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Brussels, 21.10.2009 SEC(2009) 1373 final COMMISSION STAFF WORKING DOCUMENT Accompanying the Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL Impact Assessment {COM(2009) 551} {SEC(2009) 1374} EN
Background .................................................................................................................. 4 Policy context............................................................................................................... 4 Organization and timing, consultation and expertise................................................... 6 The Impact Assessment Board..................................................................................... 7 PROBLEM DEFINITION ........................................................................................... 8 Scope of the problem ................................................................................................... 8 What is the issue or the problem that may require action? .......................................... 8 Harmonization on the basis of minimum standards: meaning, main elements and objectives ..................................................................................................................... 9 Problems with the standards set down by the current Directive ................................ 10 Statistical evidence of insufficient harmonization ..................................................... 13 The effect of insufficient harmonization on secondary movements .......................... 14 Insufficient harmonization as one of the factors for the unequal distribution of asylum seekers ........................................................................................................................ 15 Evidence for poor first instance decision-making...................................................... 15 Difficulties in forecasting and quantifying costs in the asylum system..................... 16 The economic situation .............................................................................................. 16 The Baseline scenario: "How would the problem evolve, all things being equal?" .. 17 Does the EU have the power to act? .......................................................................... 18 The EU's right to act................................................................................................... 18 Added value of EU action and respect for the principle of subsidiarity .................... 18 OBJECTIVES ............................................................................................................ 19 Global objective ......................................................................................................... 19 Specific objectives ..................................................................................................... 20 Operational objectives................................................................................................ 20 POLICY OPTIONS ................................................................................................... 21 Status Quo .................................................................................................................. 21 To limit the broad interpretation of "actors of protection" in line with the standards of the Geneva Convention.................................................................................................... 21 To limit the broad interpretation of the concept of "internal protection" in line with the standards of the Geneva Convention and the ECHR ................................................. 22 EN 2
To approximate the rights of beneficiaries of subsidiary protection to those of refugees 26 Duration of residence permits .................................................................................... 26 Access to employment ............................................................................................... 27 Access to integration facilities ................................................................................... 28 To enhance the integration of beneficiaries of international protection taking into account their specific needs..................................................................................................... 29 To enhance access to procedures for recognition of qualifications ........................... 29 To enhance access to vocational training and employment ....................................... 32 To enhance access to integration facilities................................................................. 33 To enhance access to accommodation ....................................................................... 34 To better ensure the right of beneficiaries of international protection for respect of family life .............................................................................................................................. 36 Summary of further non contentious policy options selected.................................... 38 Presentation of the Preferred Policy Option .............................................................. 39 Assessment of Preferred Policy Option ..................................................................... 39 EU added value .......................................................................................................... 39 Proportionality ........................................................................................................... 39 Summary of relevance, feasibility and expected impacts .......................................... 40 Potential magnitude of financial impacts................................................................... 44 Potential costs ............................................................................................................ 44 Potential savings ........................................................................................................ 48 Assistance from the European Refugee Fund and from the Asylum Support Office 49 Longer term benefits of successful integration .......................................................... 50 Tackling abuse of the asylum system ........................................................................ 50 Monitoring and Evaluation ........................................................................................ 51 EN 3
Justice, Freedom and Security ISSUES AND CONSULTATION OF INTERESTED PARTIES Policy context 1 ("Policy Plan") of 17 June 2008, the Commission proposed the 2 , and, on 18 February Policy Plan on Asylum `An integrated approach to protection across the EU' COM(2008) 360 Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (COM (2008) 815 final/2); Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (COM (2008) 820 final/2); Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EC) No [.../...] [establishing the EN 4
4 , to be adopted together with the proposal for nd phase will start from a solid basis: certain progress has already been criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] (COM (2008) 825 final) and Proposal for a Directive of the European Parliament and the Council laying down minimum standards for the reception of asylum seekers (COM 2008(815 final/2) Proposal for a Regulation of the European Parliament and of the Council establishing a European Asylum Support Office (COM (2009) 66 final) Council Directive 2005/85/EC of 1 December 2005, on procedures in MS for granting and withdrawing refugee status (OJ L 326, page 13) EN 5
