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Brussels, 21.10.2009 SEC(2009) 1376 COMMISSION STAFF WORKING DOCUMENT accompanying the Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL international protection Impact Assessment {COM(2009) 554} {SEC(2009) 1377} EN
Background .................................................................................................................. 4 Policy context ............................................................................................................... 4 The current political feasibility of revising the Directive ............................................ 5 Organisation and timing, consultation and expertise ................................................... 6 The Impact Assessment Board ..................................................................................... 7 Problem definition ........................................................................................................ 7 Scope of the problem.................................................................................................... 7 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 .................................. 9 Statistical evidence of insufficient harmonization ..................................................... 10 The effect of insufficient harmonization on secondary movements and distribution of asylum seekers amongst MS ...................................................................................... 11 Difficulties in quantifying assessments ...................................................................... 12 Specific problems ....................................................................................................... 12 The baseline scenario ................................................................................................. 21 Does the EU have the power to act?........................................................................... 22 The EU's right to act ................................................................................................... 22 Added value of EU action and respect for the principle of subsidiarity .................... 22 Objectives ................................................................................................................... 24 Global objective ......................................................................................................... 24 Specific objectives...................................................................................................... 24 Operational objectives ................................................................................................ 25 Assessment of policy options ..................................................................................... 26 Status Quo .................................................................................................................. 26 Presentation of sub-policy options ............................................................................. 26 To ensure access to asylum procedures...................................................................... 26 To remove derogations and improve procedural safeguards...................................... 28 To improve guarantees for applicants with special needs .......................................... 30 EN 2
To consolidate the application of the safe country of origin notion........................... 34 To reinforce MS' capacity to deliver reliable decisions within a reasonable time ..... 36 To enhance accessibility and quality of remedies ...................................................... 38 Summary of an additional policy option identified.................................................... 39 Presentation of Preferred Policy option...................................................................... 40 Assessment of Preferred Policy Option...................................................................... 40 EU added value .......................................................................................................... 40 Respect for the principle of proportionality ............................................................... 41 Summary of relevance, feasibility and expected impacts .......................................... 42 Potential magnitude of financial impacts ................................................................... 46 Potential costs............................................................................................................. 46 Potential savings......................................................................................................... 48 Assistance from the European Refugee Fund and from the Asylum Support Office 49 Tackling any increase in abuse of the asylum system................................................ 49 Evaluation and monitoring criteria............................................................................. 50 EN 3
EAD USTICE REEDOM AND ECURITY P ROCEDURAL I SSUES AND CONSULTATION OF INTERTED PARTIES Background 1 , defined a road-map for the coming years and listed the measures that the 2 , and, on 18 February 2009, a proposal for the establishment of a European COM(2008) 360, SEC(2008) 2030. 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 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 EN 4
4 , to be nd phase will start taking into account the results of the consultations with 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 2004/83/EC of 29 April 2004 (OJ L 326, page 13) EN 5
5 , including 20 MS, regional and local authorities, the Committee 6 , desk research and bilateral consultations The 89 contributions received are available at: http://ec.europa.eu/justice_home/news/consulting_public/gp_asylum_system/news_contributions_asym_ystem_e.htm . A detailed overview of consultations undertaken to inform this impact assessment is provided in annex 2. EN 6
7 . The Impact Assessment Board 8 . In particular, the IA provides a quantified analysis of the P ROBLEM DEFINITION Scope of the problem 9 . This reflects a long term 10 . This 11 . Despite rises and falls of asylum claims, protection motivated arrivals See Asylum Procedures. Report on policies and practices in IGC participating states. May 2009. The option of the Impact Assessment Board will be available at http://ec.europa.eu/governance/impact/cia_2009_en.htm. Asylum level and trends in industrialised countries. Statistical overview of asylum applications lodged in Europe and selected Non-European Countries, 24 March 2009, UNHCR, page 13 Table new asylum applications 1987-2007, see Annex 2. Data extracted from EUROSTAT available at: http://nui.epp.eurostat.ec.europa.eu/nui/show.do EN 7
12 . It was precisely with a view to limiting the impact clude: than those established by the acquis ; 13 . 14 . This possibility cannot be precluded and the Further factors include linguistic and cultural links, family ties, the presence of immigrant communities as well as geography. As will be discussed below under section 2.2.4, some MS receive higher 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. The vagueness and the ambiguity of the Directive also make it difficult to substantiate infringement cases, thus limiting the effectiveness of the Commission's monitoring activities. Pursuant to Art. 5 APD, MS may introduce or maintain more favourable standards on asylum procedures, insofar as those standards are compatible with the Directive. EN 8
