the recognition by a Member State of a third country national or  a  stateless person as a refugee;

 

 new

(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;


 

 2005/85/EC (adapted)

 new

 Council

(mh)       "unaccompanied minor" means  a minor as defined in Article 2(l) of Directive [//EU] [the Qualification Directive]  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)[14]      "representative[15]" means a  person or an organisation appointed by the competent bodies  [] [16]in 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  is appointed   [] as a representative, it shall  designate   [] a person responsible for carrying out the duties of   []   this  organisation   [] in respect of the minor, in accordance with this Directive  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  international protection  refugee status" means the decision by a competent authority to revoke, end or refuse to renew the refugee  or subsidiary protection  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  international protection  asylum has been made or is being examined;.

 

 new

(q)[17]       "subsequent application" means a further application made after a final[18] 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). 


 

 2005/85/EC (adapted)

 new

Article 3

Scope

1.           This Directive shall apply to all applications for  international protection  asylum made in the territory, including at the border  , in the territorial waters  or in the transit zones of the Member States, and to the withdrawal of  international protection  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[19] protection  falling outside of the scope of Directive [//EU] [the Qualification Directive] .

Article 4[20]

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.  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. 

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  an  another authority  other than that referred to in paragraph 1  is responsible for the purposes of:

(a)      processing cases pursuant to Regulation (EU) No [/] [the Dublin Regulation], and  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)    granting or  refusing permission to enter in the framework of the procedure provided for in Article  43  35(2) to (5), subject to the conditions and as set out therein  and on the basis of the opinion of the determining authority. ;


(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.

 

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3.[21]         Member States shall ensure that the personnel of the determining authority are properly trained. To that end, Member States shall provide for  []  relevant  []  training  taking inter alia  []  into account the training established and developed by the European Asylum Support Office.  Persons interviewing applicants pursuant to this Directive  shall  also  have acquired general knowledge of  []  problems which could adversely affect the applicants' ability to be interviewed  , such as indications of possible past torture. .


 

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4.3.        Where  an authority is  authorities are designated in accordance with paragraph 2, Member States shall ensure that the personnel of  that authority such authorities have the appropriate knowledge or receive the necessary training to fulfil their obligations when implementing this Directive.

 

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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  international protection  refugee status, insofar as those standards are compatible with this Directive.


CHAPTER II

Basic principles and guarantees

Article 6[22]

Access to the procedure

1.  [] 

 

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 []          When a person makes a request for international protection[23]  to an authority competent under national law for registration of such applications, the  registration   []  shall  take place    []  no later than 3 working days after the request is made. 


 If the request  for international protection  is made to  other authorities which are   []  likely to receive such requests, but not competent for the registration under national law, Member States shall ensure that  []  the  registration shall take place   []  no later than 6 working days after the request is made. 

 Member States shall  ensure that those   []  other authorities which are likely to receive requests for international protection  such as   []  police, border guards, immigration authorities and personnel of detention facilities  []  have the relevant information and that their personnel receive  []  instructions  to inform applicants where and how applications for international protection may be lodged  .  

 [] 

 [] 

 2   [] .        []  Member States shall ensure that  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,  Member States may apply   []  Article 28 of this Directive  accordingly  . [24] 


 3.       Member States may require that applications for international protection be lodged in person and/or at a designated place, without prejudice to  paragraph   []  2  [] 

 4.[25]    Without prejudice to paragraph 3,

 (a)   an  []  application for international protection shall be deemed to have been lodged once a form submitted by the applicant or

 (b)            where this is foreseen in national law, lodging may also be deemed to have taken place once    []  an official   []  report  [] 

has reached the  relevant   []  authorities of the Member State concerned  []  .   [] 

 [] 

 [] 

 5.  [26] []   [] .          Where  the simultaneous   []  request  for  international protection  by a large number of third country nationals or stateless persons   []  makes it  very difficult   []  in practice to respect the  [] time limit laid down in paragraph  1   []   [] , Member States may provide for that time limit to be extended to  []   10  working days.


 

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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  international protection  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.  Before consent is requested, each  dependant  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. 


 

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3.[27]         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  through  a representative.


4.[28]         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[29] 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  international protection  asylum is deemed to constitute also the lodging of an application for  international protection  asylum for any unmarried minor.

 

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Article 8

Information and counselling at border crossing points and in detention facilities

1.           [30]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  , in response to an enquiry from the third country national or stateless person in this respect .  In these detention facilities and border areas,  Member States shall provide interpretation arrangements to the extent necessary to facilitate access to  the  procedure  concerning international protection   [] .


2. [31]        Member States shall ensure that organisations   and persons  providing advice and counselling to applicants for international protection have access to the  applicants present at  border crossing points, including transit zones, at external borders. Member States may provide for rules covering the presence of such organizations  and persons  in these areas  and in particular that access is subject to an agreement with the competent authorities of the Member State.    []   The rules may also impose  limitations  []   due to the  security, public order and administrative management of  []   the area  concerned    [] .

 

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Article 9 7 [32]

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.[33]         Member States can make an exception only where , in accordance with Articles 32 and 34,  a person makes  a subsequent application  referred to in Article 41[34] 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[35] or otherwise, or to a third country,  with the exception of the country of origin of the applicant concerned, [36] or to international criminal courts or tribunals.

 

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3.[37]         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.


 

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Article 10 8[38]

Requirements for the examination of applications

1.           Without prejudice to Article 23(4)(i), Member States shall ensure that applications for  international protection  asylum are neither rejected nor excluded from examination on the sole ground that they have not been made as soon as possible.

 

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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.