revision of the Asylum Procedures Directive. The revision of the latter Directive aims at providing asylum authorities with procedural tools which can adequately back up the correct and consistent implementation of the substantive criteria of the Qualification Directive and more generally at boosting the overall capacity of asylum authorities to make robust decisions and to efficiently manage the asylum process, through a wide range of frontloading measures. - At the same time, by enabling authorities to process claims more rapidly while reaching solid decisions and thus to better deal with abuse, the Qualification Directive fits in the broader context of measures taken to improve the credibility of the asylum process notably by increasing the effectiveness of return policies, in particular through the entry into force of the "Return Directive" and the creation of the European Return Fund. - Ensuring that asylum seekers have equal access to protection throughout the EU through further harmonization of rules and practices regarding the granting of protection, as envisaged by the revision, is a prerequisite for the effective functioning and the credibility of the Dublin System. As demonstrated in the Commission's proposal for its revision, the underlying principles of this System have been considered worth to uphold in the second phase. However, it has become clear that further efforts towards the achievement of a level-playing field are urgently needed with a view to ensuring that the Dublin System can operate in a fair and efficient manner. - The proposals for the revision of the Dublin Regulation and the Reception Conditions Directive contain elements regarding, for instance, the respect of the principle of non discrimination and other fundamental rights or broadening the definition of family members which should be reflected in the revision of the Qualification Directive in order to ensure coherence in the instruments of the second-phase acquis. - With a view to reducing secondary movements, the proposed revision of the Qualification Directive aims at addressing one of the relevant drivers, namely that asylum seekers have different chances of finding protection and the possibility to obtain, once recognised, different levels of rights in the different MS. It is thus part of a broader effort made in the second phase to reduce secondary movements: other drivers relating to the divergences in reception conditions and asylum procedures are being addressed in parallel, through the revision of the Reception Conditions Directive and the Asylum Procedures Directive. The approximation of national practices will also increase as a result of enhanced practical cooperation through the creation of the EASO. In parallel, as a means of addressing the consequences of the uneven distribution of asylum seekers, further measures are being currently developed to ensure that responsibility for processing asylum applications and granting protection in the EU is shared more equitably, notably by assisting, based on the principle of solidarity, those MS which because of their geographical position are faced with particular pressures. Organization and timing, consultation and expertise 5 on possible options for the second COM (2007) 301 EN 6
6 evaluating the implementation of 7 . Moreover, an external study 8 was conducted on 9 . The report also incorporates comments submitted during two 10 . In particular, the IA explains to what extent the Further studies include: UNHCR, "Asylum in the European Union, A study on the implementation of the Qualification Directive", November 2007 http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=473050632&page=search (the "UNHCR study"); ELENA/ECRE, "The impact of the EU Qualification Directive on International protection", October 2008, http://www.ecre.org/files/ECRE_QD_study_full.pdf.( "ECRE study"); France Terre d'Asile, "Asile La protection subsidiaire en Europe: Un mosaïque de droits", Les cahiers du social no 18, Septembre 2008; Dutch Refugee Council/ECRE, `Networking on the Transposition of the Qualification Directive', December 2008, http://www.qualificationdirective.eu/research ; Nijmegen University, "The Qualification Directive: Central themes, Problem issues, and Implementation in selected MS", Karin Zwaan (ed), 2007 Available at http://ec.europa.eu/justice_home/doc_centre/asylum/studies/wai/doc_asylum_studies_en.htm GHK, Impact assessment studies on The future development of measures on the qualification and status of third country nationals or stateless persons as persons in need of international protection and on the content of the protection granted, based on Council Directive 2004/83/EC and The future development of measures on procedures in MS for granting and withdrawing refugee status, based on Council Directive 2005/85/EC, Multiple framework service contract JLS/2006/A1/004. The main findings of all these consultations are presented in Annex 2. The opinion will be available at: http://ec.europa.eu/governance/impact/cia_2009_en.htm . EN 7
11 . This decreasing trend stopped in 12 . Even so, asylum seekers represent a small fraction of overall 13 . 14 . Indeed, it was precisely with a view to limiting 15 . These factors in clude: than those established by the acquis ; See table new asylum applications 1987-2007 in Annex 3 See Table in Annex 4 UNHCR Annual Statistics Report 2007, available at www.unhcr.org/statistics Further factors include linguistic and cultural links, family ties, the presence of immigrant communities as well as geography. Indeed, as will be demonstrated below under section 2.2.5, some MS receive very high numbers of asylum seekers due to their geographical position. The different measures aimed at helping those MS adequately deal with these flows relate to financial solidarity, to burden sharing through relocation of beneficiaries of international protection and to tasks to be assigned to the future EASO. For instance, the vagueness, the ambiguity and the gaps in the Directive also make it difficult to substantiate infringement cases in cases of incomplete or incorrect implementation. EN 8
2.2.1 Harmonization on the basis of minimum standards: meaning, main elements and objectives 16 , not the specific content of Community measures. Hence, the common international protection and that 17 The extent to which a Community measure may regulate a certain issue must be assessed by means of the principles of subsidiarity and proportionality. Recitals 2, 3, 10 and 11 of the Directive EN 9
cornerstone of the international regime for the protection of refugees, guaranteeing the principle of non-refoulement and ensuring that nobody is sent to persecution and, themselves, are the result of constitutional traditions common to the MS and the European Convention on Human Rights, as enshrined, moreover, in the EU Charter of Fundamental Rights ("the Charter"). 2.2.2 Problems with the standards set down by the current Directive 18 as a main problem that the minimum standards refugee law standards and Asylum decisions are made on a case-by-case basis and their outcome depends not only on the applicable rules and their interpretation, but also on the credibility of the claims and the individual circumstances of the applicants. Moreover, MS do not systematically collect information on the specific grounds on which applications are accepted or rejected. As a result, it is not possible to determine with precision whether and to what extent the interpretation of certain provisions of the Directive in ways that may be incompatible with international standards have actually led to rejections of applications. The problems described below have been identified mainly on the basis of the mostly anecdotal evidence provided by the evaluation studies and the consultations: it refers to cases in the administrative and judicial practice in MS illustrating how the Directive allows for divergent interpretations and for measures that do not meet international standards. Indeed, even the UNHCR study, which was based on the sampling and analysis of a substantial number of asylum decisions and case files, could not establish more general decision-making patterns, as in many cases the assessment of the individual cases takes into account combinations of elements and the decisions themselves are not or not sufficiently motivated. EN 10