15 , (ii) be in compliance with 16 , and (iii) respect the fundamental rights flowing 17 . To comply with international 18 . To this effect, the basic requirements include the principle of a 19 . The directive's standards may not be lower than these 20 . The general principles of Community Law 21 , and the right to be heard, the principle of "equality of a N otions designed to respond to specific challenges faced by The Tampere European Council conclusions, as reiterated in Recital 3 of the Asylum Procedures Directive. Point 1 of first paragraph of Article 63 TEC See the ECJ judgements in Soprope, C-349/07, para. 33; Dynamic Medien, C-244/06, para. 39-41; Promusicae, C-275/06, para. 62-64, and C-540/03, para. 35-39. See the ECtHR judgements in Bahaddar, 19 February 1998, para. 45 and Jabari, 11 July 2000, paras 39 -40. See Conclusions on the International Protection of Refugees, The Executive Committee of the UNHCR Programme No 8, 30 See, for example, Article 53 of the European Convention of Human Rights Panayotova, 16 November 2004, Case C-327/02, para 27 EN 9
22 . unanimity requirement and compromises reached at the While the cumulative effect of insufficient and vague standards make procedures susceptible DG JLS analysis of national transposition measures. st instance decisions and therefore have an impact on the distribution of 23 ), MS to lower This, in particular, concerns the safe country of origin notion, grounds for an accelerated examination and border procedures. Yet, the ways these notions have been implemented in national systems vary significantly between MS. 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 25. EN 10
Percentages of total positive decisions in the different MS in 2005 - 2008 varied from 65,9 % in Lithuania and 57 % in Italy, to 44,1% in Austria and 41,5% in Sweden, to 23,8 % in Germany, to 5,3 % in Spain, to 2,4 in Slovenia, to 1,3 % in Greece. Recognition rates in different MS for applicants from the same nationality for the period 2005 2007 varied significantly: for instance, for asylum seekers from Russia (mostly of Chechen background), from 63% in Austria to 0% in Slovakia; 98 % of Somali asylum seekers received protection in Malta, 55% - in the UK and 0% in Greece. seekers amongst MS 25 , Belgium, 26 . Trends in This is, in particular, illustrated by flows of Iraqi asylum seekers' to Sweden Annual report to the Council and the European Parliament on the activities of the EURODAC Central Unit 2006, SEC(2007)1184, Brussels, September 2007, pp.48-49 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. EN 11
27 . While 28 . Furthermore, protection is granted on a case by case basis, based 29 , the decrease is attributable to a serious Data refers to wars in former Yugoslavia in 1992-3 and 1998-9, Gulf War I in 1990-1, and Afghanistan in 1999 2005 T. Hatton, Discussion paper "The rise and fall of asylum: what happened and why?", March 2008, the Australian National University, Centre for Economic Policy Research, page 4. See T.Hatton, European Asylum Policy, National Institute Economic Review, 1994 EN 12
30 . Based on the number of 31 . Indicatively, the length 32 . The 33 factual mistakes or misunderstandings are common in the reports having direct 34 . The ECJ case law further indicates that the grant of free legal 35 . The directive does not require MS to grant free 36 . A number of MS have remedied this gap in 37 . Others, however, literally follow the Directive's arrangement allowing 38 . These include Cyprus, Estonia, France, Greece, Malta, Poland, Portugal, Slovenia, Spain, and UK A study of the implementation of the Qualification Directive, UNHCR, November 2007, page 33. Out of 1,085 cases examined On 17 March 2008, the Commission convened an experts' meeting attended by practicing immigration lawyers representing asylum applicants in national asylum procedures of 19 MS (Sweden, Lithuania, Slovakia, Italy, Ireland, Hungary, Greece, Romania, the UK, Finland, Germany, Estonia, Austria, Czech Republic, Cyprus, Poland, Slovenia, Malta, Latvia). Pursuant to Article 47 of the Charter, legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. Evans, Case C-63/01, 4 December 2003, paras 77, 78. In particular, the ECJ emphasised that the less advantageous position and conditions under which the person is able to submit his/her comments may be decisive for granting legal aid in a procedure aimed at safeguarding rights which individuals derive from Community law. Article 15 APD Austria, Belgium, Lithuania, Luxemburg, Sweden, the Netherlands, Finland, United Kingdom, Hungary These include Greece, France, Italy, and Cyprus. EN 13
39 . In Thlimmenos, the ECtHR also emphasized that the right 40 . International treaties 41 promote a similar approach by prohibiting 42 . The UN Child Rights Convention (the CRC) explicitly obliges participating 43 . 44 Secondly, it has been argued that certain provisions of the Directive may indirectly See Article 21 (1) CFR Thlimmenos v. Greece, Application No. 34369/97, 6 April 2000, para 44 The relevant treaties include: the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDW) and the 1989 Convention on the Rights of the Child (CRC) See inter alia General recommendation No. 25 on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures by the UN Committee on the Elimination of Discrimination against Women, available at http://www.un.org/womenwatch/daw/cedaw/recommendations/General%20recommendation%2025%20(Englis h).pdf Article 22 CRC See e.g. Psychological and psychiatric aspects of recounting traumatic events by asylum seekers, in Care Full, Medico-legal reports and the Istanbul Protocol in asylum procedures, edited by René Bruin, Marcelle Reneman, Evert Bloemen,pp.42-85, 2006. EN 14
45 on the rehabilitation needs of asylum seekers in 14 MS point to 20%. This 46 , there are no gender guidelines and at least 7 MS do not have legislation allowing the 47 ; only 5 MS confirmed that 48 49 . It has also been argued that the 50 . 51 52 . Data refer to the IRCT study carried out in 14 MS in 2007. Austria, Belgium, Bulgaria, Cyprus, Hungary, Lithuania, Latvia, Malta, Poland and Slovakia Finland, Cyprus, Latvia, Malta, Sweden, Slovakia and Poland In Finland, gender-related aspects are taken into account as one element in an overall evaluation of asylum procedures. In Czech Republic and Malta, this is done through the analysis of the interview (Czech Republic) and through the Country of Origin Information (Czech Republic and Malta). In Hungary, the UNHCR monitors the refugee determination procedure on its gender-sensitiveness on an annual basis, and there is a "Standard operating procedures for prevention of and response to sexual and gender-base violence" under construction in cooperation with the UNHCR. The right to make an application for asylum on his/her own behalf is explicitly recognised for each adult having legal capacity only pursuant to Article 6 (2) APD. The current framework is based on the assumption that all third country nationals, including unaccompanied minors, should first make an application for asylum in order to benefit from the guarantees set out in the acquis. This leads to the situation of a "vicious cycle". Pursuant to Art. 2 (i) APD , [...]`representative' means a person acting on behalf of an organisation representing an unaccompanied minor as legal guardian, a person acting on behalf of a national organisation which is responsible for the care and well-being of minors, or any other appropriate representation appointed to ensure his/her best interests. EUROSTAT provisional data for 2008. EN 15
