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COUNCIL OF THE EUROPEAN UNION
Interinstitutional File: 2009/0165 (COD)
DOCUMENT PARTIALLY
ACCESSIBLE TO THE PUBLIC
OUTCOME OF PROCEEDINGS
of:
Asylum Working Party
on:
10 March 2010
Brussels, 22 March 2010
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ASILE CODEC
22 207
No Cion proposal: No prev. doc.: Subject:
14959/09 ASILE 82 CODEC 1231 + ADD1, 2, 3, 4
7167/10 ASILE 18 CODEC 176 / 7235/10 ASILE 19 CODEC 178
Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (recast)
At its meeting 10 March 2010, the Asylum Working Party examined document 7167/10 containing compromise suggestions drafted by the Presidency concerning the Articles 2, 4, 6, 7, 9, 14, 15, 16, 17, 20, 24, 27 and 40 as well as document 7235/10 containing suggestions of the German delegation. The result of this examination is set out below with delegations' comments in the footnotes.
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2009/0165 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on minimum standards on procedures in Member States for granting and withdrawing
refugee status international protection
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular point (1) (d) and point (2) (a) of the first paragraph of Article 63 thereof,
Having regard to the proposal from the Commission1,
Having regard to the opinion of the European Economic and Social Committee2,
Having regard to the opinion of the Committee of the Regions3,
Acting in accordance with the procedure laid down in Article 251 of the Treaty4,
Whereas:
OJ C […], […], p. […]. OJ C […], […], p. […]. OJ C […], […], p. […]. OJ C […], […], p. […].
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1
2
3
4
5
new
(1) A number of substantive changes are to be made to Council Directive 2005/85/EC of 1
December 2005 on minimum standards on procedures for granting and withdrawing refugee status5. In the interests of clarity, that Directive should be recast.
Π2005/85/EC recital 1
(2) A common policy on asylum, including a Common European Asylum System, is a
constituent part of the European Union’s objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.
Π2005/85/EC recital 2
(3) The European Council, at its special meeting in Tampere on 15 and 16 October 1999,
agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967 (Geneva Convention), thus affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.
Π2005/85/EC recital 3
(4) The Tampere Conclusions provide that a Common European Asylum System should
include, in the short term, common standards for fair and efficient asylum procedures in the Member States and, in the longer term, Community rules leading to a common asylum procedure in the European Community.
OJ L 326, 13.12.2005, p. 13.
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Π2005/85/EC recital 4 (adapted)
(5) The Directive 2005/85/EC minimum standards laid down in this Directive on
procedures in Member States for granting or withdrawing refugee status are therefore was a first measure on asylum procedures.
new
(6) The first phase in the creation of a Common European Asylum System has now been achieved. The European Council of 4 November 2004 adopted the Hague Programme, which sets the objectives to be implemented in the area of freedom, security and justice in the period 2005-2010. In this respect the Hague Programme invited the European Commission to conclude the evaluation of the first phase legal instruments and to submit the second-phase instruments and measures to the Council and the European Parliament, with a view to their adoption before 2010. In accordance with the Hague programme, the objective to be pursued for the creation of the Common European Asylum System is the establishment of a common asylum procedure and a uniform status valid throughout the Union.
(7) In the European Pact on Immigration and Asylum, adopted on 16 October 2008, the European Council noted that considerable disparities remain between one Member State and another concerning the grant of protection and called for new initiatives, including a proposal for establishing a single asylum procedure comprising common guarantees, to complete the establishment of a Common European Asylum System, provided for in the Hague Programme.
(8) The resources of the European Refugee Fund and of the European Asylum Support Office should be mobilised to provide adequate support to the Member States' efforts relating to the implementation of the standards set in the second phase of the Common European Asylum System, in particular to those Member States which are faced with specific and disproportionate pressures on their asylum systems, due in particular to their geographical or demographic situation.
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(9) In order to ensure a comprehensive and efficient evaluation of the international protection
needs of applicants within the meaning of Directive […/.../EC] [on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (the Qualification Directive)] the Community framework on procedures for granting international protection should be based on the concept of a single asylum procedure.
Π2005/85/EC recital 5 new
(10) The main objective of this Directive is to develop further minimum standards for
procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the Community introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status.
Π2005/85/EC recital 6 new
(11) The approximation of rules on the procedures for granting and withdrawing
international protection refugee status should help to limit the secondary movements of applicants for asylum international protection between Member States, where such movement would be caused by differences in legal frameworks , and create equivalent conditions for the application of Directive […./../EC] [the Qualification Directive]in Member States .
Π2005/85/EC recital 7 new
(12) It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions for third country nationals or stateless persons who ask for international protection from a Member State, where such a request is
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understood to be on the grounds that the person concerned is in need of international protection a refugee within the meaning of Directive […./../EC] [the Qualification Directive] Article 1(A) of the Geneva Convention.
Π2005/85/EC recital 8 new
(13) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to promote the application of Articles 1, 18, 19, 21, 24 and 47 of the Charter and has to be implemented accordingly.
Π2005/85/EC recital 9 new
(14) With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination.
Π2005/85/EC recital 10 new
(15) It is essential that decisions on all applications for asylum international protection be taken on the basis of the facts and, in the first instance, by authorities whose personnel has the appropriate knowledge or receives the necessary training in the field of asylum and refugee matters.
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Π2005/85/EC recital 11 new
(16) It is in the interest of both Member States and applicants for international protection asylum to decide as soon as possible on applications for asylum . international protection, without prejudice to an adequate and complete examination . The of the processing of applications for asylum should be left to the
Member
s, so that they may, in accordance
accelerate the processing of any application, taking into account the standards Directive.
of
or
Π2005/85/EC recital 12 new
(17) The notion of public order may inter alia cover a conviction for committing a serious crime.
(18)
Π2005/85/EC recital 13 new
In the interests of a correct recognition of those persons in need of protection as refugees within the meaning of Article 1 of the Geneva Convention or as persons eligible for subsidiary protection , every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure. Moreover, the procedure in which an application for asylum international protection is examined should normally provide an applicant at least with the right to stay pending a decision by the determining authority, access to the services of an interpreter for submitting his/her case if interviewed by the authorities, the opportunity to communicate with a representative of the United Nations High Commissioner for Refugees (UNHCR) and with organizations providing advice or counselling to applicants for
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international protection or with any organisation working on its behalf, the right to appropriate notification of a decision, a motivation of that decision in fact and in law, the opportunity to consult a legal adviser or other counsellor, and the right to be informed of his/her legal position at decisive moments in the course of the procedure, in a language he/she can reasonably be supposed to understand and, in the case of a negative decision, the right to an effective remedy before a court or tribunal .
Π2005/85/EC recital 14
In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their vulnerability. In this context, the best interests of the child should be a primary consideration of Member States.
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(19) With a view to ensuring an effective access to the examination procedure, officials who first come into contact with persons seeking international protection, in particular those carrying out surveillance of land or maritime borders or conducting border checks, should receive instructions and necessary training on how to recognise and deal with requests for international protection. They should be able to provide third country nationals or stateless persons who are present in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and wish to request international protection, with all relevant information as to where and how applications for international protection may be lodged. Where those persons are present in the territorial waters of a Member State, they should be disembarked in land and have their applications examined in accordance with this Directive.
(20) In addition, special procedural guarantees for vulnerable applicants, such as minors, unaccompanied minors, persons who have been subjected to torture, rape or other serious acts of violence or disabled persons, should be laid down in order to create the conditions necessary for their effective access to procedures and presenting the elements needed to substantiate the application for international protection.
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(21) National measures dealing with identification and documentation of symptoms and signs of torture or other serious acts of physical or mental violence, including acts of sexual violence, in procedures covered by this directive should inter alia be based on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).
(22) With a view to ensuring substantive equality between female and male applicants, examination procedures should be gender sensitive. In particular, personal interviews should be organised in a way which makes its possible for both female and male applicants to speak about their past experiences in cases involving gender based persecution. The complexity of gender related claims should be properly taken into account in procedures based on the safe third country concept, the safe country of origin concept or the notion of subsequent applications.
(23) The "best interests of the child" should be a primary consideration of Member States when implementing this Directive, in line with the 1989 United Nations Convention on the Rights of the Child.
(24) Procedures for examining international protection needs should be organised in a way that makes it possible for the competent authorities to conduct a rigorous examination of applications for international protection.
(25) Where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure. In these cases, Member States should be able to dismiss an application as inadmissible in accordance with the res judicata principle have a choice of procedure involving exceptions to the guarantees normally enjoyed by the applicant.
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(26)
Π2005/85/EC recital 16 new
Many asylum applications for international protection are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant. Member States should be able to provide for admissibility and/or substantive examination procedures which make it possible to decide on applications made at the border or in
transit zones at those locations keep
procedures adapted to the
of these applicants at the
r. Common rules should be defined on
made in these
to the guarantees normally
by applicants. Border
procedures should
apply to those applicants who do not meet the
for
entry into the
of the Member
Π2005/85/EC recital 17 new
(27) A key consideration for the well-foundedness of an asylum application for international protection is the safety of the applicant in his/her country of origin. Where a third country can be regarded as a safe country of origin, Member States should be able to designate it as safe and presume its safety for a particular applicant, unless he/she presents serious counter-indications.
Π2005/85/EC recital 18
(28) Given the level of harmonisation achieved on the qualification of third country nationals and stateless persons as refugees, common criteria for designating third countries as safe countries of origin should be established.