19 . 20 . Moreover, it should be noted that refugee and human rights obligations are the subject of a constantly evolving authoritative interpretation by competent national and international bodies and jurisdictions, such as the UN High Commissioner for Refugees, who has supervisory responsibility for the Geneva Convention, the European Court of Human Rights (ECtHR), the International Criminal Court etc, with a view to address the evolving nature of persecution and geopolitical developments For a detailed presentation of these standards see Annex 23 EN 11
21 . In 22 : See for instance Decision No 573/2007/EC of the European Parliament and the Council of 23 May 2007, establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme "Solidarity and Management of Migration Flows" and repealing Council Decision 2004/904/EC (OJ L 144, p.1, "ERF"), recital 15. For a concise comparison of the standards of the Directive with the standards/objectives to be attained in the second phase, see table in Annex 23. For a detailed analysis of these problems on the basis of information provided by the evaluation reports and collected in the context of recent consultations see Annexes 5- 12 and 18. EN 12
23 . 2.2.3 Statistical evidence of insufficient harmonization 24 : th quarter 2008 25 : For a detailed presentation of the problems, and references to the relevant studies see Annex 9 For references and more information on relevant statistics see Annex 13 Source: Eurostat. EU-27: Refugee status and rejections: no data for DK, IT and CY available. Subsidiary protection: no data for DK, IT and CY available. Humanitarian reasons: no data for DK, FR, IT, CY and AT EN 13
2% 0% 0% 6% 9% 3% 0% 11% 18% 78% 73% 100% France (8 525 decisions) United Kingdom (5 775 decisions) Germany (4 910 decisions) 11% 0% 21% 3% 37% 1% 10% 56% 68% 86% 7% Refugee status Subsidiary protection Humanitarian reasons Rejections 2.2.4 The effect of insufficient harmonization on secondary movements 26 , whereas certain MS continue to be more "attractive" destinations than others. For instance, 27 . For more information on relevant statistics see Annex 14 The findings of recent studies on the distribution of asylum applications across receiving countries are largely consistent with the responses from surveys of asylum seekers about why they chose one destination rather than another: they suggest that, while asylum policies do influence the numbers of applications, asylum flows are determined mostly by variables not related to asylum policy; see Timothy J. Hatton, "European asylum policy", National Institute Economic Review no 194, October 2005, available at http://ner.sagepub.com/cgi/conten/abstract/194/1/106 EN 14
28 . 2.2.5 Insufficient harmonization as one of the factors for the unequal distribution of asylum seekers 29 show that the 30 . A clear articulation between 2.2.6 Evidence for poor first instance decision-making 31 ), they also point to the low defendability of Asylum applications by Iraqis in Sweden decreased from 18,560 in 2007 to 6,330 in 2008, whereas in. Germany they increased from 4,325 in 2007 to 7,135 for Jan-Oct 2008, in the Netherlands from 2,005 in 2007 to 4,805 for Jan-Oct 2008 and in Finland from 290 in 2007 to 765 for Jan-Oct 2008); Source: Eurostat. See Annex 15. See tables in Annex 13 In 2008 appeals thus resulted in 18,500 final decisions to grant protection in addition to 47,745 positive first-instance decisions; for data on appeals in 2007 and 2008 see Annex 17 EN 15
32 . Secondly, MS have not been able to provide 33 . Different rights, such as access to education, recognition of qualifications, social 34 . 2.2.8 The economic situation 35 . Raising the standards regarding the grounds for To cite a theoretical example: if for instance the multi-national troops currently present in Iraq and who are potential actors of protection withdraw, the Directive's provisions on actors of protection, which are now often relevant in the determination of claims by Iraqi asylum seekers, would no longer be relevant for a large number of asylum claims in the EU. Depending on future conflicts around the world, different provisions of the Directive and other grounds of protection may acquire greater relevance in the future. As will be indicated below, the scant information collected on specific aspects does not allow for plausible estimates. See Impact assessment to the Policy Plan on Asylum 'The Persistence of refugee flows towards the EU', (SEC (2008) 2029) p. 5 EU citizens may initially perceive any `special' treatment for this category as unfair. According to a recent Eurobarometer survey of public opinion, 54% of EU citizens disagree with the idea that immigrants are needed to work in certain sectors of the economy in view of the ageing European population and the shortage of labour in certain sectors of the economy, EN 16
whereas in the ten new MS (excluding Bulgaria and Romania) this figure is much higher, reaching close to 80% (compared to 49% in the fifteen old MS) http://ec.europa.eu/public_opinion/archives/ebs/ebs_215_en.pdf (pp. 39-40). However, other recent surveys show that attitudes towards genuine refugees are more positive than they are towards immigrants in general and that the humanitarian motives underlying refugee protection are more widely supported than negative press coverage would suggest; see Timothy J. Hatton, "European asylum policy", op.cit. p 113. EN 17
36 . The EU's right to act Added value of EU action and respect for the principle of subsidiarity - and confirmed in the Pact - regarding a As demonstrated in the reversal of trends described in section 2.1 above: following a sharp decrease in the period 2003 2006, asylum flows have increased again significantly since 2007. EN 18
37 . and the uneven distribution of asylum seekers and beneficiaries of 38 . Indeed, the whole creation of a CEAS and the Qualification Directive, in particular, "pursues the objective of developing a fundamental right to asylum which follows from the general principles of Community law which, themselves, are the result of constitutional traditions common to the Member States and the ECHR, as reproduced, moreover, in the Charter [of Fundamental Rights]". See Opinion of Advocate General Poiares Maduro of 9 September 2008 in Case C-465/07, Elgafaji, point 21 Case C-377/98, Netherlands v Council, paragraph 52¸ concerning the "Working time Directive" EN 19
To ensure the full and inclusive application of the Geneva Convention To approximate the content of protection granted to refugees and beneficiaries of To raise the overall content of protection taking into account the specific needs of To improve the efficiency of the asylum process; To ensure the consistent application of agreed protection standards across the EU. · To limit the broad interpretation of the concepts "actors of protection" and "internal protection" in line with the standards of the Geneva Convention and the ECHR · To ensure a more inclusive interpretation of the concept "membership of a particular social group" in line with the standards of the Geneva Convention · to ensure a more inclusive interpretation of the "causal nexus requirement' in line with the Geneva Convention 39 to prevent the unwarranted cessation of protection status 40 · · To eliminate unjustified differences between the rights granted to refugees and beneficiaries of subsidiary protection · To enhance the integration of beneficiaries of international protection taking into account their specific needs · To better ensure the right of beneficiaries of international protection for respect of family life. See Annex 18 and section 4.8 below. See Annex 18 and section 4.8 below. EN 20