53 , indicate that some 77 % of st instance decisions presumably corrected by appeal bodies in 2007. This are limited to 3 mandatory requirements, 54 , while the persons concerned are not necessarily provided with adequate arrangements to 55 . While reliable 56 or advocacy work 57 on behalf of refugees have reported cases of de facto asylum Data concerns BE, DK, UK, SP, GE and FR. Regulation (EC) No 562/2006 of 15 March 2006 See Access to protection at airports in Europe, Hungarian Helsinki Committee, op.cit, also UNHCR's Response to the European Commission's Green Paper on the Future Common European Asylum System, September 2007 See, for example, the report Access to protection at airports in Europe, Hungarian Helsinki Committee, August 2008 In particular, in 2007 and 2008 Pro Asyl and Human Rights Watch published reports, based on individual interviews with asylum seekers, describing difficulties to access territory and asylum procedures in the context EN 16
58 . Similarly, 12 MS have 59 . All these procedures are 60 . It also appears that the opportunity to present 61 , and MS may consider cases falling 62 . In addition, MS may accelerate or prioritise 63 . In effect, therefore, the procedures may be expedited on any 64 . This has resulted in the proliferation of diverse procedural 65 , and some have introduced additional grounds which do not appear in the directive 66 . of border surveillance in the Mediterranean Sea, see Stuck in a Revolving Door by Human Right Watch and The truth may be bitter, but it must be told by Pro Asyl. Czech legislation explicitly stipulates that an interview shall not be conducted in cases where the application is deemed as inadmissible, Article 23 (1) of the Asylum Act. In Lithuania, the inadmissibility decisions are taken by the determining authority on the basis of screening interviews conducted by border guards or police officers. These include Austria Estonia, Germany, Greece, Czech Republic, France, Hungary, Portugal, Romania, Slovakia, Slovenia, and Spain . Data refer to the ANAFE report of September 2008 on access to procedures in transit zones. See Article 23 (4) in conjunction with Article 12 (2) (b) APD. See Article 28 (2) APD. Based on the consultation, it appears that in most cases, accelerated procedures lead to a negative decision. Article 23 (3) APD The Directive is silent on the issue of time frames for accelerated or prioritised procedures. In the consultations, Hungary was the only Member State who explicitly confirmed that it had not transposed this Article For example, Slovenian legislation refers to an applicant arrived in Slovenia for economic reasons exclusively. EN 17
67 allows for omitting a personal 68 . Also, the share of applications treated through accelerated and prioritised 69 ". 70 . In the 71 . Other 72 , whilst a few MS have benefited from stand still clauses 73 thus applying less 74 . The contents of national lists and the share of 75 . It is also worth mentioning that despite 76 . In the consultations, only 4 MS confirmed that the applicant is allowed to present 77 . At the same Cyprus, Greece, Estonia, France, Malta, Portugal, Slovenia, Poland and UK According to the Greek legislation, all applications lodged at the border or in transit zones at ports and airports of Greece must be subject to accelerated procedures. Bahaddar v. The Netherlands (application 25894/94). Belgium, Latvia, Italy, Slovenia, Poland, Sweden Estonia, Finland, the Netherlands, Portugal Cyprus, Czech Republic, Greece, Ireland, Hungary, Luxemburg, Lithuania, Romania, Slovakia. Some of these MS have also provided for the designation of part of a country as safe. Article 31 (2) (3) APD Germany, France, the UK Similarly, Romania reported 4 cases, Slovakia - 1 case, and Luxemburg 1 case. While in the consultations the UK was not able to indicate the number of cases in which the notion had been applied, the UK Border Agency statistical report for 2007 maintains that 6 500 applicants did not appeal against negative decisions. This number includes non-suspensive appeal cases of applicants from 24 countries which are on the UK national list of safe countries of origin. E.g. Bulgaria, Greece, Hungary, Lithuania These are: Hungary, Lithuania, Luxembourg, and Romania. EN 18
79 . 80 Although forming a constituent part of the 81 . 82 . These initiatives, however, are 83 . In practice, the training programmes for the case workers and decision 84 , other MS rely on ad hoc training. This implies that 85 . Furthermore, the 86 . While these optional provisions have not 87 , border guards in border procedures pursuant 88 , and the immigration authorities in special border procedures pursuant to 89 . E.g. Greece, Estonia, Romania, the UK Non-suspensive appeals are appeals which do not stop the enforcement of a negative decision. The system is in place in Estonia and the UK Case 113/06, Judgement of 6 May 2008. See C. Rousseau, F. Crepeau, P. Foxen, F. Houle, The complexity of determining refugeehood: a multidisciplinary analysis of the decision making process of the Canadian Immigration and Refugee Board. Journal of Refugee Studies Vol.15, No 1, 2002 Quality control units operate within asylum authorities of AU, GE and UK. Articles 4 (3) and 8 (2) (c) APD SE, GE, NL, AU, the UK. An analysis of national training programmes was carried out in the framework of the European Asylum Curriculum project. See also the Commission Staff working document accompanying a proposal for a regulation of the European Parliament and of the Council establishing an European Asylum Support Office, COM(2009) 66 final, SEC(2009) 154, page 9 Article 4 (2) APD provides for 6 exceptions to the principle of a single determining authority. These inter alia include cases involving national security considerations and cases being examined in border procedures. Belgium Estonia France EN 19
90 The 91 . 92 . Causes of subsequent applications are also rooted 93 . In 2008, the success rate of appeals was 28 % against 24,7 % recognition rate Panayotova and others, Case C-327/02. Management of asylum applications by the UK Border agency. Report by the Controller and Auditor General. Op.cit., page 4 Procedures for dealing with subsequent applications are set out in Art. 32 35 APD. Concerns were expressed by AU, CZ and FR. Sources: Annex to the Communication on the Evaluation of the Dublin System, SEC(2007)742, Brussels, June 2007, p.42 ; Annual report to the Council and the European Parliament on the activities of the EURODAC Central Unit 2006, SEC(2007)1184, Brussels, September 2007, pp.48-49 EN 20
The baseline scenario 95 . Given insufficient standards on legal assistance and lack of 96 , national Supreme Courts might not always be accessible for asylum 97 . Yet, as these This estimate is based on the provisional EUROSTAT data for 2008. Article 68 (1) TEC Since the APD entry into force (1 December 2007), the ECJ has not received any request for a preliminary ruling with regard to the APD. With ERF support, UNHCR is currently implementing the quality initiative covering eight MS: Bulgaria, Hungary, Poland, Romania, Slovakia and Slovenia, Austria and Germany. EN 21
Does the EU have the power to act? EN 22