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Π2005/85/EC recital 19
Where the
has
that those
are met
to a
country of
rigin, and has consequently
the
common list of safe
of
to
be adopted pursuant to
irective, Member States should be obliged to
applications of
persons with the
of that
y, or of stateless persons formerly habitually
that
y, on the
of the rebuttable
of the safety of that
In the light of
the political
of the designation of safe
of origin, i
of the
of an assessment of the human ri
in a country of
and it
for the policies of the European Union in the field of external relations, the
should take any
on the
or amendment of the list, after
tion of the
European Parliament.
Π2005/85/EC recital 20 (adapted)
It results from the status of Bulgaria and
as
for
to the
European Union and the progress made by these
towards membership that they should be
regarded as
safe
of
for the purposes of
the date of
sion to the European Union.
Π2005/85/EC recital 21 new
(29) The designation of a third country as a safe country of origin for the purposes of this
Directive cannot establish an absolute guarantee of safety for nationals of that country. By its very nature, the assessment underlying the designation can only take into account the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in the country concerned. For this reason, it is important that, where an applicant shows that there are serious valid reasons to consider the country not to be safe in his/her particular circumstances, the designation of the country as safe can no longer be considered relevant for him/her.
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Π2005/85/EC recital 22 (adapted) new
(30) Member States should examine all applications on the substance, i.e. assess whether the applicant in question qualifies as a refugee for international protection in accordance with Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted6, Directive […/../EC] [the Qualification Directive] except where the present Directive provides otherwise, in particular where it can be reasonably assumed that another country would do the examination or provide sufficient protection. In particular, Member States should not be obliged to assess the substance of an asylum application for international protection where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to this country.
Π2005/85/EC recital 23 new
(31) Member States should also not be obliged to assess the substance of an asylum application for international protection where the applicant, due to a sufficient connection to a third country as defined by national law, can reasonably be expected to seek protection in that third country , and there are grounds for considering that the applicant will be admitted or re-admitted to that country . Member States should only proceed on this basis where this particular applicant would be safe in the third country concerned. In order to avoid secondary movements of applicants, common principles for the consideration or designation by Member States of third countries as safe should be established.
OJ L 304, 13.9.2004,
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6
(32)
Π2005/85/EC recital 24 new
Furthermore, with respect to certain European third countries, which observe particularly high human rights and refugee protection standards, Member States should be allowed to not carry out, or not to carry out full examination of asylum applications regarding applicants who enter their territory from such European third countries. Given the potential consequences for the applicant of a restricted or omitted examination, this application of
the safe third country concept should be
to cases
respect to
the
has
that the high standards for the safety of the
country
as set out
irective, are
. The
should take
matter after
of the European Parliament.
Π2005/85/EC recital 25
It follows from the nature of the common standards concerning both safe third country concepts as set out in this Directive, that the practical effect of the concepts depends on whether the third
country
the applicant
to enter
Π2005/85/EC recital 26 new
(33) With respect to the withdrawal of refugee or subsidiary protection status, Member States should ensure that persons benefiting from international protection refugee status are duly informed of a possible reconsideration of their status and have the opportunity to submit their point of view before the authorities can take a motivated decision to withdraw their status. However, dispensing with these guarantees should be allowed where the reasons for the cessation of the refugee status is not related to a change
of the
on
the
was
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7
Π2005/85/EC recital 27 new
(34) It reflects a basic principle of Community law that the decisions taken on an application for asylum international protection and on the withdrawal of refugee or subsidiary protection status are subject to an effective remedy before a court or tribunal within the meaning of Article 234 of the Treaty. The effectiveness of the remedy, also with regard to the examination of the relevant facts, depends on the administrative and judicial system of each Member State seen as a whole.
Π2005/85/EC recital 28
(35) In accordance with Article 64 of the Treaty, this Directive does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
Π2005/85/EC recital 29 (adapted) new
(36) This Directive does not deal with procedures between Member States governed by Council Regulation (EC) No 343/2003 of 18 February 2003 Regulation (EC) No […/… ][establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application for international protection lodged in one of the Member States by a third-country national or a stateless person 7 (The Dublin Regulation)].
OJ L 50, 25.2.2003,
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new
(37) Applicants with regard to whom Regulation EC No […/…] [the Dublin Regulation]
applies should enjoy access to the basic principles and guarantees set out in this Directive and to the special guarantees pursuant to Regulation EC No […/…] [the Dublin Regulation].
Π2005/85/EC recital 30
(38) The implementation of this Directive should be evaluated at regular intervals not exceeding two years.
Π2005/85/EC recital 31 new
(39) Since the objective of this Directive, namely to establish minimum standards on
procedures in Member States for granting and withdrawing refugee status international protection cannot be sufficiently attained by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.
Π2005/85/EC recital 32 (adapted)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified, by letter of 24 January 2001, its wish to take part in the adoption and application of this Directive.
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Π2005/85/EC recital 33 (adapted)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland has notified, by letter of 14 February 2001, its wish to take part in the adoption and application of this Directive.
Π2005/85/EC recital 34
(40) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive and is not bound by it or subject to its application.
new
(41) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directive. The obligation to transpose the provisions which are unchanged arises under the earlier Directive.
(42) This Directive should be without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law of the Directive set out in Annex III, Part B.
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Π2005/85/EC new
HAVE ADOPTED THIS DIRECTIVE8:
CHAPTER I
GENERAL PROVISIONS
Article 1
Purpose
The purpose of this Directive is to establish minimum standards on procedures in Member States for granting and withdrawing international protection by virtue of Directive …/…/EC [the Qualification Directive] refugee status.
Article 2 Definitions9
For the purposes of this Directive:
(a) "Geneva Convention" means the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967;
(b) "application" or "application for asylum" means an application made by a third country national or stateless person which can be understood as a request for
General reservation: DELETED
General scrutiny reservation: DELETED
Parliamentary scrutiny reservation: CZ, HU, LT
Linguistic reservation: AT, CY, CZ, HU, LU, LT, PL, RO, SE
Reservation: DELETED
Scrutiny reservation: DELETED
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8
9
from a Member State under the Geneva
tion. Any application for
presumed to be an application for asylum, unless the person
concerned explicitly requests another kind of
tion. that can be applied for separately;
new
(b) "application" or "application for international protection" means a request made by a third
country national or a stateless person for 10protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of 11protection outside the scope of Directive […./../EC] [the Qualification Directive], that can be applied for separately;
Π2005/85/EC new
(c) "applicant" or "applicant for international protection asylum" means a third country
national or stateless person who has made an application for asylum international protection in respect of which a final decision has not yet been taken;
new Council
(d)12 "applicant in need of special procedural guarantees” means an applicant who has been
identified in accordance with Article 21 (2) of the Reception Conditions Directive as
10
11
12
DELETED
DELETED
proposed to insert "international". proposed to insert "international".
Reservation: DELETED
Scrutiny reservation: DELETED (also requesting a reservation on the CION proposal),
DELETED
DELETED requested clarification as regards consistency of terminology between this provision and provisions in other (proposals on ) legislative acts in the field of asylum. DELETED requested clarification of the term special procedural needs. In response, CION indicated that these guarantees should be specified in the rest of the Directive.
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having particular procedural needs due to his/her age, gender, disability, mental health problems or consequences of torture, rape or other serious forms of psychological, physical or sexual violence;
Π2005/85/EC (adapted) new
(d)(e) "final decision" means a decision on whether the third country national or stateless person be granted refugee or subsidiary protection status by virtue of Directive 2004/83/ECDirective […./../EC] [the Qualification Directive] and which is no longer subject to a remedy within the framework of Chapter V of this Directive irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome, subject to Annex III to this Directive;
(e)(f) "determining authority" means any quasi-judicial or administrative body in a Member State responsible for examining applications for asylum international protection and competent to take decisions at first instance in such cases, subject to Annex I;
(f)(g) "refugee" means a third country national or a stateless person who fulfils the requirements of Article 1 of the Geneva Convention as set out in 2 (d) of Directive 2004/83/ECDirective […./../EC] [the Qualification Directive];
DELETED requested to replace the reference to "mental health problems" with "relevant physical and mental diseases". CION indicated that what should be covered may be best described with " mental illnesses".
DELETED remarked that not all people with special need might be in need of special
procedural guarantees.
DELETED indicated that the terminology in Article 20 and 27 needs to be consistent with
the terminology defined in Article 2(d).
DELETED expressed concerns about the reference to Article 21(2) of the Reception
Conditions Directive. DELETED remarked that the reference is awkward considering that
the discussion on this provision has not yet been finalised.
DELETED suggested an indicative instead of a closed list.