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· To specify the criteria to be used for the "reasonableness" analysis based on the relevant UNHCR Guidelines, i.e. safety and security of the applicant, respect for his/her fundamental rights and the possibility to survive at a basic level of subsistence; · To confirm that the concept of internal flight alternative may apply notwithstanding technical obstacles to return to the country of origin but to specify that such obstacles must be of a temporary and exceptional nature and that they should not preclude the return for a period exceeding 6 months from the date of the decision, citing as examples the closure of airports and natural disasters; · To specify that applicants falling within the scope of this option should be granted refugee status or subsidiary protection during the period in question, depending on what status they would be eligible for if the internal flight alternative would not apply. · To introduce an additional requirement, namely that the applicant should be able to travel to, gain admittance and settle in the proposed alternative location; EN 22
obstacles. · To include an explicit reference to the obligation of the competent authorities to obtain precise and up-to-date information on the general situation in the country. · To impose on MS the obligation to demonstrate on an individual basis that the conditions for applying the internal flight alternative are fulfilled while specifying that the duty of the applicant to substantiate his/her claim in accordance with Article 4(1) of the Directive would not be affected · to introduce an additional requirement, namely that the applicant should be safely, legally and practically able to travel to, gain admittance and settle in the proposed alternative location; · To delete the possibility to apply the internal flight alternative despite technical obstacles. EN 23
EN 24
and its EN 25
Duration of residence permits EN 26
Access to employment EN 27
41 which grants asylum seekers unconditional access to the labour market. Access to integration facilities Council Directive 2003/9/EC of 27 January 2003, laying down minimum standards for the reception of asylum seekers (OJ L 31 of 6.2.2003, p. 18) EN 28
To enhance access to procedures for recognition of qualifications EN 29
42 , namely to take all feasible and reasonable steps within 11.4.1997, http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=165&CL=ENG , Article VII EN 30
EN 31
To enhance access to vocational training and employment 43 which Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, COM(2007) 637 final, Article 15(1)(i). EN 32
EN 33
To enhance access to accommodation 44 regarding Second Edition, available at http://ec.europa.eu/justice_home/doc_centre/immigration/integration, pp. 32-36 EN 34
45 . 46 . 47 . 48 , to the extent that beneficiaries of protection Council Directive 2003/109/EC of 25 November 2003, concerning the status of third-country nationals who are long term residents (OJ L 16, p. 44) , Article 11(1)(f) In the Czech Republic, the state finances 5 "integration centers" where refugees can stay for a maximum period of 18 months; Hungary also provides refugees with the possibility to live in an open center for a period of 6 months which can be extended to 6 more months; in Poland, the state does not provide accommodation as such but grants substantial financial means to beneficiaries of international protection to find something on their own; Poland is further reported to provide more favourable standards. For more detailed information see Annex 11. This was one of the problems identified in the Commission in the context of the evaluation of the Reception Conditions Directive; see relevant Impact Assessment SEC (2008) 2944. For a detailed presentation see Annex 11 EN 35
family life EN 36
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· Legislative option: To specify that the causal link exists where there is a connection between the acts of persecution and the absence of protection against such acts. · Practical cooperation: MS could cooperate to map the application of the nexus requirement in the MS and its effects on the process and outcomes of determining whether an applicant is to be granted international protection or not. The exchange of this information and best practices would serve as a basis to approximate national decision-making on the matter. · Legislative option: To incorporate in the Directive the obligation to apply in the case of cessation of both refugee and subsidiary protection status an exception to cessation relating to compelling reasons arising out previous persecution or serious harm. · Legislative option: To oblige MS to grant benefits to family members of beneficiaries of subsidiary protection under the same conditions as to family members of refugees. · Legislative option: To eliminate the possibility to limit the reasons for which beneficiaries of subsidiary protection may travel outside the MS' territory EN 38
sanctions in the case of persons who engage in activities for the sole purpose of securing international protection. RESENTATION OF THE P REFERRED P OLICY O PTION SSESSMENT OF P REFERRED P OLICY O PTION EN 39
Rating Motivation of the rating and relevant aspects of the preferred policy option 4 The preferred policy option can be expected to have important positive impacts in terms of ensuring full compatibility with the relevant standards. In particular, it would : inclusive of the - reduce the risk that persons are returned to (part of ) a country where their access to effective protection cannot be ensured, by limiting the broad interpretation of `actors of protection' and "internal protection"; of -reduce the risk of denial of protection in cases i) where persons are persecuted for reasons not related to a Geneva Convention ground, but where State protection is withheld for such reasons, by ensuring a more inclusive interpretation of the `nexus requirement' and ii) where issues arising from an applicant's gender are not sufficiently taken into account for the purposes of identifying a particular social group, by requiring that gender-related aspects should be given due consideration; -reduce the risk that persons who have suffered atrocious forms of persecution/harm are returned to their country of origin, by introducing a compulsory exception to cessation relating to compelling reasons arising out previous persecution/serious harm; - remove all differences of treatment of refugees and beneficiaries of subsidiary protection which are currently allowed by the Directive and which can no longer be considered as in line with the principle of non-discrimination 4.5 The preferred option would substantially enhance the rights of beneficiaries of subsidiary protection ensuring equality of treatment with refugees in relevant aspects. In particular, it would grant them: the right to a residence permit valid at least three years; the right to travel outside the MS' territory under the same conditions as refugees; unconditional access to employment and employment-related education activities; increased access to social welfare and healthcare; enhanced access to integration facilities; benefits for family members under the same conditions as those applicable for family members of refugees. EN 40