98 . and the uneven distribution of asylum seekers are cross-border issues 99 . While these standards are 100 is that the applications for international protection are treated 101 . Recital 3 APD Pursuant to Article 1 APD, the purpose of the Directive is to establish minimum standards on procedures in Member States for granting and withdrawing refugee status. Other reasons are e.g. geographical location, presence of different migrant communities, historical links with countries of origin, economic situation etc. There will still be differences in the asylum flows due to geography or socio- economic conditions, buts the distortions are expected to be of a lesser scale. EN 23
102 . O BJECTIVES Global objective Specific objectives To ensure that procedures are accessible to persons seeking international protection; To improve the fairness of asylum procedures; To ensure consistent application of common procedural devices; Case C-377/98, Netherlands v Council, para 52, concerning the "Working time Directive" EN 24
To improve access to effective remedy across the EU; To ensure consistency between different EU asylum instruments. 103 Operational objectives to remove obstacles to requesting international protection to ensure correct application of admissibility grounds and border procedures to limit possibilities for MS to derogate from the basic procedural guarantees to provide adequate procedural guarantees, notably for persons with special needs to prevent the proliferation of disparate accelerated and/or manifestly unfounded procedures to ensure consistent application of the safe country of origin concept to provide adequate guarantees for applicants to challenge the presumption of safety when applying safe country concepts to reinforce MS' administrative capacity to handle caseloads and deliver reliable decisions to reduce unreasonably lengthy procedures to improve accessibility of remedies to ensure full review of cases by a court or tribunal to ensure consistency between substantive and procedural rules on international protection to ensure coherence between asylum procedures and Dublin procedures. The assessment of problems and policy options related to this objective are provided in annex 14. The section is not included in the main text, since all 26 MS have introduced arrangements (a single procedure) corresponding to the key element of the preferred option and largely support the concept, as confirmed by the Green Paper and follow up consultations. EN 25
Status Quo Presentation of sub-policy options underline that the territorial scope of the Directive covers territorial waters; provide that MS shall (i) designate competent authorities responsible for registration of applications for international protection and (ii) organise access procedures in a way that enables a person to lodge the application as early as possible; fix a reasonable time limit (i.e. 72 hours) for registering applications for international protection; underline that border guards, police and immigration authorities, and personnel of detention facilities should receive relevant instructions, including the obligation to register or forward the application to the competent authority, whilst other authorities likely to be addressed by someone who wishes to make an application for international protection should be able to advise a person as to how and where he/she may lodge an application. underline that information about the procedures for lodging an application for international protection as well as counselling and interpretation arrangements must be made available for persons who are present at border crossing points or detention facilities and wish to request international protection; specify that organisations providing legal advice and counselling to asylum seekers must be allowed access to persons present at the border, in the transit zones or in detention facilities in agreement with the competent authorities of MS. revise the admissibility grounds, in particular the safe third country notion, with a view to bringing them in line with the Qualification Directive; EN 26
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make it clear that a personal interview must be conducted with all asylum applicants except in well founded cases and in cases where the applicant is unfit or unable to be interviewed; EN 28
specify that extradition treaties may not be used to return an applicant to her/his country of origin; provide for free legal assistance to applicants with special needs in procedures at first instance; extend guarantees applicable to UNHCR partner organisations to other NGOs. require MS to communicate information to an asylum seeker in a language s/he understands; allow a legal advisor or counsellor to be present in a personal interview with an applicant; require MS to make a transcript of the personal interview and give to an applicant an opportunity to comment on its content; allow applicants to have access to the transcript and, where relevant, to the report of the personal interview before a decision is taken. 104 . This element might also be vulnerable to abuse. While Option 4 is capable to support This is relevant e.g. for certain African countries. For example, several (very) different dialects of Swahili exist; in order for the asylum seeker to be able to understand the meaning of procedural actions and decisions, information may need to be provided in the relevant dialect of Swahili. EN 29
define the qualifications of the guardian and specify that the guardian should have the right to apply for international protection on behalf of an unaccompanied minor; EN 30
introduce gender sensitive requirements for interviews, such as an obligation to provide an interpreter of the same sex; require MS to include gender, trauma and age related issues in the training programmes for the personnel of the determining authority. introduce the notion of applicants with special needs and require MS to take steps to give to such applicants the opportunity to present the elements of their application as completely as possible and with all available evidence; lay down the right of a minor to lodge an application on his/her behalf;; delete the current possibility to refrain from appointing a representative (guardian) where the unaccompanied minor is 16 years or older, and provide for free legal assistance to unaccompanied minors throughout the asylum procedures; require MS to inform each adult in private of her/his right to make a separate application, and specify that dependent adults should be given the opportunity of presenting their personal circumstances to the determining authority; require MS to provide survivors of torture with necessary time to prepare for a personal interview on the substance of the application; underline that vulnerability of certain categories of applicants such as unaccompanied minors and victims of torture should be duly taken into account when deciding whether to apply accelerated procedures; specify that interviews with minors should be conducted in a child friendly manner, and underline that gender considerations and international obligations as regards the rights of the child should be duly taken into account when applying the directive. require MS to exempt survivors of torture, persons with mental disabilities and unaccompanied minors from accelerated procedures, based on the notion of manifestly unfounded applications; require MS to exempt unaccompanied minors from the border and safe third country procedures. EN 31