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new
(h) "person eligible for subsidiary protection" means a third country national or a stateless
person who fulfils the requirements of Article 2 (f) of Directive […./../EC] [ the Qualification Directive];
13
(i) "international protection status" means the recognition by a Member State of a third
country national or a stateless person as a refugee or a person eligible for subsidiary protection;
Π2005/85/EC (adapted)
(g)(j) "refugee status" means the recognition by a Member State of a third country national or a stateless person as a refugee;
new
(k) "subsidiary protection status" means the recognition by a Member State of a third country
national or a stateless person as a person eligible for subsidiary protection;
(l) "minor" means a third country national or a stateless person below the age of 18 years;
Π2005/85/EC (adapted) new
(h)(m) "unaccompanied minor" means a person below the age of 18 who arrives in the territory of the Member States unaccompanied by an adult responsible for him/her whether by law or
13 DELETED suggested to include a definition of a "person eligible for international protection".
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by custom, and for as long as he/she is not effectively taken into the care of such a per it includes a minor who is left unaccompanied after he/she has entered the territory of Member States ; a minor as defined in Article 2 (l)14 of Directive […./.../EC] [the Qualification Directive];
(i)(n)15 "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
for the care and well-being of minors or any other
appropriate representation appointed to ensure his/her best interests; 16 person appointed by the competent authorities17 to act as a legal guardian in order to assist and represent an unaccompanied minor with a view to ensuring the child's best interests and exercising legal capacity for the minor where necessary;
(j)(o)18 "withdrawal of refugee international protection status" means the decision by a competent authority to revoke, end or refuse to renew the refugee or subsidiary protection status of a person in accordance with Directive 2004/83/ECDirective […./../EC] [the Qualification Directive] ;
(k)(p) "remain in the Member State" means to remain in the territory, including at the border or in transit zones, of the Member State in which the application for asylum international protection has been made or is being examined.
14
15
DELETED suggested to insert the text of Article 2(l) instead of solely the reference to that
provision.
DELETED requested clarification as to the implications for a person of being in a
procedure to obtain international protection status.
Scrutiny reservation: DELETED requesting clarification as to what functions he performs;
how many representatives an unaccompanied minor could have; how a representative is to
be appointed; what kind of organisations could make representatives available.
DELETED considered the definition too limited in view of the different functions a representative performs.
considered the definition not consistent with Article 21(1)(a).
noted that the Procedures Directive and the Reception Conditions Directive
DELETED
DELETED
16
have different definitions of "representative".
17 18
Reservation DELETED on deleted text considering that it must be possible for a minor to have himself represented by a NGO. In response, CION indicated that the representative needs to be recognised by the competent authorities and that, for that reason, NGOs are less suited to act as representatives. DELETED proposed "bodies" instead of "authorities".
Reservation: DELETED
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Article 3
Scope
-
1.This Directive shall apply to all applications for
asyluminternational protection made in the territory, including at the border , in the territorial waters19 or in the transit zones of the Member States, and to the withdrawal ofrefugee statusinternational protection status . -
2.This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations of Member States.
3. Where Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for other kinds of international protection given under the circumstances defined by Article 15 of Directive 2004/83/EC, they shall apply this Directive throughout their procedure.
43.20 Moreover, Member States may decide to apply this Directive in procedures for deciding on applications for any kind of international protection falling outside the scope of Directive […./.../EC] [the Qualification Directive] .
19
20
DELETED requested clarification of the term "territorial waters" in particular in the light of the deadlines for examining an application for international protection.
Scrutiny reservation: DELETED.
DELETED suggested to delete "international" given the fact that the term "international protection" has a particular meaning in the Qualifications Directive.
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Π2005/85/EC new Council
Article 4
Responsible authorities
-
1.21Member States shall designate for all procedures a determining authority which will be
responsible for an appropriate examination of the applications in accordance with this Directive,in particular Articles 8(2) and 9. Member States shall ensure that this authority is provided with appropriate means, including sufficient competent
personnel22, to carry out its tasks in accordance with this Directive.
new Council
23
Member States shall ensure that the personnel of the determining authority have the
appropriate knowledge and skills regarding issues falling within the scope of this Directive and other EU instruments dealing with international protection. To that end, Member
21
22
23
Scrutiny reservation: DELETED (expressing concerns about the implications of the requirements regarding training for Member States processing limited numbers of applications for international protection), DELETED (considering it difficult to identify a single determining authority), DELETED.
DELETED proposed to delete the phrase "including sufficient competent personnel"
fearing that the requirement related to personnel could result in additional grounds for
litigation. DELETED, however, underlined the importance of such a phrase.
Reservation: DELETED
Scrutiny reservation: DELETED
DELETED considered that paragraph (2) contains too much detail. DELETED proposed
to delete (a) to (e). DELETED suggested to refer to only refer to "sufficient training".
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24
25
26
27
States shall provide for initial and, where relevant, follow up training, including in particular24:
(a) substantive and procedural rules on international protection and Human Rights set out in relevant international and EU instruments, including the principles of non-refoulement and non-discrimination;
(b) gender […] and age awareness;
(c) use of country of origin information;
(d) interview techniques , including cross-culture communication;25
(e) use of expert medical reports in procedures for granting international protection;
(f) evidence assessment, including the principle of the benefit of the doubt;27
(g) case law issues relevant to the examination of applications for international protection.
26
Π2005/85/EC
In accordance with Article 4(4) of Regulation (EC) No 343/2003, applications for asylum made in a Member State to the authorities of another Member State carrying out immigration controls there shall be dealt with by the Member State in whose territory the application is made.
DELETED suggested to include a reference to the European Asylum Support Office considering its tasks concerning training.
requested clarification of the term "cross-culture communication".
considered inclusion of "cross-cultural communication" in the training
DELETED
DELETED
excessive.
DELETED preferred to keep the reference "signs of torture" as included in the CION
proposal.
DELETED considered the inclusion of "evidence assessment, including the principle of the
benefit of the doubt" excessive considering that asylum personnel should not be obliged to
possess knowledge of criminal law. In response, CION indicated that this principle is a
general notion contained in the Geneva Convention.
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23.28 However, Member States may provide that another authority is responsible for the purposes of: processing cases pursuant to Regulation (EC) No …/…. [the Dublin Regulation].
(a)
cases
to transfer the applicant to another State
according to the rules establishing
and
for determining
State
for
an application for asylum, until the transfer takes place or the
requested State has refused to take charge of or take back the applicant;
(b) taking a
on the application in the light of
visions,
the determining authority is consulted
to thi
as to whether the
applicant qualifies as a refugee by
of
(c) conducting a preliminary
pursuant to
has access to the applicant’s file regarding the
application;
(d)
cases in the framework of the procedures provided for
35(1);
(e) refusing
to enter in the framework of the procedure
for
35(2) to (5), subject to the
and as set out
ein;
(f) establishing that an applicant is seeking to enter or has entered into the Member State from a safe third country pursuant to Article 36, subject to the conditions and as set out in that Article.
34. Where an authority authorities are is designated in accordance with
paragraph 23, Member States shall ensure that the personnel of that authority such authorities have the appropriate knowledge or receive the necessary training to fulfil their obligations when implementing this Directive.
28
Reservation: DELETED
DELETED opposed the removal of the possibility of another responsible authorities than
the determining authority. In that context, DELETED proposed to maintain (b) and (c).
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5.29 Applications for international protection made in a Member State to the authorities of
another Member State carrying out border or immigration controls there shall be dealt with by the Member State in whose territory the application is made.
Article 5
More favourable provisions
Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing refugee status international protection , insofar as those standards are compatible with this Directive.
DELETED: reservation
Scrutiny reservation: DELETED pointing to the relation between this provision and the DUBLIN Regulation.
DELETED considered the DUBLIN Regulation sufficient. In response, CION indicated that it should be clear which Member State is responsible for dealing with the application, inter alia in the light of the envisaged joint border patrols.
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30 31
32 33
CHAPTER II30
BASIC PRINCIPLES AND GUARANTEES
Article 6
Access to the procedure
1. Member States may require that applications for asylum be made in person and/or at a designated place.
-
1.Member States shall designate competent authorities responsible for the receipt and
registration of applications for international protection. Without prejudice to paragraphs 5, 6, 7 and 8, Member States may require that applications for international protection be made in person and/or at a designated place.
2.31 Member States shall ensure that a person who wishes32 to make an application for
international protection has an effective opportunity to lodge the application with the competent authority as soon as possible33.
Scrutiny reservation on Chapter II: DELETED
DELETED requested clarification on the obligations for Member States resulting from
paragraph (2).
DELETED proposed "declares" instead of "wishes".
DELETED expressed concerns with regard to the phrase "as soon as possible" in the light
of the DELETED asylum procedure which provides for a 6-day rest and preparatory period preceding the lodging of an application.
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23. Member States shall ensure that each adult having legal capacity has the right to make an application for international protection asylum on his/her own behalf.
34. Member States may provide that an application may be made by an applicant on behalf of his/her dependants. In such cases Member States shall ensure that dependant adults consent to the lodging of the application on their behalf, failing which they shall have an opportunity to make an application on their own behalf.
Consent shall be requested at the time the application is lodged or, at the latest, when the personal interview with the dependant adult is conducted. Before consent is requested, each adult among these persons shall be informed in private of relevant procedural consequences and of his or her right to make a separate application for international protection.
new
Council
5.34 Member States shall ensure that a minor has the right to make an application for
international protection either on his/her own behalf, or through his/her parents an adult responsible for him/her whether by law or by national practice, or a representative .
34
Reservation: DELETED fearing abuse. DELETED considered that only the legal representative of a minor should be able to make an application for international protection.
Scrutiny reservation: DELETED
DELETED, with provisional support of DELETED, proposed "..either on his/her own
behalf, if he has the legal capacity to act in procedures according to national law, or through
his/her representatives or their representatives ("DELETED")". In this context, DELETED
proposed to add "legal" before representatives. Furthermore, DELETED pointed to the fact that the DELETED proposal read in conjunction with the definition of "representative" in Article 2 would leave out parents from Article 6(5). In response to the DELETED proposal, CION indicated that national particularities concerning representation in procedures are already covered in Article 6(7)(a).