Rating Motivation of the rating and relevant aspects of the preferred policy option 4.5 As a result of the provisions introduced by the preferred option, beneficiaries of international protection would have enhanced access / rights regarding: -Procedures for recognition of their qualifications: MS would be encouraged to adopt appropriate procedures for those cases where beneficiaries of international protection lack documentary evidence of their qualifications, and to exempt beneficiaries of international protection from fees or grant them financial assistance if they are unable to cover the costs; of -Vocational training and employment: MS would be obliged to provide beneficiaries of protection with employment support and would be encouraged to facilitate their access to suitable training; - Integration programmes: MS would be obliged to ensure access to appropriate integration programmes that take into account their specific needs - Access to accommodation: MS would be encouraged to put in place anti-discrimination policies - Access to rights and benefits for beneficiaries of protection who obtained their status on the basis of "manufactured" claims: MS would no longer have the possibility to restrict this access - Best interests of the child: The broadened definition of "family members" takes into account ensures the full respect of the best interests of the child 4.0 The preferred option can thus be expected to facilitate, streamline and enhance the quality, the fairness and the effectiveness of the asylum process mainly in two ways: of the - As a result of the removal of the current ambiguities and of the clarification of the grounds for protection, the Directive's notions would leave less room for doubt, uncertainty and administrative error, so as to enable asylum authorities to better deal with cases of unfounded and abusive applications and more generally to process claims more rapidly while reaching robust decisions. Therefore, more cases would result in a final decision already in the first instance and prolonged litigations would be avoided. This would also lead to quicker access to the rights set out in the Qualification Directive for persons genuinely in need of protection while at the same time supporting MS' efforts to rapidly remove from the territory failed asylum seekers and improving the credibility of the whole process leading to a better public perception of asylum. This result would be achieved in particular through the clarification and better definition of the concepts "actors of protection", "internal protection", "nexus requirement" and "membership of a particular social group". - As a result of the approximation of the rights granted to the two categories of beneficiaries of protection, the authorities would no longer need to apply separate conditions and procedures regarding residence permits and travel documents, access to employment, social welfare, healthcare and benefits for family members and to integration programmes. 3.5 The preferred option would imply significant progress towards a more consistent application of agreed high protection standards across Europe to the extent that it would eliminate derogations, clarify and better circumscribe definitions and approximate the rights of beneficiaries of subsidiary protection and refugees. Consistent application would be particularly enhanced through the following amendments: agreed high - The clarification and better definition of the concepts "actors of protection", "internal protection", "nexus requirement" and "membership of a particular social group"; - The elimination of the possibility to apply the concept of internal flight alternative notwithstanding technical obstacles; - The elimination of the possibilities for MS to grant beneficiaries of subsidiary protection and their family members a lower level of rights than those of refugees; - The elimination of the possibilities for MS to apply sanctions in the case of beneficiaries of international protection who obtained protection on the basis of "manufactured" claims; - The broadening in compulsory terms of the definition of "family members". It should be noted however that some of the elements that form part of the preferred option enhance the consistent application of agreed high protection standards to a lesser degree than others, to the extent that they merely encourage MS to take certain measures or allow them a certain degree of flexibility. This is the case notably with the provisions aimed at facilitating the access of beneficiaries of international protection to suitable training, to EN 41
Rating Motivation of the rating and relevant aspects of the preferred policy option procedures for the recognition of qualifications and to integration facilities. The practical cooperation activities foreseen as part of the preferred policy option would also significantly contribute to reducing divergences in national approaches and decision-making practices. and 3.5 The elements outlined above that would promote a more consistent application of agreed high protection standards across Europe (notably the removal of possibilities for derogations regarding both grounds and content of protection and the clarification and better definition of grounds of protection) would evidently also promote a more consistent transposition and implementation of the Directive. However, a few provisions merely include an encouragement or terminology that may be interpreted in different ways in the MS. In most such cases, the preferred option foresees practical cooperation in order to achieve a common understanding. In terms of implementation, inconsistencies could arise concerning in particular with regard to the following elements of the preferred option: The entities which may be considered actors of protection: Practical cooperation between the MS would serve to explore the different interpretations of "parties" and jointly define which actors of protection in certain third countries are potentially able to effectively ensure such protection. The criteria for the assessment of accessibility of protection: Practical cooperation could help MS map the criteria they apply in the context of the "reasonableness" analysis and to reach a joint understanding of how accessibility of protection should be assessed. MS could also exchange information relevant for the assessment of the existence of an internal flight alternative in specific third countries, whereas the enhanced Country of origin information to be provided by the EASO would significantly improve the quality of such assessments throughout the EU. The elements in the situation in the country of origin which are relevant for the definition of a particular social group: MS could cooperate to jointly map the interpretation of the ground and its effects on the process and outcomes of determining whether an applicant is to be granted international protection or not, which would serve as a basis to approximate national decision-making. The criteria to assess what integration programmes may be considered appropriate so as to take into account the specific needs of beneficiaries of international protection: Practical cooperation would serve to develop common approaches and tools with regard to integration programmes and support provided to beneficiaries of protection. The modalities of policies aimed at preventing discrimination regarding access to accommodation: Practical cooperation would help MS map best practices in the context for instance of the ERF, the Integration Fund and the European Social Fund and identify the most effective and efficient ways in terms of actively assisting beneficiaries of protection in the search for accommodation meeting their individual needs and/or providing financial assistance (housing allowances or subsidies). The criteria to define the best interests of the child : Practical cooperation could include exchange of good practices Practical cooperation would evidently serve to ensure a consistent implementation of other provisions as well. For example, to approximate national decision-making on the implementation of the nexus requirement; explore what works best (and efficiently) in relation to procedures for recognition of competences gained in third countries; identify good and cost efficient practices concerning facilitation (also in financial terms) of access to recognition procedures, vocational training and employment. 