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require MS to conduct personal interviews and provide free legal assistance to applicants in accelerated procedures; underline that the determining authority should be given the necessary time to conduct a rigorous assessment of the application, while preserving MS' discretion to accelerate any examination at first instance. introduce a limited and exhaustive list of grounds for accelerated procedures, based on the notion of manifestly unfounded applications, while preserving MS' discretion to prioritise other claims; require MS to conduct personal interviews, and specify that the determining authority should be given the necessary time to conduct a rigorous assessment of the application. 105 . It could also potentially lead to further Cyprus, Estonia, France, Greece, Malta, Poland, Portugal, Slovenia, and UK EN 33
remove a minimum common list of safe countries of origin, and delete the MS' obligation to consider the application as unfounded where the third country appears on the common list; require MS to review regularly the national lists of safe countries, and specify that all applicants must be given the opportunity of substantiating their application at an interview; remove a minimum common list of safe countries and delete derogations from the material requirements for the designation; require MS to review regularly the national lists of safe countries, and specify that all applicants should be given the opportunity of substantiating their application at an interview. remove the possibility of national designation of safe countries of origin; require MS to consider the application as unfounded where the third country appears on the common list, and give an applicant the opportunity of challenging the presumption at an interview. Option 4: (practical cooperation): map country of origin information (COI) used for the national designation; enhance an exchange of information on the use of the notion within the framework of the EASO and EURASIL and make services of the common COI portal available to MS. EN 34
106 would not use the Belgium, Latvia, Italy, Slovenia, Poland and Sweden do not currently use the notion. EN 35
reduce current derogations form the principle of a single determining authority, and specify that a substantive interview should always be conducted by the personnel of the determining authority; introduce minimum requirements for the content of the interview; require the determining authority (i) to dispose sufficient numbers of specialised in-house personnel who have the necessary skills and expertise to undertake their tasks and (ii) to make external expertise on specific issues available to case owners; underline that the personnel of the determining authority should receive initial and follow up training, and specify the minimum requirements for its content. lay down a reasonable time limit (e.g. 6 months) for taking first instance decisions on the substance of the application; require MS to take into account new elements or representations before a final decision is taken; specify that the subsequent application procedures should not apply to persons whose applications have been rejected as implicitly withdrawn; explicitly merge the subsequent application procedures with admissibility procedures and allow MS to remove an applicant from the territory in cases of multiple subsequent applications frustrating the enforcement of a return decision. EN 36
107 . The eligible costs of the ERF funded The Asylum System Quality Assurance and Evaluation Mechanism Project in the Central and Eastern Europe sub-region being implemented in HU, PL, RO, SI and SK are 624, 824.36 EUR. EN 37
108 Option 1 strengthens the ability of the asylum authorities to specify that the scope of review must cover both facts and issues of law at least in procedures before a first level court or tribunal, and require appeal bodies to conduct an ex nunc examination of the protection needs in line with the Qualification Directive; underline that appeals against decisions taken in border procedures should always have automatic suspensive effect. Same applies to appeals against other first instance decisions with the exception of manifestly unfounded applications, identical subsequent applications and decisions taken pursuant to the Dublin regulation. In the later cases, interim measures could be granted by courts (tribunals) on a case by case basis; provide for an unrestricted right of a court or tribunal to receive the materials used as a basis for the first instance decisions; require MS to lay down reasonable time limits for lodging appeals against first instance decisions with a view to ensuring the accessibility of remedy. describe the stages of appeal process; E.g. Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents; Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. EN 38
lay down the time limits for lodging appeals and taking decisions by courts (tribunals) of different levels. 109 . See operation objectives set out in section 3.3.The problem definition as well as the comparison and assessment of policy options related to these objectives are provided in annex 14. EN 39
provide for a mandatory sequence of an examination of protection needs in line with the Qualification Directive; introduce requirements for decision making at first instance and access to effective remedy in relation to both sets of substantive criteria provided for in the Qualification Directive; extend the Directive's provisions on the withdrawal of refugee status to cases of withdrawal of subsidiary protection; provide for the right of applicants whose protection needs under the Refugee Convention are rejected whilst subsidiary protection is granted to appeal against the decision in relation to refugee status while entitling them to benefit from subsidiary protection status pending the outcomes of the appeal procedure; underline that the Directive covers persons who are the subject to the Dublin procedures and that the notion of implicit withdrawal of the application does not apply to persons transferred to the responsible Member State pursuant to the Dublin Regulation. P RESENTATION OF P REFERRED P OLICY OPTION A SSESSMENT OF P REFERRED P OLICY O PTION EU added value EN 40
st instance decisions and the reducing of EN 41
Summary of relevance, feasibility and expected impacts Rating Motivation of the rating and relevant aspects of the preferred policy option 4 The preferred policy is capable to bring positive impacts in terms of ensuring smooth access to examinations, preventing refoulement and better operation of the Reception Conditions and Dublin instruments. In particular, it would: are to seeking - reduce the risk of diversion from the external sea borders and remove physical obstacles to accessing procedures for persons who are in the territorial waters but are not yet disembarked; - eliminate delays in getting access to asylum procedures and the reception conditions for de facto asylum seekers in pre-removal or immigration detention, at the border or in the territory, and facilitate quicker determination of the responsible MS under the Dublin Regulation; - enable MS to quicker distinguish between asylum seekers and other migrants in mixed arrivals, thus optimising labour and administrative resources needed to establish applicable procedures (return, asylum, humanitarian status, extradition etc.) and corresponding legal status of the person concerned; - reduce the risk of incorrect application of admissibility grounds, thus ensuring that admissible claims are processed without delay while persons who do not meet admissibility criteria are properly identified and, where applicable, alternative