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6.35 Member States shall ensure that the appropriate bodies referred to in Article 10 of
Directive 2008/115/EC of the European Parliament and of the Council 36 have the right to lodge an application for international protection on behalf of an unaccompanied minor if, on the basis of an individual assessment of his/her personal situation, these bodies are of the opinion that the minor may have protection needs pursuant to Directive […./../EC] [the Qualification Directive].
Π2005/85/EC new
47.37 Member States may determine in national legislation:
(a) the cases in which a minor can make an application on his/her own behalf;
(b) the cases in which the application of an unaccompanied minor has to be lodged by a representative as provided for in Article 1721 (1)(a);
(c) the cases in which the lodging of an application for asylum international protection is deemed to constitute also the lodging of an application for asylum international protection for any unmarried minor.
Member States shall ensure that
likely to be addressed by someone who
to make an application for asylum are able to may make such an application and/or may req
se that person how and where he these authorities to forward the
application to the competent authority.
35
36
37
Reservation: DELETED considering the reference to Directive 2008/115/EC not appropriate as this Directive applies to "bodies" whereas applications should be lodged by natural persons.
Scrutiny reservation: DELETED (expressing concerns that registration by NGOs could
increase administrative burden), DELETED.
In response, CION indicated that paragraph (6) has been proposed with a view to closing
the existing protection gap for minors resulting from the wording in paragraph (2) of the
Directive currently in force which only refers to adults.
OJ L 348, 24.12.2008, p. 98
DELETED suggested to merge (a) and (c).
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39 40
41
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8.38 Member States shall ensure that border guards, police and immigration authorities, and personnel of detention facilities have instructions and receive necessary training for dealing with39 applications for international protection. If these authorities are designated as competent authorities pursuant to paragraph 1, the instructions shall include an obligation to register the application. In other cases, the instructions shall require to forward the application to the authority competent for this registration together with all relevant information.
Member States shall ensure that all other authorities likely to be addressed by someone who wishes to make an application for international protection are able to advise that person how and where he/she may make such an application and/or may require these authorities to forward the application to the competent authority.
9.40 An application for international protection shall be registered by the competent authorities within 72 hours41 from the moment a person has expressed his/her wish to apply for international protection pursuant to subparagraph 1 of paragraph 8.
Reservation: DELETED
Scrutiny reservation: DELETED.
DELETED considered it sufficient that the applicant is guided to the competent asylum
authorities.
On the one hand, DELETED considered paragraph (8) too detailed proposing to delete the
second and the third sentence. On the other hand, DELETED wanted to maintain the text.
DELETED proposed "registering" instead of "dealing with".
Reservation: DELETED considering the expression of a wish to apply for international
protection an unclear starting point. In response, CION indicated that the reference to a wish
to make an application is already included in paragraph (5) of the Directive currently in
force.
Scrutiny reservation: DELETED.
Reservation: DELETED considering 72 hours insufficient time, fi when an interpreter has to be brought in.
DELETED expressed doubts as to the duration of the period of 72 hours requesting clarification whether these hours have to be considered working hours or normal hours.
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Article 742
Information and counseling at border crossing points and detention facilities
-
1.43Member States shall ensure that information on procedures to be followed in order to make an application for international protection is made available at:
(a) border crossing points, including transit zones, at external borders; and
(b) detention facilities.
-
2.44Member States shall provide for interpretation arrangements in order to ensure 45communication between persons who wish to make an application for international protection and border guards or personnel of detention facilities.
3.46 Member States shall ensure that relevant organizations providing advice and
counseling to applicants for international protection have access to persons who express
42
43
44
45 46
Reservation: DELETED considering the Article to contain too many obligations for Member States. DELETED was also doubtful about the manner in which the relevant information could be made available in practice. In response, CION explained that leaflets with information about the application procedure could be envisaged. Scrutiny reservation: DELETED
DELETED expressed concerns in particular as regards security in case of transit.
Scrutiny reservation: DELETED
DELETED requested clarification whether border crossing points are official points or all places where the border can be crossed. In response, CION indicated that the term border crossing points referred to Article 2(8) of the Schengen Convention. Scrutiny reservation: DELETED. In this context, DELETED pointed out that interpretation services are not always available. In response, CION indicated that the wording "interpretation arrangements" had been included with a view to providing flexibility as to the implementation of this provision by the Member States, so that, for instance, translation could be provided by NGOs or border guards. DELETED suggested to insert "effective". Scrutiny reservation: DELETED.
DELETED, supported by DELETED, expressed concerns on how to distinguish persons
who wish to make an application for international protection, and, therefore, should receive information, from other persons. DELETED also opposed the obligation for Member States to ensure access to border crossing points and detention facilities for organisations providing advice and counselling.
DELETED expressed doubts about the increased possibilities for access to border crossing
points and detention facilities pointing out that, at the moment, DELETED has an agreement with UNHCR on such access.
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48 49
50
or have expressed an intention to apply for international protection at the border crossing points, including transit zones, and detention facilities subject to an agreement with the competent authorities of the Member State47.
Member States may provide for rules covering the presence of such organizations in the areas referred to in this Article.
Π2005/85/EC new
Article 78
Right to remain in the Member State pending the examination of the application
-
1.Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit.
-
2.48Member States can make an exception only where
, in accordance with Articles 32 and 34,a person makes a subsequent application as described in Article 35 (8) 49will not be further examinedor where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant50 or otherwise, or to a third country , with the exception of the country of origin of the applicant concerned , or to international criminal courts or tribunals.
DELETED stated that the agreement needs to have entered into force before the entry into force of the Directive.
Reservation: DELETED
DELETED requested clarification about the reference to Article 35(8) considering that Article 35(8) contains a reference to subsequent applications and to new applications. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1)
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1.
2.
new
-
3.51A Member State may extradite an applicant to a third country pursuant to paragraph 2
only where the competent authorities are satisfied that an extradition decision will not result in direct or indirect refoulement in violation of international obligations of the Member State.
Π2005/85/EC (adapted) new
Article 8952
Requirements for the examination of applications
53Without
to
23(4)(i), Member States shall ensure that applications for
asylum international protection are neither rejected nor excluded from examination on the sole ground that they have not been made as soon as possible.
54
When assessing the elements of applications for international protection, the
determining authority shall first determine whether applicants qualify as refugees and, if not, determine if the applicants are eligible for subsidiary protection .
51
52 53
Reservation: DELETED
Scrutiny reservation: DELETED
DELETED expressed concerns about paragraph (3) as it introduces a limitation of the
possibilities for Member States to extradite a person in comparison with the reference to extradition in the Directive currently in force. DELETED requested clarification whether the legal base of the Directive is sufficient for this newly introduced limitation.
Scrutiny reservation: DELETED
Reservation: DELETED
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23. Member States shall ensure that decisions by the determining authority on applications for international protection asylum are taken after an appropriate examination. To that end, Member States shall ensure that:
(a) applications are examined and decisions are taken individually, objectively and
impartially;
(b)55 precise and up-to-date information is obtained from various sources, such as the United
Nations High Commissioner for Refugees (UNHCR) and the European Asylum Support Office , as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions and, where the determining authority takes it into consideration for the purpose of taking a decision, to the applicant and56 his/her legal adviser ;
(c) the personnel examining applications and taking decisions have the knowledge with
respect to relevant standards applicable in the field of asylum and refugee law;.
54
55
56
Reservation: DELETED
Scrutiny reservation: DELETED
Reservation: DELETED
Scrutiny reservation:
DELETED
DELETED questioned the appropriateness of making the information available to the
applicant.
DELETED
DELETED
requested clarification when and how information should be made available.
expressed doubts on last phrase "and, where…adviser". ELETED, being concerned of the administrative costs, indicated they could accept a provision allowing applicants to have access to their file. DELETED proposed to delete the reference to UNHCR and EASO. Presidency proposed "and/or"
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||
(d)57 the personnel examining applications and taking decisions are instructed and have the |
||
possibility to seek advice, whenever necessary, from experts on particular issues, such as |
||
medical, cultural, child or gender issues. |
||
57
58
34. The authorities referred to in Chapter V shall, through the determining authority or the applicant or otherwise, have access to the general information referred to in paragraph 23(b), necessary for the fulfilment of their task.
45.58 Member States may shall provide for rules concerning the translation of documents relevant for the examination of applications.
Article 910
Requirements for a decision by the determining authority
-
1.Member States shall ensure that decisions on applications for
asyluminternational protection are given in writing. -
2.Member States shall also ensure that, where an application is rejected with regard to refugee status and/or subsidiary protection status , the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing.
Reservation: DELETED
Scrutiny reservation: DELETED.
proposed to delete "medical" and "gender issues". expressed doubts about paragraph 3(d).
DELETED
DELETED
Reservation: DELETED
Scrutiny reservation: DELETED
DELETED proposed to maintain "may" as in the Directive currently in force.
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59
60
Member States need not state the reasons for not granting refugee status in a
where the applicant is granted a status which offers the same rights and benefits under
national and Community law as the refugee status by virtue of Directive 2004/83/EC. In
these cases, Member States shall ensure that the reasons for not granting refugee status are
stated in the applicant’s file and that the applicant has, upon request, access to his/her file.59
Moreover, Member States need not provide information on how to challenge a negative decision in writing in conjunction with a decision where the applicant has been provided with this information at an earlier stage either in writing or by electronic means accessible to the applicant.