3.5 Some of the elements that form part of the preferred option could lead to increased costs for providing protection to higher numbers of applicants and for granting to beneficiaries of international protection the enhanced rights attached to their status. Financial implications will vary amongst MS depending on e.g. the existing support and measures in place, numbers/proportion of beneficiaries of international protection etc. On the other hand, by frontloading, streamlining and enhancing the quality of the first-instance examination of asylum applications, as well as by reducing appeals, it can lead to a decrease in the financial and administrative costs of national asylum processing systems. Moreover, by reducing differences of legal frameworks and decision making practices and achieving further harmonisation of the criteria used to grant protection as well as of the rights granted, the envisaged amendments can be expected to lead to a reduction of secondary movement and thus to reduce the costs incurred by MS, in particular, for the implementation of the Dublin system. Furthermore, in the longer term, the initial investments into integration support could be absorbed to a certain extent by the positive economic and social effects of sustainable employment and successful integration of beneficiaries. For a detailed analysis see under 6.3 3.5 Certain legislative elements of the preferred option may invite objections from some MS, which e.g. would prefer retaining a higher level of flexibility in the application of the Directive, in particular those options that may have costs implications as higher numbers of statuses would be granted, and/or rights would be increased. EN 42
Rating Motivation of the rating and relevant aspects of the preferred policy option Most MS are in principle in favour of the following elements (few objections are therefore expected): clarification of nexus requirement; introducing "compelling reasons" exceptions to cessation; access to rights and benefits independent of whether the person acted in `bad faith' in order to obtain protection; the conditions for granting benefits to family members of beneficiaries of subsidiary protection; approximation of rights regarding access to social welfare, healthcare and integration facilities for beneficiaries of subsidiary protection. Examples of elements where objections can be expected to include: Limiting the broad interpretation of the concepts "actors of protection" and "internal protection" (MS which apply a more restrictive interpretation may object); Ensuring a more inclusive interpretation of the concept "particular social group" (MS which do not define a particular social group on gender-related aspects alone may object); Enhancing access to training and employment (opposition from certain MS that currently do not provide adapted services and support can be expected); Provision of integration facilities taking into account the specific needs of beneficiaries of international protection (may be perceived by certain MS as restricting their flexibility in the field of integration policy); The right to a three year residence permit for beneficiaries of subsidiary protection (consultations revealed some reservations). 4.5 The preferred option contains several elements which would produce positive social effects: Increased access to protection and justice: a higher number of persons may obtain protection as a result of the clarification and definition in line with international standards of concepts: actors of protection, internal protection, nexus requirement, particular social group; introduction of limitations to cessation; certain amendments enhance access to protection in particular for female applicants (regarding the nexus requirement, particular social group). Increased social integration and access to the labour market as a result of the measures to assist in the social and vocational integration of beneficiaries of protection (measures that take into account their specific needs regarding access to training, employment, integration facilities, recognition of qualifications, housing). Increased access to social protection because of improvements of rights and benefits, in particular for certain categories of beneficiaries or their family members (limitations to cessation; elimination of the possibility to restrict benefits in cases of "bad faith"; rights of family members, enhanced rights of the child). Increased equality/non-discrimination: in particular as a result of the measures that give beneficiaries of subsidiary protection - and their family members - the same rights as refugees, and of the amendments which enhance access to protection in particular for female applicants (regarding the nexus requirement, particular social group). Better public health: some measures have a direct positive effect, such as increased rights to social welfare and healthcare (elimination of possibilities to restrict access of beneficiaries of subsidiary protection to social welfare and health care, elimination of the possibility to restrict benefits in cases of "bad faith", enhanced rights of family members), whereas others have an indirect effect, e.g. via enhanced access to employment/integration. However, some elements of the preferred option such as enhanced access to the labour market and accommodation could also be viewed negatively by nationals, in particular in the context of the current financial crisis. on 4.5 The preferred option would promote the following rights of the EU Charter: Article 7: Respect for private and family life (enhanced rights of family members, access to accommodation under the same conditions as nationals) Article 14: Right to education (enhanced access to education and training, to recognition of qualifications and to integration programmes) Article 15: Freedom to choose an occupation and right to engage in work (enhanced access to education and training, to recognition of qualifications and to integration programmes) Article 16: Freedom to conduct a business (enhanced access to education and training, to recognition of qualifications and to integration programmes) Article 18: Right to asylum (amendments to concepts: actors of protection, internal protection, nexus requirement, particular social group; limitations to cessation; elimination of possibility to restrict benefits in cases of `bad faith') Article 19: Protection in the event of removal, expulsion or extradition (amendments to concepts: actors of protection, internal protection, nexus requirement, and particular social group; limitations to cessation) Article 21: Non discrimination (amendments aimed at approximating the rights of beneficiaries of subsidiary protection to those of refugees) EN 43