solutions are implemented. The latter applies to the safe country of asylum and safe third country cases. To improve 4 The preferred option would bring about positive impacts in terms of (i) reducing room for administrative error, (ii) improving applicants' compliance with the obligations set out in the APD and the QD, including the obligation to substantiate their claim, and (iii) supporting efforts of asylum authorities to take defendable decisions in line with the Qualification Directive. In particular, it would: - provide applicants with a sufficient opportunity to substantiate the claim and improve their awareness of applicable requirements leading inter alia to better compliance with procedural obligations; - allow the asylum authorities to take robust decisions, based on complete and properly established factual circumstances of the claim, improve the defendability of negative decisions and reduce risk of their annulment on procedural grounds by appeal bodies; - improve the transparency of procedures and promote partnership between asylum authorities and other actors of asylum process, such as refugee assisting NGOs and legal service providers; - enhance the ability of (vulnerable) applicants with special needs to comply with the obligation to substantiate their claims, and improve the reliability of decisions of the asylum authorities, in particular in cases involving survivors of torture or other serious violence. 4,5 The preferred option would imply significant progress towards a more consistent application of the key procedural notions to the extent that it would clarify and better circumscribe definitions of the manifestly unfounded applications, accelerated procedures, prioritised procedures and safe countries of origin, and eliminate derogations. The directive's notions and devices will become less susceptible to administrative error, while providing asylum authorities with necessary procedural tools to prevent / respond to abuse and process quickly clearly unfounded or less complex applications. In particular, it would: with a - give the asylum authorities necessary time to conduct a meaningful examination of the application and raise the overall fairness of accelerated procedures; - limit the use of accelerated procedures to manifestly unfounded or abusive cases while enabling MS to EN 42
prioritise other cases, such as cases of applicants with special needs or well founded cases; - link the notion of manifestly unfounded applications with the strength of the claim in light of the Qualification Directive; - ensure the consistent application of the safe country of origin notion, based on common material requirements, regular reviews of the situation in countries designated as safe and procedural guarantees equally applied in all MS opted for this device. 4 The preferred option improves both the efficiency and the quality of decision making by "frontloading" services and expertise and encouraging MS to examine comprehensively initial applications. The proposed legislative measures will bring maximum impacts if implemented in a systemic way and supported by the EASO `s practical cooperation activities. The improved efficiency should result from 3 sets of interlinked measures, namely (a) fixed time limits for taking decisions by asylum authorities should encourage MS to streamline first instance examinations, (b) enhanced preparedness and sufficient numbers of specialised asylum personnel should increase the institutional capacity of MS to handle effectively caseloads, (c) improved quality of decisions will lead to higher recognition rates and improve defendability of negative first instance decisions thus avoiding prolonged litigations, (d) comprehensive examination of initial applications in conjunction with enhanced fairness of procedures should eliminate root causes of subsequent applications, whilst abusive recourse to subsequent applications will be better addressed by giving MS a margin of flexibility to declare such applications inadmissible and remove applicants from the territory. The improved efficiency and quality will have important positive impacts on the asylum acquis as a whole. In particular, it would: and reduce MS' reception costs, since (i) applications will be generally examined within 6 months, and (ii) more cases will result in a final decision already in the first instance; lead to quicker access to benefits set out in the Qualification Directive for genuine refugees and persons in need of subsidiary protection; enable MS to better identify cases of unfounded and abusive applications, including those based on false identity or nationality; improve the credibility of asylum procedures leading to better public perception of asylum; support MS' efforts to remove from the territory failed asylum seekers, since robust decisions will be taken quicker; reduce possibilities for applicants with unfounded claims to benefit, for a long period of time, from reception conditions. To improve 4 The preferred option will re-enforce MS' asylum appeal systems by improving the accessibility and quality of an effective remedy against negative first instance decisions before a court or tribunal. This will result in particular from: - the requirement to set up reasonable time limits for lodging appeals and laying down the principle of suspensive effect of appeals; - the availability of legal assistance already in the first instance procedures; - the requirement for a court or tribunal to conduct an ex nunc and full review of both facts and points of law; - reinforcing the principle of equality of arms in asylum appeal proceedings. 3.5 Key elements of the preferred option that promote a consistent transposition include: · Removing derogations; and, · Establishing more narrow definitions. In particular, MS will have to stick to common procedural principles, and the improved clarity of procedural notions applicable at different stages of the asylum procedure will limit room for diverse procedural arrangements. Yet certain elements of the preferred option give MS a margin of flexibility and may be interpreted differently. In many of these cases, the preferred option foresees practical cooperation in order to achieve a common understanding. The Commission's support activities, such as Contact Committees' meetings, as well as monitoring and evaluation measures will be instrumental to approximate approaches between MS. Further input is EN 43