-
3.For the purposes of Article 6
(3)(4), and whenever the application is based on the same
grounds, Member States may take one single decision, covering all dependants.
new
-
4.60Paragraph 3 shall not apply to cases where disclosure of particular circumstances of a
person to members of his/her family can jeopardize the interests of that person, including cases involving gender and/or age based persecution. In such cases, a separate decision shall be issued to the person concerned.
DELETED opposed deletion of the subparagraph considering that its national system
provides for the grant of a single status and that, sanctioned by the highest court in
DELETED, no appeal is possible on the issue whether the basis for that status is the
Geneva Convention or provisions on subsidiary protection.
Reservation DELETED in the light of its general opposition to merging procedures of
dependants.
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Π2005/85/EC (adapted) new
Article 1011
Guarantees for applicants for asylum international protection
-
1.With respect to the procedures provided for in Chapter III, Member States shall ensure that
all applicants for asylum applicants for international protection enjoy the following guarantees:
(a) they shall be informed in a language which they may reasonably be supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. They shall be informed of the time-frame, as well as the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive 2004/83/ECDirective […./../EC] [the Qualification Directive ]. This information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 1112;
(b) they shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary. Member States shall consider it necessary to give these services at least when the determining authority calls upon the applicant to be interviewed as referred to in Articles 12 and 13 13, 14,
15, 16 and 30 and appropriate communication cannot be ensured without such services. In this case and in other cases where the competent authorities call upon the applicant, these services shall be paid for out of public funds;
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2.
(c) 61 they shall not be denied the opportunity to communicate with the UNHCR or
with any other organisation working on behalf of the UNHCR in the territory of the Member State pursuant to an agreement with providing legal advice or counselling to asylum seekers62 in accordance with national legislation of that Member State;
(d) they shall be given notice in reasonable time of the decision by the determining authority on their application for asylum international protection . If a legal adviser or other counsellor is legally representing the applicant, Member States may choose to give notice of the decision to him/her instead of to the applicant for asylum international protection ;
(e)63 they shall be informed of the result of the decision by the determining authority in a language that they may reasonably be supposed to understand when they are not assisted or represented by a legal adviser or other counsellor and when free legal assistance is not available. The information provided shall include information on how to challenge a negative decision in accordance with the provisions of Article 910(2).
With respect to the procedures provided for in Chapter V, Member States shall ensure that
all applicants for asylum enjoy equivalent guarantees to the ones referred to in paragraph 1(b), (c) and (d) of this Article.
Article 1112
1.
Obligations of the applicants for asylum international protection
Applicants for international protection shall cooperate with the competent authorities with a view to establishing their identity and other elements referred to in Article 4(2) of
61
62 63
Reservation: DELETED considering that the proposal broadens the scope of the provision too much.
Scrutiny reservation: DELETED
DELETED proposed "applicants for international protection" instead of "asylum seekers". Reservation: DELETED Scrutiny reservation: DELETED
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Directive […./../EC] [the Qualification Directive]. 64Member States may impose upon applicants for asylum other obligations to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application.
-
2.65In particular, Member States may provide that:
(a) applicants for asylum are required to report to the competent authorities or to appear before them in person, either without delay or at a specified time;
(b) applicants for asylum have to hand over documents in their possession relevant to the examination of the application, such as their passports;
(c) applicants for asylum are required to inform the competent authorities of their current place of residence or address and of any changes thereof as soon as possible. Member States may provide that the applicant shall have to accept any communication at the most recent place of residence or address which he/she indicated accordingly;
(d)66 the competent authorities may search the applicant and the items he/she carries with him/her, provided the search is carried out by a person of the same sex
(e) the competent authorities may take a photograph of the applicant; and
(f) the competent authorities may record the applicant’s oral statements, provided he/she has previously been informed thereof.
64
65
66
DELETED proposed to insert "They shall tolerate the taking of their fingerprints according
to Regulation […./../EC] [the EURODAC Regulation].
DELETED, supported by DELETED, suggested to add to the list that Member States may
require a DNA test with a view to establishing family relations. In response, CION
indicated it is up to the Member States to establish whether family links exist, noting as well
that DNA tests seem to fall out of scope of the Procedures Directive.
Scrutiny reservation: DELETED
DELETED proposed to insert "wherever possible" as is done in Article 14(3)(c).
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Article 121367
Personal interview
-
1.Before a decision is taken by the determining authority, the applicant
for asylumshall be
given the opportunity of a personal interview on his/her application for asylum
international protection with a person competent under national law to conduct such an interview. Interviews on the substance of an application for international protection
shall always be conducted by the personnel of the determining authority.
68
Member States may also
the
adult referred to i
6(3).
of a personal
to each dependant
67
68
new
Where a person has made an application for international protection on behalf of his/her dependants, each adult to whom the applicant relates must be given the opportunity to express his/her opinion in private and to be interviewed on his/her application.
Member States may determine in national legislation the cases in which a minor shall be given the opportunity of a personal interview.
Reservation: DELETED
DELETED indicated that, in special cases, other authorities than the determining
authorities can be involved in the interview.
Scrutiny reservation: DELETED
DELETED considered it not appropriate to determine in EU law which authority must make the interview.
wanted to maintain its system of police officers doing a preliminary interview.
indicated that in DELETED the police interviews applicants.
DELETED
DELETED
In response, CION specified that the determining authority must do the interviews on the substance of an application and that this does not exclude interviews on other elements than the substance of the application by authorities other than the determining authority.
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2.69The personal interview on the substance of the application may be omitted where:
69
70
(a) the determining authority is able to take a positive decision with regard to refugee status on the basis of evidence available; or
(b) the competent authority has already had a meeting with the applicant for the
purpose of assisting him/her with completing his/her application and submitting the essential information regarding the application, in terms of Article 4(2) of Directive 2004/83/EC; or
(c)the determining authority, on the basis of a complete examination of
provided by the applicant, considers the application to be unfounded in cases where the circumstances mentioned in Article 23(4)(a), (c), (g), (h) and (j) apply.
3. The personal interview may also be omitted where
(b) it is not reasonably practicable, in particular where the competent authority is of the opinion that the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his/her control. When in doubt, the competent authority shall consult a medical expert to establish whether the condition is temporary or permanent. Member States may require a medical or psychological certificate.70
Where the Member State does not provide the applicant with the opportunity for a personal interview pursuant to this paragraphpoint (b), or where applicable, to the dependant, reasonable efforts shall be made to allow the applicant or the dependant to submit further information.
Scrutiny reservation: DELETED
DELETED opposed deletion of (b) and (c) of the Directive currently in force.
Scrutiny reservation: DELETED requesting clarification about the role of the medical
expert. In response, CION indicated that the medical expert gives a medical opinion.
DELETED suggested "long term" instead of "permanent".
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43.71 The absence of a personal interview in accordance with this Article shall not prevent the determining authority from taking a decision on an application for asylum international protection .
54. The absence of a personal interview pursuant to paragraph 2(b) and (c) and paragraph 3 shall not adversely affect the decision of the determining authority.
65. Irrespective of Article 2024(1), Member States, when deciding on the application for asylum international protection , may take into account the fact that the applicant failed to appear for the personal interview, unless he/she had good reasons for the failure to appear.
Article 1314
Requirements for a personal interview
-
1.A personal interview shall normally take place without the presence of family members unless the determining authority considers it necessary for an appropriate examination to have other family members present.
-
2.A personal interview shall take place under conditions which ensure appropriate confidentiality.
-
3.72Member States shall take appropriate steps to ensure that personal interviews are conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner. To that end, Member States shall:
(a) ensure that the person who conducts the interview is sufficiently competent to take account of the personal or general circumstances surrounding the
71 72
DELETED requested clarification about the legal implications of this provision.
On (b) and (c) reservation: DELETED and scrutiny reservation: DELETED.
On (b) scrutiny reservation: DELETED
On (c) reservation: DELETED
ELETED preferred paragraph (b) as in the Commission proposal considering, as
ELETED, the Presidency suggestion unclear. DELETED noted that requirements applicable in paragraph (b) should also be applicable in
paragraph (c).
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application, including the applicant’s cultural origin, gender,
or
vulnerability;, insofar as
to do so;
73
(b) wherever possible, provide for the interview with the applicant to be conducted by a person of the same sex if the applicant concerned so requests as long as this request is not based on discriminatory reasons ;
74
(bc) select an competent 74 interpreter who is able to ensure appropriate communication between the applicant and the person who conducts the interview. The communication need not necessarily take place in the language preferred by the applicant for asylum if there is another language which he/she may reasonably be supposed to75 understands and in which he/she is able to communicate. clearly76. Wherever possible, Member States shall provide an interpreter of the same sex if the applicant so requests;
73 74 75 76
DELETED
DELETED
DELETED
DELETED
wondered whether age and sexual inclination should be added. proposed to delete "competent" considering it redundant. proposed to keep "may reasonably be supposed to understand". suggested to delete "clearly".
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(d) ensure that the person who conducts an interview on the substance of an application for international protection does not wear a military or law enforcement uniform77;
-
e)ensure that interviews with minors are conducted in a child- appropriate manner.
Π2005/85/EC
-
4.Member States may provide for rules concerning the presence of third parties at a personal
interview.
also applicable to the meeting referred to in Article 12(2)(b).