 

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3.2.        Member States shall ensure that decisions by the determining authority on applications for  international protection  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  European Asylum Support Office and the  United Nations High Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions;

(c)     the personnel examining applications and taking decisions have the knowledge with respect to relevant standards applicable in the field of asylum and refugee law; .


 

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(d)[39]  the personnel examining applications and taking decisions  [] have 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  shall  may[40] 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  international protection  asylum are given in writing.

2.[41]         Member States shall also ensure that, where an application is rejected  with regard to refugee status and/or subsidiary protection status [42], 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.[43]         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  , 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 .

Article 12 10

Guarantees for applicants for  international protection  asylum

1.           With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants for  international protection  asylum enjoy the following guarantees:


(a)     they shall be informed in a language which they  understand or   are  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  , as well as of the consequences of an explicit or implicit withdrawal of the application . 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  is  to be interviewed as referred to in Articles 14, 15, 12 and 13  16, 17 and 34  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  providing legal advice or counselling to applicants for international protection in accordance with the national law of  working on behalf of the UNHCR in the territory of the Member State pursuant to an agreement with that Member State;


 

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(d)[44]  they and, if applicable, their legal advisers  in acordance with Article 23(1)  shall not be denied access to the information referred to in Article 10(3)(b), where the determining authority  has taken   [] that 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  international protection  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  international protection  asylum;


(fe)    they shall be informed of the result of the decision by the determining authority in a language that they  understand or   are  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)  , (d)  and (e d) of this Article.

Article 13 11

Obligations of the applicants for  international protection  asylum

1.            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].  Member States may impose upon applicants for asylum  other  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)[45]  the competent authorities may search the applicant and the items he/she carries with him/her   . Whenever possible[46], a search of the applicant's person shall be   []  carried out by a person of the same sex  ;

(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[47]

1.[48]         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  international protection  asylum with a person competent under national law to conduct such an interview.  Interviews on the substance of the application for international protection shall be conducted by the personnel of the determining authority. [49]

 This paragraph shall be without prejudice to Article 42(2)(b). [50]

Member States may also give the opportunity of a personal interview to each dependant adult referred to in Article 6(3).


 

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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.[51]

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.[52]         The personal interview on the substance of the application may be omitted where:

(a)     the determining authority is able to take a positive decision  with regard to refugee status  [53]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)[54], (c), (g), (h) and (j) apply.[55]

3.      The personal interview may also be omitted where


(b)     it is not reasonably practicable, in particular where the  determining  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,  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  of long-term nature   []  Member States may require a medical or psychological certificate.

Where  a personal interview is not conducted  the Member State does not provide the applicant with the opportunity for a personal interview pursuant to point (b) this paragraph, or where applicable,  with  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  international protection  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  international protection  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[56]

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)[57]  ensure that the person who conducts the interview is sufficiently competent to take account of the  relevant  personal  and  or general circumstances surrounding the application[58], including the applicant's cultural origin  , gender, sexual orientation, gender identity  or vulnerability  [] , insofar as it is possible to do so; and


 

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(b)[59]  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  unless    []  the request is  [] based on discriminatory  grounds   [] [60] ;


 

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(cb)   select  an   []  interpreter who is able to ensure appropriate communication between the applicant and the person who conducts the interview. The communication  shall  need not necessarily take place in the language preferred by the applicant for asylum  unless  if there is another language which he/she may reasonably be supposed to[61] understands and in which he/she is able to communicate  clearly [62].  Wherever possible, Member States shall provide an interpreter of the same sex if the applicant so requests  unless    []  the request is  [] based on discriminatory  grounds   []  ;


 

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(d)[63]  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.[64]

 

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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).


 

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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.


 

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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).


 

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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  available in connection with the applicant's file   [] .[65]


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[66], with the assistance of an interpreter if necessary. Member States shall then request the  acknowledgement   [] of the applicant on the content of the report.

Member States need not request the applicant's  acknowledgement   [] on 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  acknowledge   [] the content of the report, the reasons for this refusal shall be entered into the applicant's file.

The refusal of an applicant to  acknowledge   [] the 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.  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. [67]

Article 18

Medical  examination   [] 

1.           [68]  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],    []   Member States  []  shall  , subject to the applicant's consent,    []  arrange  []  for a medical examination   of him/her  concerning signs that might result from past persecution or serious harm   []   [] .  Alternatively, Member States may  provide that   []  the applicant  arranges   []  for such a medical examination.


                 The medical  examinations mentioned in subparagraph 1   [] shall be carried out by qualified medical professionals   and the result thereof   []  shall be submitted to the determining authority  as soon as possible .  Member States may designate the medical professionals who can carry out these medical examinations.   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. 

 Medical examinations carried out in accordance with this paragraph shall be paid for out of public funds. 

2.            Member States shall[69]  []   , whenever relevant,   inform applicants that they may on their own initiative and at their own cost arrange for a medical examination concerning signs that might result from past persecution or serious harm  []  .

 [] 

[70] [] 

 [] 

 [] 

 3   [] .       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[71]

1.            In procedures at first instance provided for in Chapter III  Member States shall ensure that  [] , on request,  applicants are provided with legal and procedural information free of charge   [] . This shall include, at least, the provision of information on the procedure in the light of the applicant's particular circumstances.  [] [72]  In the event of a negative decision  , 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   [] [73].


2.[74]         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[75]

 

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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  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. 

 

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2. [76]        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.[77]         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  or other competent authority  to have no tangible prospect of success.

 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. 

In  the application of this paragraph   []  , 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
[78]

1.           Member States may provide that the legal and procedural information referred to in Article 19  is   [] provided by non-governmental organisations, government officials, or specialised services of the State.

 Free legal assistance and representation referred to in Article 20 shall be provided by such persons as admitted or permitted under national law. 


 

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