also expected from national courts and the ECJ, in particular if the Lisbon Treaty which extends provisions on request for preliminary rulings to all national courts and tribunals comes into force. In terms of implementation, inconsistencies could arise with regard to the following elements: Access to procedures: (i) Amount and the quality of training provided to various types of staff (police, boarder guards, immigration authorities). In this respect, the EASO and FRONTEX training support should steadily lead to the convergence of national training programmes. (ii) Provision of interpretation arrangements at the border and access to border crossing points and detention facilities for partner NGOs. The extension of and further financial support to border monitoring initiatives funded by UNHCR and ERF in a number of MS (Hungary, Slovenia, Netherlands, Italy) should allow for mapping and approximating approaches across the EU. Procedural guarantees: · Content of personal interviews. Practical cooperation, including the EAC, and guidelines to be prepared by the EASO would be indispensible to map and harmonise national practices. · Determination of insufficient financial resources as a pre-condition for receiving free legal assistance. The implementation of this requirement is likely to vary between MS, since economic conditions and income support levels differs across the EU. The guiding principles for interpretation of this requirement, in particular based on the principle of non-discrimination, may be expected from national courts and the ECJ. · The requirement to communicate to an asylum seeker during the interview in a language that he/she understands and can express him/herself. Both the assessment criteria and forms of interpretation (e.g. through face to face interpretation or remote interpretation) may vary. The interpreters' pool project and the EASO support measures, including guidelines on personal interviews, would bring more consistency in the implementation of this standard. · Interpretation of the notion of `persons with special needs', the identification of these applicants and tome given to survivors of torture to prepare for the personal interview. The identification mechanisms inserted in the Commission proposal for amending the Reception Conditions Directive should facilitate the consistent application of this notion. The EASO training and other relevant support for identifying and dealing with vulnerable asylum seekers will further influence national practices. Same applies to the time to be given to survivors of torture to prepare for the personal interview. · Gender and age-sensitive interviewing of asylum seekers. National and EU level guidelines and regular training will be indispensible to ensure the convergence of national practices. Common procedural notions: · Time taken to carry out accelerated procedures. Since the notion of "reasonable time limits" may be interpreted differently between MS, the Commission's support in implementing the standard will be crucial to achieve a common denominator. National courts and the ECJ inputs should also provide MS with guiding principles for determining the length of accelerated procedures. · National lists of safe countries of origin. While the preferred option should significantly reduce the ambiguousness of the current standards, it is likely that national lists of safe countries of origin will not be identical, in particular in the first years of implementation. These divergences should be largely addressed by enhanced practical cooperation in the area of country of origin information which is part of the envisaged EASO' mandate. National courts are also expected to be active in assessing whether countries appearing on the list meet the material requirements set out in the directive. Improved efficiency and quality of decision making: The interpretation of the requirement to dispose `sufficient numbers of personnel who have the necessary skills and expertise to be able to undertake their tasks' might vary between MS. The Commission's support would be crucial to develop together with MS guiding principles for determining "sufficient number of staff" taking into account e.g. caseloads, trends in asylum flows and backlogs. The EASO's support and other cooperation activities should also assist MS to develop common approaches to the qualifications of asylum personnel. Access to effective remedy EN 44
The notion of reasonable time limits for lodging appeals will leave room for different interpretations. Since procedural time limits are largely governed by the principle of procedural autonomy of MS, the ECJ interpretation of the notion, based, for example, on the principles of non-discrimination, effectiveness and judicial protection of rights guaranteed by Community Law will be instrumental to support MS in laying down the limits. 3.5 Some of the elements that form part of the preferred option could have important costs implications in some countries, depending on the existing arrangements in place. Elements that could require substantial financial inputs may result from, in particular: · Increased costs for support services and products, including the provision of interpretation arrangements and services, legal assistance, guardianship and medico-legal examinations and reporting. · Increased costs for staff involved in decision-making due to a reduction in the proportion of applications that can be treated through accelerated or border procedures, higher investments in the training of staff responsible for registering and processing applications and increased time inputs required for personal interviews and reporting on the latter. On the other hand, by streamlining and enhancing the quality of the first-instance examinations, as well as by reducing appeals and subsequent applications, it can lead, in a longer term, to a significant decrease in the financial and administrative costs of national asylum systems. By reducing differences of legal frameworks and decision-making practices and achieving further harmonisation of procedural guarantees and notions, 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. For a detailed analysis see below under 6.4.1 and 6.4.2. 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. Based on the consultation, MS are in principle in favour of considering the following elements: more clear rules on access to procedures, common rules on a single procedure, adjustment of the safe third country notion, improved arrangements for personal interviews, a revised list of grounds of accelerated procedures, more effective provisions for dealing with subsequent applications, common training requirements, and the scope of judicial review. Examples of elements where objections can be expected from some MS include: extending the right to legal assistance to first instance procedures, eliminating derogations from the requirements for the designation of safe countries, providing for suspensive effect of appeals and ex nunc review, and some of the additional guarantees for applicants with special needs. These provisions, however, are likely to be supported by the co-legislator the European Parliament and MS which have relevant arrangements in place. The co-decision procedure and majority vote in the Council create a favourable procedural environment for negotiating the envisaged provisions. 4.5 The preferred option contains essential elements capable to have positive social impacts as follows: · Increased access to protection and justice as national procedures would be better equipped to correctly identify genuine refugees and persons in need of subsidiary protection. The envisaged rules on legal assistance and access to files and suspensive effect of appeals would in particular facilitate access to justice. · Increased access to social protection as (i) persons seeking asylum would enjoy quicker access to social and healthcare in line with the Reception Conditions Directive, since access to procedures would be enhanced, and (ii) genuine refugees and persons in need of subsidiary protection would be able to access quicker social and economic entitlements set out in the Qualification Directive because of the increased fairness and efficiency of procedures. · Increased equality/non-discrimination: this will result, in particular, from (i) the envisaged guarantees and arrangements for handling applications of persons with special needs (e.g. for survivors of torture and other forms of violence, minors, mentally disabled persons etc.) which should increase their ability to comply with procedural obligations, and (ii) more balanced application of the safe country of origin notion (in terms of material requirements and examination of individual circumstances of the applicants), thus reduce the risk of discrimination based on nationality. · Better public health: as persons seeking asylum would enjoy quicker access to healthcare in line with the Reception Conditions Directive, survivors of torture would be timely identified and get access to professional expertise, improved communication with asylum seekers would enable MS to receive more complete information about personal circumstances of applicants, including those related to their health, and persons genuinely in need of protection would enjoy quicker access to health care benefits set out in the Qualification EN 45