77 Scrutiny reservation: DELETED
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Article 15
Content of a personal interview
78
When conducting a personal interview on the substance of an application for international protection, the determining authority shall ensure that the applicant is given the 79opportunity to present elements needed to substantiate the application in accordance with Article 4 of Directive […./../EC] [the Qualification Directive] as completely as possible. This shall include the opportunity to give an explanation regarding elements which may be missing and/or any inconsistencies or contradictions in his/her statements.
78
79
Reservation: DELETED
Scrutiny reservation: DELETED
In response to concerns expressed by DELETED as to the situation in which information becomes available after the personal interview, CION indicated that the first sentence of Article 15 makes clear that this situation does not have as a consequence that a second interview needs to be conducted.
DELETED considered the content of the Article inappropriate for a legislative text fearing,
moreover, additional possibilities for prolonging legal proceedings.
DELETED proposed to insert "appropriate".
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Π2005/85/EC
Article 14
Status of the report of a personal
the procedure
States shall ensure that a
report is made of every personal interview,
at least the
regarding the application, as presented by the
applicant, in terms of
4(2) of
States shall ensure that applicants have
access to the report of the
personal interview. Where access is only granted after the decision of the determining authority, Member States shall ensure that access is possible as soon as necessary for allowing an appeal to be prepared and lodged in due time.
3.Member States may request the applicant’s approval of the contents of the report of the personal interview.
Where an applicant refuses to approve the contents of the refusal shall be entered into the applicant’s file.
t, the reasons for
The refusal of an applicant to approve the contents of the report shall not prevent the determining authority from taking a decision on his/her application.
.Thi
also applicable to the
referred to i
12(2)(b).
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new Council
1.
Article 1680
Transcript , recording and report of personal interviews
Member States shall ensure that a transcript is made of every personal interview unless the interview is audio and/or video recorded and this recording is admissible as evidence in procedures in accordance with Chapter V .
81Member States shall request the applicant’s approval on the contents of the transcript at the end of the personal interview or within a specified time limit82. To that end, Member States shall ensure
80
81
82
Reservation on obligation to make a full transcript: DELETED. Furthermore, DELETED
requested clarification what is meant with a "transcript". In this context, DELETED
expressed concerns that not being complete could lead to disputes. In response, CION indicated that a transcript can be written, audio, or audio-visual and should reflect what the applicant has said but does not need to be a verbatim report. Moreover, CION indicated that an oral presentation to the applicant of the transcript is in line with the Article. Finally, in response to DELETED which requested clarification whether all information would need to be registered, including personal information, CION indicated that the transcript need not to include information that is not relevant for the application. Scrutiny reservation on Article: DELETED.
DELETED, opposed by DELETED, proposed to include the exception in case of an audio
/ audio-visual recording in the second subparagraph of paragraph (1) and not in the first subparagraph. This would mean that if an audio / audio-visual recording is made, there would be no need to request the applicant's approval on the contents of the transcript at the end of the interview or within a specified time-limit.
DELETED proposed to replace "Member States shall request….To that end" with "As soon as possible and timely before the decision on the application for international protection" considering that it is not possible to finalise a transcript before the end of the interview. Scrutiny reservation DELETED on phrase "or within a specified time-limit".
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that the applicant is informed, with the assistance of an interpreter if necessary83, of the content of the transcript. 84
-
2.Where an applicant refuses to approve the contents of the transcript, the reasons for this refusal shall be entered into the applicant’s file.
The refusal of an applicant to approve the contents of the transcript shall not prevent the determining authority from taking a decision on his/her application.
-
3.Without prejudice to paragraphs 1 and 2, Member States may make a written report85 of a personal interview, containing at least the essential information regarding the application, as presented by the applicant. In such cases, Member States shall ensure that the transcript
and / or recording of the personal interview is annexed to the report.86
-
4.87Member States shall ensure that applicants have timely access88 to the transcript and, where applicable, the recording and report of the personal interview before the determining authority takes a decision.
83
84
85
86
87
DELETED considered it not a necessity to have assistance of an interpreter. The reason is
that Article 18 already provides for legal assistance which in DELETED includes translation of the transcript. Because DELETED grant a subsidy for legal assistance, it is not needed to also refer to assistance of an interpreter for informing the applicant about the content of the transcript.
DELETED expressed concerns about the costs resulting from the translation of written
transcripts.
DELETED requested specification on the consequences of a situation in case an applicant
does not approve the transcript or requests more time to study it. Furthermore, DELETED requested clarification whether a transcript is needed for all interviews.
DELETED underlined that it is more important that the applicant agrees that the interview
is correctly reflected in the transcript than that he approves the content of the transcripts. In
the same vein, DELETED considered it pivotal that the applicant can make remarks about
the transcript while finding his approval not necessary.
DELETED requested clarification about the possibility to make a written report containing the essential information of the application.
requested to specify the criteria of a report.
requested clarification about the difference between the transcript and the
DELETED
DELETED
report.
DELETED opposed annexing the transcript to the report fearing disclosure of private
information. Reservation DELETED
DELETED considered paragraph (4) to have no added value.
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Article 1789
Medical reports
-
1.90Member States may allow an applicant to have a medical examination carried
out in order to submit a medical certificate to the determining authority in support of his/her statements regarding past persecution or serious harm. Member States may, however, require the applicant to submit the results of the medical examination to the determining authority within a time limit after the moment he/she has been informed about his/her rights pursuant to this Article.
88 89
90
91
-
2.91Without prejudice to paragraph 1, in cases where the determining authority considers
that there is reason to believe that the applicant suffers from post-traumatic stress disorder and this might interfere with his/her ability to be interviewed and/or to give accurate and coherent statements, it shall ensure that a medical examination is carried out with the applicant's consent .
DELETED opposed that the applicant has access to the transcript and the report before the
decision on the application.
DELETED requested assurance that access to the transcript and the report would not entail an obligation to sent these documents to the applicant but provided only for the obligation to allow the applicant to look into these documents. In response, CION specified that access needed to be provided on request of the applicant.
DELETED expressed doubts about added value of specification "timely".
Reservation: DELETED
Scrutiny reservation: DELETED
DELETED submitted a proposal amending Article 17 (document 7235/10). DELETED
preferred the Presidency proposal above the DELETED proposal. DELETED preferred the proposal. considered that no causal link exists between the medical situation of an
DELETED
DELETED
applicant and statements in relation to past persecution or serious harm.
DELETED suggested to specify that the applicant would bear the costs of the medical
examination.
Scrutiny reservation: DELETED
DELETED missed added value in relation to provisions in, in particular, the Reception Conditions Directive.
DELETED considered paragraph (2) redundant in view of Article 13. Furthermore, DELETED requested clarification about the relation between paragraph (2) and Article 13(2). DELETED also pointed out that an applicant suffering from PTSS might not be able to give its consent to a medical examination.
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-
3.92Member States shall provide for relevant arrangements in order to ensure that impartial93 and qualified medical expertise is made available for the purpose of a medical examination referred to in paragraph 2.
[…]
-
4.94Member States shall ensure that persons interviewing applicants in accordance with this Directive receive training with regard to awareness of medical problems that can have consequences for the ability of the applicants to be interviewed and to comply with the obligation to substantiate the application for international protection .
-
5.The results of medical examinations referred to in paragraphs 1 and 2 shall be assessed by the determining authority along with other elements of the application. […]
92
93 94
Reservation: DELETED
Scrutiny reservation: DELETED
DELETED
DELETED
suggested to add the substance of paragraph (3) to Article 9(3). proposed to delete "impartial" Reservation: DELETED
considered paragraph (4) already covered by Article 4.
expressed concerns as to data protection.
underlined that the persons interviewing need not be medical experts.
DELETED
DELETED
DELETED
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1.
2.
95
96 97 98
Π2005/85/EC new
Article 151895
Right to legal assistance and representation
Applicants for international protection shall be given the opportunity Member States shall allow applicants for asylum the opportunity, at their own cost,96 to consult in an effective manner a legal adviser or other counsellor, admitted or permitted as such under national law, on matters relating to their asylum applications for international protection, at all stages of the procedure97, including following a negative decision .
98In the event of a
by a determining authority, Member States shall
ensure that free legal assistance and/or representation be granted on request, subject to the provisions of paragraph 3. To that end, Member States shall:
new
(a) provide for free legal assistance in procedures in accordance with Chapter III. This shall include, at least, the provision of information on the procedure to the
Reservation: DELETED considering the extension of legal assistance and representation to all stages of the procedure not acceptable.
DELETED explained that Italy does not have legal assistance for its own citizens in
administrative procedures.
Scrutiny reservation: DELETED
DELETED explained that DELETED does not have legal assistance in administrative
procedures.
DELETED explained that in DELETED the asylum authorities and not the legal advisors
DELETED
provide information on the procedure.
proposed to maintain the phrase "at their own costs".
proposed to delete ", at all stages of the procedure".
proposed keeping the text of paragraph (2) as it is in the Directive currently in
DELETED
DELETED
force.