Rating Motivation of the rating and relevant aspects of the preferred policy option Article 24: Rights of the child (amendments to concepts: actors of protection, internal protection, particular social group; longer duration of residence permits for beneficiaries of subsidiary protection, enhanced access to integration facilities, to, education, training and employment, access to accommodation under same conditions as nationals, measures ensuring better respect for family life). Article 34: Social security and social assistance: (elimination of possibilities to limit access of beneficiaries of subsidiary protection and certain family members and of the possibility to restrict benefits in cases of `bad faith' ) Article 35: Healthcare: (elimination of possibilities to limit access of beneficiaries of subsidiary protection and certain family members and of the possibility to restrict benefits in cases of `bad faith') on third - As refugee flows are mainly determined by push factors, it is impossible to determine if and to what extent- the preferred option would have an impact on the overall asylum flows to the EU see above under 2.2.7 6.4.1 Potential costs MS potentially affected Numbers of applicants 49 and of beneficiaries of international protection potentially affected 50 Other available indications on potential costs All MS with the exception of DK Based on a calculation of the hourly labour costs of MS asylum personnel at a rate of EUR 23.84, the likely total administrative costs of the preferred policy option amount to EUR 3,094,407. The assessment of these costs is presented in detail in Annex 25. to provide i) to asylum Activities related to context of practical It might affect in particular the recognition practices of BE, HU, SE and the UK. In 2008 these MS received 15,940, 3,175, 24,875 and 30,545 applications respectively It might affect in different degrees many different MS; a clear picture arises only in the case of the deletion of Article 8(3), which has been transposed by CY DE, IE, LU, NL, PT, SK and the UK In 2008 these 8 MS received in total 81,575 applications Data extracted from table on numbers of applications in 2008; see Annex 4 For total numbers of beneficiaries of international protection (refugees and beneficiaries of subsidiary protection) recognised between 2005 and 2008, see table in Annex 24 EN 44
of notion of 51 It would affect at least the 7 MS which apply a strict definition: IT, LV, LU, PT, RO, SK and the UK. It would also improve access to protection for female applicants, one of the groups that are particularly affected by persecution by non-State actors but denied State protection because of their gender. In 2008 the 7 MS in question received in total 64,495 applications, of which 14,800 were lodged by women 52 . MS which make use of the possibilities to apply cessation: BE, CZ, DE, EL, FR, FI, IE MT, PL and SE. Cessation of refugee status was applied in 2008 in total in 6,715 cases (of which 6,110 in DE, 345 in EL, 95 in FR, 85 in FI, 40 in CZ, 20 in BE, 10 in SE and 5 in IE and in PL). ). In the same year, cessation of subsidiary protection was applied in 305 cases (of which 240 in DE, 40 in SE and 25 in MT) 53 . Overall impacts will vary significantly between MS: - some (such as IE, SE and UK) will practically not be affected at all, as they make no differentiation regarding the rights granted; - a majority of MS (including AT, BE, CZ, EE, FR, PL, RO and SI) maintain few differences (notably regarding the duration of residence permits), - whereas some MS make use of the possibilities for differentiation in different respects (CY, DE, LU, LV, MT, PL, PT) AT, LU and ES would need to change the format of the travel documents they currently issue. The implementation of this amendment will not imply any costs in terms of rights. The numbers of beneficiaries of subsidiary protection in these MS in 2005-2008 amount to 105, 840, and 215 respectively. It should be further noted that only part of these populations would seek to acquire a travel document. to humanitarian It will affect CY, DE and LU The numbers of persons aged 15-64 who received subsidiary protection in these MS between 2005 and 2008 can be estimated at 445, 1,925 and 504 respectively. The comparison of these numbers with the numbers of persons aged 15-64 in the labour force of these MS shows that the impact of this amendment on their labour markets will be minimal: the numbers of beneficiaries of subsidiary protection who would potentially benefit from this amendment represent a percentage of 0.11% for CY, 0.0046 % for DE, and 0.23% for LU of the labour force of these MS protection with 54 . In reality, this impact will be even lower, as the overall numbers of beneficiaries of subsidiary protection of See Table in Annex 7 See Table in Annex 7 See tables in Annex 18, under section 1.2 See table in Annex 26. Data for Cyprus could not be disaggregated by age, so the figure of 445 includes all ages. Data were not available for 2008, so the data for Cyprus cover only 2005-2007. EN 45
55 ). The approximation of rights Due to the lack of information on the cost of social welfare/healthcare granted to refugees in these States and the cost of the core benefits they currently grant to beneficiaries of subsidiary protection, it is impossible to quantify the financial implications of the assimilation of the rights of beneficiaries of subsidiary protection to those of refugees in this respect. An indication of the potential magnitude of the costs can only be provided on the basis of the populations of beneficiaries of subsidiary protection hosted in these MS for the period 2005-2008: 3,375 (DE), 340 (LU), 5 (LV), 3,010 (MT) and 95 (PT). regarding social welfare would affect DE, LU, LV and PT whereas the of beneficiaries of approximation regarding healthcare would affect only MT. The only MS affected would be PL. As there is no information available neither on the nature of the applicable conditions, nor on the numbers of family members that might be concerned or the costs of the benefits, the only indication is the number of beneficiaries of subsidiary protection in this country, i.e 7,820 persons between 2005 and 2008. of subsidiary It may be expected to affect at least 8 MS: BG, CZ, DE, EE, HU, LT, SK and PT. As there is no information available on what this "appropriateness test" signifies in their national practices, it is not possible to estimate the numbers of beneficiaries of subsidiary protection who are currently deprived of such access nor the numbers of beneficiaries who would benefit from this amendment. Due to the variation of the content of integration programmes in the different MS 56 it is also not possible to identify the additional integration facilities to which they would have access as a result. Relevant data indicate that the ensuing costs will be very limited: the total population of beneficiaries of subsidiary protection in these countries for the period 2005-2008 amounted to 5,495 persons whereas the average per capita cost of integration programmes provided by one MS (PL) for the period 2005-2007 (EUR 682) 57 The only indications which may be drawn from the data available is that at least 4 MS (BE, NL, SK and SE) have in place procedures for the The piecemeal information available on current practices in MS and the absence of data on the costs of such procedures, or on the numbers of beneficiaries of protection who have recourse to such procedures does not allow for a quantification of impacts of the amendments aimed at encouraging the use of alternative procedures and exemptions from the fees or grants to cover the fees. qualifications of facilitation of access to recognition of qualifications for beneficiaries of international protection compared to nationals whereas at least 6 MS (EL, HU, LU, MT, PL and RO) do not. Moreover, it appears that, amongst those In the 6 MS that might be affected by the introduction of alternative procedures if they decide to transpose the new optional provisions - the numbers of persons aged 15-64 who were granted protection between 2005-2008 amounted to 1,019 (EL), 1,089 (HU), 1,608 (LU), 6,028 (MT), 11,977 (PL) and 284 (RO) MS where recognition procedures are not free of charge, at least 4 MS provide beneficiaries of protection with financial assistance (LU, RO, SK SE), whereas at least 4 others not (CY, EE, EL, LV). 58 . Along the same lines, in the 4 MS that might be affected - if they accepted to introduce financial measures for the facilitation of access- these numbers amount to 0 (EE), For more detailed information on the prevalence of torture amongst asylum seekers and refugees see Annex 27 See Annex 9 Poland is the only MS that provided information on such costs, see Annex 28 See table in Annex 26 EN 46