Directive. · Good governance: would be better achieved within MS through increased transparency of access and examination procedures, promoting a specialised and well prepared determining authority, strengthening the quality of administrative decision making and streamlining examination procedures. Increased preparedness of asylum personnel and better scrutiny of cases will be instrumental to prevent abuse of procedures. Improved access to effective remedy would lead to better supervision of governmental decisions and practices in the area of asylum by independent judiciary. n 4.5 The preferred option would promote the following rights of the EU Charter: · Article 18: Right to asylum (enhanced access to examination procedures; improved procedural guarantees, notably for persons with special needs; increased access to effective remedy; more consistent use of accelerated procedure, accompanied by sufficient safeguards; more rigid application of the safe country of origin notion). · Article 19: Protection in the event of removal, expulsion or extradition (better protection against rejection at the border and enhanced access to examination procedures; improved procedural principles and guarantees, notably for persons with special needs; better access to effective remedy; limitations to using the accelerated procedure; improvements of the substantive criteria for defining third countries of origin as safe; more rigid application of the safe country of origin notion). Article 23: Equality between men and women (guarantees and arrangements for persons with special needs · and requirements to take into account gender aspects, in particular those related to personal interviews. Article 24: The rights of the child (guarantees and arrangements for persons with special needs) · Article 35: Health care (enhanced access to procedures; guarantees and arrangements for survivors of torture) · Article 47: Right to an effective remedy and to a fair trial (right to legal assistance, suspensive effect of · appeals, full and ex nunc review of first instance decisions, enhanced "equality of arms" in appeal proceedings. - As refugee flows are mainly determined by push factors, it is impossible to determine precisely to what extent the preferred option would have an impact on the overall asylum flows to the EU see below under 8.2.1. Potential magnitude of financial impacts MS potentially affected on the basis of responses to the consultation and analysis of transposition Estimated potential magnitude of impacts. 26 MS 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 2,857,555 EUR. See annex 24 for more details. 5 MS (EL, ES, IT, CY and 56 985 applications were submitted in EN 46
Overall impacts will vary significantly between MS: It is not possible to establish the number of affected asylum seekers, since statistical reports do not indicate the location in which applications are submitted. Given that the directive encourages asylum seekers to lodge an application as soon as possible, at least 241 725 applicants per year, if the current numbers persist, may be affected. If the arrangements lead to an increase in registered applications by 5 %, the number of applications in the Union would amount to 265 897. Provided 24 172 additional applicants need interpretation services (0,5 hour / 80 EUR) and legal advice (0,5 hour /) 11, 5 EUR), the total additional costs for 26 MS would amount to 2 211 793 EUR - some MS (IT, HU, SK, SL, AU, FR, NL and the UK) will be affected to a lesser extent, since they have similar arrangements in place. - a majority of MS will need to provide for additional arrangements. 110 . The actual costs might, however, be lesser, since not all applicants would be in need of such services. 10 MS (CY, EE, FR, GR, MT, PL, FR, SL, SP and the UK.) If 5 % of applicants are not offered a personal interview, the proposed provision will affect at least 5 582 applicants per year in the 10 MS. 2 hour interviews would require 266 149, 76 EUR per year 111 . 4 MS (EL, CY, MT and SE) The total number of applications in those MS in 2008 is 50 305. Provided the above acts add 1 hour to a personal interview, the costs would amount to 1 199 271 EUR. 11 MS (EL, CY, CZ, DE, FR, IE, IT, MT, LV, SK and SL) The total number of applications in those MS in 2008 is 125 255. Provided all applicants request legal assistance, the costs of 1 hour of legal assistance would range. They might amount to 1 440 432 EUR, based on the rates in HU, or to 6 889 025 EUR, based on the rates in LT. In practice, the costs should be lesser, since not all the applicants would request legal services. Amendments would affect to different extents all 26 MS. Lesser financial impacts are expected in MS which have already similar arrangements The costs of issuing a medico-legal report per capita might range from 200 EUR (AU, RO) per consultation / per capita to 965 EUR per consultation/per capita (IE). Some 20 % of asylum Hourly rates are based on figures reported by HU which has similar arrangements in place. Estimates are based on the average hourly labour costs of asylum officials (EUR 23.84). EN 47
112 . 8 MS (CY, IT, CZ, SK, GE, MT, SP and the UK) The total number of negative decisions in those MS in 2008 is 45 140. of accelerated Amendments would affect to different extents all 26 MS. Up to 20 % of cases are currently channelled in accelerated procedures. The total number of applicants 5 MS (BG, PL, SK, SL and the UK) will be mostly affected. concerned might amount to some 49 000 applicants per year, based on EUROSTAT data for 2008. 2 MS (FR and the UK) The total number of applications in those MS in 2008 is 72 390. In FR, 8,8 % of applications fall under the safe country of origin notion. 3 MS (EE, BE and FR) The total number of applications in those MS in 2008 is 53 260. 6 MS (CY, FI, FR, LU, and SE) The total number of applications in those MS in 2008 is 74 395. 113 . These include UK, NL, HU, AU and IE. For more information see Commission report on the evaluation of the Dublin System (SEC(2007) 742), p 14. EN 48
114 the examination costs per capita, requires additional expenditures for legal 115 . While it 116 . The financial envelope of the ERF for the period 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 This data, however, include services provided to other third country nationals in some countries; for more information see IA on the revision of the Reception of the Reception Conditions Directive. 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
E VALUATION AND MONITORING CRITERIA EN 50
117 which requires MS to provide data, 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
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