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99
100 101
102 103
applicant in the light of his/her particular circumstances and explanations of reasons in fact and in law in the case of a negative decision;99
(b) provide for free legal assistance or representation in procedures in accordance with Chapter V. This shall include, at least, the preparation of the required procedural documents and participation in the hearing100 before a court or tribunal of first instance on behalf of the applicant.101
-
3.Member States may provide in their national legislation that free legal assistance and/or
representation is granted:
(a) only for procedures before a court or tribunal in accordance with Chapter V and not for any onward appeals or reviews provided for under national law, including a rehearing of an appeal following an onward appeal or review; and/or 102
(b)(a) only to those who lack sufficient resources; and/or
(c)(b) only to legal advisers or other counsellors specifically designated by national law to assist and/or represent applicants for asylum for international protection. and/or
(d) only if the appeal or review is likely to succeed.103
Member States shall ensure that legal assistance and/or representation granted under point (d) is not arbitrarily restricted.
DELETED suggested to limit point (2a) to providing information about the procedure and to refrain from including explanations of reasons in fact and in law in the case of a negative decision.
opposed participation in the hearing as this could lead to a conflict of interests.
requested clarification about the relation between point (2b) and paragraph (4)
DELETED
DELETED
considering both provisions contradictory. proposed to maintain point (a). proposed to maintain (d).
DELETED
DELETED
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new
With respect to the procedures provided for in Chapter V, Member States may choose to only make free legal assistance and/or representation available to applicants insofar as such assistance is necessary to ensure their effective access to justice. Member States shall ensure that legal assistance and/or representation granted pursuant to this paragraph is not arbitrarily restricted. 104
Π2005/85/EC new
-
4.Rules concerning the modalities for filing and processing requests for legal assistance
and/or representation may be provided by Member States.
new
-
5.105Member States may allow non-governmental organisations to provide free legal
assistance and/or representation to applicants for international protection in procedures provided for in Chapter III and/or Chapter V.
56. Member States may also:
(a) impose monetary and/or time-limits on the provision of free legal assistance and/or representation, provided that such limits do not arbitrarily restrict access to legal assistance and/or representation;
104
105
DELETED
DELETED
proposed to delete the last sentence considering it redundant. opposed the proposal that NGOs provide free legal assistance and/or
representation, whereas DELETED supported that proposal.
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(b) provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance.
67. Member States may demand to be reimbursed wholly or partially for any expenses granted if and when the applicant’s financial situation has improved considerably or if the decision to grant such benefits was taken on the basis of false information supplied by the applicant.
Article 1619
Scope of legal assistance and representation
-
1.106Member States shall ensure that a legal adviser or other counsellor admitted or permitted
as such under national law, and who assists or represents an applicant for international protection asylum under the terms of national law, shall enjoy access to such the information in the applicant’s file upon which a decision is or will be made. as is liable to be examined by the authorities referred to in Chapter V, insofar as the information is relevant to the examination of the application.
Member States may make an exception where disclosure of information or sources would jeopardise national security, the security of the organisations or person(s) providing the information or the security of the person(s) to whom the information relates or where the investigative interests relating to the examination of applications of for asylum
international protection by the competent authorities of the Member States or the international relations of the Member States would be compromised. In these cases,
Member States shall:
106 107
new
(a) 107 grant access to the information or sources in question at least to a legal advisor or counsellor who has undergone a security check, insofar as the information is relevant
Reservation: Reservation:
DELETED
DELETED
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to the examination of the application or taking a decision to withdraw international protection;
Π2005/85/EC (adapted) new
(b)108 make access to the information or sources in question shall be available to the authorities referred to in Chapter V, except where such access is precluded in cases of national security.
-
2.Member States shall ensure that the legal adviser or other counsellor who assists or
represents an applicant for international protection asylum has access to closed areas, such as detention facilities and transit zones, for the purpose of consulting that applicant.
Member States may only limit the possibility of visiting applicants in closed areas where such limitation is, by virtue of national legislation, objectively necessary for the security, public order or administrative management of the area, or in order to ensure an efficient examination of the application, provided that access by the legal adviser or other counsellor is not thereby severely limited or rendered impossible.
new
-
3.109Member States shall allow the applicant to bring to the personal interview a legal adviser
or other counsellor admitted or permitted as such under national law.
108
109
Scrutiny reservation: |
DELETED |
Reservation: DELETED |
|
Scrutiny reservation: |
DELETED |
Scrutiny reservation: |
DELETED |
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Π2005/85/EC new
34. Member States may provide rules covering the presence of legal advisers or other
counsellors at all interviews in the procedure, without prejudice to this Article or to Article 1721(1)(b).
. Member States may
that the applicant is allowed to bring
to the
personal
a legal
or other counsellor admitted or
as such under
national law.
Member States may require the presence of the applicant at the personal interview, even if he/she is represented under the terms of national law by such a legal adviser or counsellor, and may require the applicant to respond in person to the questions asked.
The absence of a legal adviser or other counsellor shall not prevent the competent authority from conducting the personal interview with the applicant, without prejudice to Article 21 1(b) .
new Council
Article 20110
Applicants with special needs
-
1.111Member States shall take into account the specific situation of applicant with special
needs when implementing this Directive, providing relevant support where needed to
110
111
Reservation DELETED in connection with Article 2(d). CION expressed concerns about the amendments proposed by the Presidency. DELETED submitted a proposal amending Article 20 (document 7235/10). Scrutiny reservation:
DELETED
Scrutiny reservation:
DELETED
(in connection with Article 2(d)), DELETED
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ensure that they are given the opportunity to present the elements of an application as completely as possible and with all evidence.
2. […] .
-
3.112 […] .
112
113 114
115
116 117
118 119
Article 1721113
Guarantees for unaccompanied minors
-
1.With respect to all procedures provided for in this Directive and without prejudice to the
provisions of Articles 12 and 14 13, 14 and 15, Member States shall:
(a)114 as soon as possible take measures to ensure that a representative115 represents and/or116 assists117 the unaccompanied minor with respect to the lodging and the examination of the application. The representative shall be impartial118 and have the necessary expertise in the field of childcare119.
Reservation on deletion phrase "Article 27(6) and (7) shall not apply to the applicants
referred to in paragraph 2.": DELETED
Scrutiny reservation: DELETED
DELETED proposed that the representative must have the competence to defend the
interests of the unaccompanied minor.
Reservation: DELETED considering that in some cases a judge appoints a lawyer as a representative.
requested clarification about the representative.
proposed to keep "/or".
DELETED
DELETED
DELETED proposed "…that a representative can assist, in particular represent, the
unaccompanied..".
DELETED proposed to delete "impartial".
Scrutiny reservation DELETED expressing concerns about the double obligation to have
legal expertise and expertise in the field of child care.
DELETED requested clarification as regards "the necessary expertise in the field of child
care".
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2.
This representative can also be the representative referred to in Article 19 of 2003/9/EC of 27 January 2003 laying down minimum standards for ers120; Directive […/…/EC] [the Reception
the
of asylum
Conditions Directive];
(b) ensure that the representative is given the opportunity to inform the
unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself/herself for the personal interview. Member States shall allow ensure that 121the
a representative and/or a legal advisor or other counsellor admitted as such under national law are to be present at that interview and have an opportunity to ask questions or make comments, within the framework set by the person who conducts the interview.
Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present.
Member States may refrain from appointing a representative where the unaccompanied minor:
(a) will in all likelihood reach the age of maturity before a decision at first instance is taken; or
(b) can
imself, free of charge, of a legal
or other
as such under
law to fulfil the tasks
above to the
representative; or
(c)(b) is married or has been married.
. Member States may, in accordance with the laws and regulations in force on 1
5, also refrain from
a
where the
120 121
OJ L 31, 6.2.2003, p. 18
DELETED proposed to keep "allow" instead of "ensure that".
Scrutiny reservation: DELETED
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16 years old or
r, unless he/she is unable to pursue
application wit
a representative.122
43.
Member States shall ensure that:
(a) If an unaccompanied minor has a personal interview on his/her application for asylum international protection as referred to in Articles 12, 13 and 14,13, 14 and 15 that interview is conducted by a person who has the necessary knowledge of the special needs of minors;
(b) an official with the necessary knowledge of the special needs of minors prepares the decision by the determining authority on the application of an unaccompanied minor.
new
4.123 Subject to the conditions set out in Article 18, unaccompanied minors shall be granted free legal assistance with respect to all procedures provided for in this Directive.
Π2005/85/EC new
5.124 Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for asylum
122 123
124
DELETED proposed to maintain paragraph (3) of the Directive currently in force. Reservation: DELETED
DELETED requested clarification about the relation between paragraph (4) and Article 18.
In response, CION indicated that the aim of the provision is to ensure free legal assistance at all stages of the procedure. Scrutiny reservation: DELETED
Reservation DELETED
DELETED opposed the limitation introduced by the proposed modification of paragraph
(5). Furthermore, DELETED requested clarification with regard to the statements referred to in the paragraph.
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international protection , where, following his/her general statements or other relevant evidence, Member States still have doubts concerning his/her age .
new |
||
Any medical examination shall be performed in full respect of the individual’s dignity, |
||
selecting the less invasive exams. 125 |
||
Π2005/85/EC new
In cases where medical examinations are used, Member States shall ensure that:
(a) unaccompanied minors are informed prior to the examination of their application for asylum international protection , and in a language which they may reasonably be supposed to 126understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for asylum
international protection , as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination;
(b) unaccompanied minors and/or their representatives consent to carry out an examination to determine the age of the minors concerned; and
(c) the decision to reject an application for asylum international protection from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal.
125
126
DELETED preferred the wording laid down in Article 6(5) of the DUBLIN Regulation as resulting from the discussions in the Asylum Working Party and suggested to include this provision in Article 17 of the Procedures Directive.