59 . Again, it should be noted that the impact will be even lower, as these numbers comprise persons who will not in reality seek to recognise skills or qualifications as well as persons who will not need any specific facilitation arrangements or financial support. More importantly however it should be noted that recognising existing skills and competences is far less costly than educating and training persons with no such abilities: for instance it can cost as little as £1,000 to prepare a refugee doctor to practise in the UK compared to £250,000 to train a doctor from scratch. It further appears that re-qualification projects have a success rate of more than 80% 60 . Information available does not allow for the identification of those MS which might be affected. There is no precise information on measures currently in place or costs of such measures. MS only provided overall costs for certain projects, without any indications on numbers of beneficiaries, so that valid costs estimations cannot be done. For instance, regarding job seeking assistance: Austria: 433,211.28; Hungary: 2,000; and, Slovenia: 2006: 14,457.15; 2007: 23,753.82; and, 2008: 13,116.52 The impact should be limited, as beneficiaries of protection aged 15 64 recognised in EU27 between 2005 and 2008 are estimated at 245,132 and thus represent only 0.1% of the EU labour force (estimated 62 . However, since relevant measures and structures must already exist for the benefit of nationals, the costs of extending them to beneficiaries of international protection should be limited. in 2008 at 238,533,800) 61 . Again, it should be noted that these numbers also comprise persons who will not in reality seek to use such support mechanisms programmes On the basis of available Poland was the only country that provided data on numbers of refugees and costs of integration programmes: The average per capita cost for the period 2005-2007 was EUR 682. Information provided by other countries was not specific enough to allow for further per capita estimations information, it is not possible to identify which MS and to what extent specific needs of would be affected. However, since all MS offer integration programmes to 64 . beneficiaries of protection and more generally to legally residing third country nationals, it can be expected that It should also be noted that the information provided by Poland refers to "general" integration programmes provided to beneficiaries of international protection; no information has been provided on costs for developing and providing such specifically targeted programmes more targeted/specific programmes can draw on the know how, structure and resources already in place. A relevant indication in this respect is that persons granted international protection in the EU between 2005-2008 (and thus - at least partly - eligible to benefit from integration programmes nowadays) represent only 1,07% of the EU population of third-country nationals 63 . See table in Annex 26. Data for Cyprus could not be disaggregated by age, so the figure of 445 includes all ages. Data were not available for 2008, so the data for Cyprus cover only 2005-2007. See Annex 10 presenting the results of projects conducted in different MS. See table in Annex 26. A full overview of the information provided by the MS is presented in Annex 29. See table in Annex 24 For all available information see Annex 28. EN 47
elimination of the to reduce the granted where The numbers of beneficiaries of international protection in these MS for the period 2005-2008 are as follows: 815 (BG), 540 (CY) and 3,100 (MT). On the basis of the information available on national practices it is not possible to identify which MS do not have in place such policies It is impossible to indicate with precision the changes in the legislation and the additional implementing measures that the MS which would accept to put in place such policies would need to implement or to estimate relevant costs, as there is no precise information on the measures actually implemented and the relevant costs. access to The 14 MS which currently do not apply broader definitions, DE, ES, FR, LV, LT, LU, HU, MT, NL, PL, RO, SI, SK, UK would be affected. It is not possible to estimate the impacts since there is great variation in the MS' current practices and there is no information on the costs of the relevant benefits or on the numbers of persons who would benefit from such a broadening. According to a UK report, the number of "dependants" accompanying or subsequently joining principal applicants in 2007 were estimated to an average of 1 dependant for every 5 principal applicants. This report also notes however that an average 22% of such dependants were granted protection themselves 65 . Moreover, the Directive's definition would cover only those dependants who are minors. Both these factors mean that the percentage of dependants who would fall within this definition would be even smaller. The total number of persons having received international protection in the 14 MS concerned in 2005-2008 amounts to 92,590. Taking into account the above estimates, the overall number of "dependants" in a broad sense could be estimated at less than 18,500. It is however impossible to estimate how many amongst them are already covered by the Directive's definition of family members or would benefit from its broadening. 6.4.2 Potential savings UK Home Office statistical bulletin: Asylum statistics 2007, available at http://www.homeoffice.gov.uk/rds , para. 18 -21. EN 48
66 . 67 , appeals can double the cost of an asylum claim. As an indication of the considerable 68 . 69 whereas the . 6.4.3 Assistance from the European Refugee Fund and from the Asylum Support Office 70 . In particular, the list of eligible actions includes: advice and assistance in areas For more information see Commission report on the evaluation of the Dublin System (SEC(2007) 742), p 14. In the context of the consultations, MS were asked to provide information on the costs of appeal procedures and, if possible, the breakdown of these costs. However, no such data were provided. A single indication can be found in the Report by the UK Home Office "Management of asylum applications by the UK Border Agency" of 8 January 2009, available at www.nao.org.uk See Annex 17 This data includes however services provided in some MS to other third country nationals (see Impact Assessment on the revision of the Reception Conditions Directive, p. 45); for more detailed information see a summary of data available in Annex 30 The Community contribution is 50% as a rule, but increased to 75% for actions addressing specific strategic priorities and in the MS covered by the Cohesion Fund (Article 14(4)). EN 49
6.4.4 Longer term benefits of successful integration EN 50
ONITORING AND E VALUATION 71 , which Numbers of asylum applicants or persons having been included in an asylum application as family members Numbers of applications having been withdrawn Numbers of persons covered by first instance decisions rejecting applications Numbers of persons covered by first instance decisions granting or withdrawing refugee status or subsidiary protection Numbers of applicants who are considered to be unaccompanied minors Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection and repealing Council Regulation (EEC) No 311/76 on the compilation of statistics on foreign workers (OJ L 199, p. 123) EN 51
Numbers of persons covered by final (appeal) decisions granting or withdrawing refugee status or subsidiary protection Numbers of Dublin requests for taking back or taking charge of asylum applicants Numbers of Dublin transfers EURODAC hits Costs of national actions relating to reception of asylum applicants Costs of national actions relating to integration of beneficiaries of international protection Numbers of persons benefiting from ERF-funded national actions Level of financial resources allocated to MS from the ERF Transposition by all Member States of the amendments proposed 72 : See relevant Proposal op.cit. Fn 3, in particular Articles 3,11 and 12. EN 52
EN 53