DELETED proposed to maintain the phrase "may reasonably be supposed to".
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127
128
129
The fact that an unaccompanied minor has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for asylum international protection .
new
6.127 Article 27 (6) and (7), Article 29 (2) (c), Article 32128, and Article 37129 shall not apply to unaccompanied minors.
Π2005/85/EC new Council
67. The best interests of the child shall be a primary consideration for Member States when implementing this Article.
Reservation: DELETED
DELETED proposed to delete paragraph (6).
Reservation on reference to Article 27(7): DELETED
Reservation on reference to Article 32: DELETED considering that Article 32 does not
distinguish between adults and minors.
Scrutiny reservation: DELETED
Scrutiny reservation on reference to Article 29(2)(c) and Article 37: DELETED
DELETED opposed excluding unaccompanied minors from rejection of an application
because it is considered manifestly unfounded (Article 27(7)).
DELETED requested clarification as to what would happen if family members would
reside in a safe third country.
expressed doubts about providing derogations for unaccompanied minors. opposed that Article 32 (safe third country concept) does not apply to
DELETED
DELETED
unaccompanied minors.
DELETED opposed that Article 37 (Examination at border and transit zones) does not
apply to unaccompanied minors.
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130
Article 1822130
Detention
Member States shall not hold a person in detention for the sole reason that he/she is an applicant for international protection asylum. Grounds and conditions of detention as well as guarantees available to detained applicants for international protection shall be in accordance with Directive […/…/EC] [the Reception Conditions Directive].
-
2.Where an applicant for
asyluminternational protection is held in detention, Member
States shall ensure that there is a possibility of speedy judicial review in accordance with Directive […/…/EC] [the Reception Conditions Directive] .
Article 1923
Procedure in case of withdrawal of the application
-
1.Insofar as Member States provide for the possibility of explicit withdrawal of the application under national law, when an applicant
for asylumexplicitly withdraws his/her application forasyluminternational protection , Member States shall ensure that the determining authority takes a decision to either discontinue the examination or reject the application. -
2.Member States may also decide that the determining authority can decide to discontinue the examination without taking a decision. In this case, Member States shall ensure that the determining authority enters a notice in the applicant’s file.
Scrutiny reservation: DELETED
Reservation: DELETED on the horizontal issue of detention.
DELETED wanted this provision to be reflected in the Reception Conditions Directive. In response, CION remarked that the place of the provisions on detention is less relevant considering that these provisions, if adopted, will need to be transposed in national legislation irrespective of the Directive they are laid down in.
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Article 2024131
Procedure in the case of implicit withdrawal or abandonment 132of the application
-
1.133When there is reasonable cause to consider that an applicant for
asyluminternational
protection has implicitly withdrawn or abandoned his/her application for asylum
international protection , Member States shall ensure that the determining authority takes a decision to either either discontinue the examination or, provided that the determining authority considers the application to be unfounded on the basis of a complete examination of the substance of the application in accordance with […./../EC ] [The Qualification Directive], rejects the application or reject the application on the basis that the applicant has not established an entitlement to refugee status in accordance with Directive 2004/83/EC.
Member States may assume that the applicant has implicitly withdrawn or abandoned his/her application for asylum international protection in particular when it is ascertained that:
(a) he/she has failed to respond to requests to provide information essential to his/her application in terms of Article 4 of Directive 2004/83/EC […./../EC] [the Qualification Directive] or has not appeared for a personal interview as provided for in Articles 1213, 1314, 15 and 1416, unless the applicant demonstrates within a reasonable time that his/her failure was due to circumstances beyond his control;
(b) he/she has absconded or left without authorisation the place where he/she lived or was held, without contacting the competent authority within a reasonable time, or he/she has not within a reasonable time complied with reporting duties or other obligations to communicate.
131 132
133
Scrutiny reservation: DELETED
DELETED requested clarification of the difference between implicit and explicit
withdrawal and abandonment of an application. Reservation: DELETED Scrutiny reservation: DELETED
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For the purposes of implementing these provisions, Member States may lay down time-limits or guidelines.
-
2.134Member States shall ensure that the applicant who reports again to the competent
authority after a decision to discontinue as referred to in paragraph 1 of this Article is taken, is entitled to request that his/her case be reopened , unless the request is examined i accordance with Articles 32 and 34.
Member States may
for a
after which the applicant’s case can no longer
be re-opened.
135
Member States shall ensure that such a person is not removed contrary to the principle of non-refoulement.
Member States may allow the determining authority to take up the examination at the stage where it was discontinued.
new
-
3.136This Article shall be without prejudice to Regulation (EC) No …/…. [the Dublin
Regulation].
134
135
136
Reservation: DELETED
Scrutiny reservation: DELETED
DELETED
DELETED
opposed the proposed deletions.
suggested to define criteria for reopening a case. Reservation: DELETED. In relation to the deletion of the possibility to provide for a time limit, DELETED suggested to define a maximum period.
Reservation: DELETED Scrutiny reservation: DELETED
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137
Π2005/85/EC new
Article 2125
The role of UNHCR
-
1.Member States shall allow the UNHCR:
(a) to have access to applicants for international protection asylum, including those in detention and in airport or port transit zones137;
(b) to have access to information on individual applications for asylum
international protection , on the course of the procedure and on the decisions taken, provided that the applicant for asylum agrees thereto;
(c) to present its views, in the exercise of its supervisory responsibilities under Article 35 of the Geneva Convention, to any competent authorities regarding individual applications for asylum international protection at any stage of the procedure.
-
2.Paragraph 1 shall also apply to an organization which is working in the territory of the Member State concerned on behalf of the UNHCR pursuant to an agreement with that Member State.
Article 2226
Collection of information on individual cases
For the purposes of examining individual cases, Member States shall not:
(a) directly disclose information regarding individual applications for
international protection asylum, or the fact that an application has been
DELETED proposed to delete the specification "airport or port" as in Article 19(2).
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made, to the alleged actor(s) of persecution or serious harm of the applicant for asylum;
(b) obtain any information from the alleged actor(s) of persecution or serious harm in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant and his/her dependants, or the liberty and security of his/her family members still living in the country of origin.
CHAPTER III
PROCEDURES AT FIRST INSTANCE
SECTION I
Article 2327138
Examination procedure
-
1.Member States shall process applications for
asyluminternational protection in an examination procedure in accordance with the basic principles and guarantees of Chapter II. -
2.Member States shall ensure that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.
138
Reservation: DELETED
Reservation on paragraphs (1) to (4) and (6) to (9): DELETED
Scrutiny reservation: DELETED.
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139
140
141
142
new Council
-
3.139Member States shall ensure that a procedure is concluded within 6 months after the application is lodged.
Member States may extend that time limit for a period not exceeding a further 6 months in individual cases involving complex issues of fact and law including cases of applicants with special needs, and in the case of arrivals involving a large number of third country nationals or stateless persons lodging applications for international protection. 140
-
4.141Member States shall ensure that, where a decision cannot be taken within the time period referred to in subparagraph 1 of paragraph 3, the applicant concerned shall:
(a) be informed of the delay; and
(b) receive, upon his/her request, information on the reasons for the delay and the timeframe within which the decision on his/her application is to be expected.
The consequences of failure to adopt a decision within the time limits provided for in paragraph 3 shall be determined in accordance with national law.142
Reservation: DELETED (suggesting deletion), DELETED (suggesting to keep text of
Directive currently in force), DELETED
Scrutiny reservation: DELETED
DELETED, although supporting a conclusion of the procedure as soon as possible, opposed
to time-limits.
DELETED could, as a general rule, support the 6 month period but expressed problems
with the time limit in case of extension of that period.
DELETED,though preferring not to have any time-limit in the Directive, proposed to
specify as well cases of extraordinary situations.
Reservation: DELETED
suggested to include that delays can also be caused by the applicant.
requested clarification whether this subparagraph would also allow that a Member State in its national law determines that failure to adopt a decision within the time limits has no consequences.
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DELETED
DELETED
Π2005/85/EC (adapted) new
Member States shall ensure that, where a
cannot be taken withi
s, the
applicant concerned shall either:
(a) be informed of the delay; or
(b)
eive, upon hi
on the
the
on hi
application is to be expected. Such information shall not
to take a
an obligation for the Member State towards the applicant concerned ithin that time-frame.143
35144. Member States may prioritise or accelerate any an examination of an application for international protection in accordance with the basic principles and guarantees of
Chapter II,
where the application is likely to be well-founded or where the
applicant has special
(a) where the application is likely to be well founded;
(b) where the applicant has special needs;
(c) in other cases with the exception of applications referred to in paragraph 6.
145
Π2005/85/EC (adapted) new Council
46.146 Member States may also provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be prioritised or accelerated if:
143 144 145
DELETED
DELETED
DELETED
proposed to keep point (b) of the Directive currently in force.
questioned the added value of paragraph (5).
requested clarification as regards the exception in point (c). In response, CION indicated that the only purpose of this points is to clarify the distinction between prioritised and accelerated procedures and that it is not meant to have any implications of substance.
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(a) the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee or a person eligible for subsidiary protection by virtue of Directive 2004/83/EC Directive […./../EC] [the Qualification Directive] ; or
(b) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) the applicant clearly does not qualify147 as a refugee or a person eligible for subsidiary protection in a Member State under Directive […./../EC] [ The Qualification Directive];
148
or
(c) the application for asylum
to be
146
147 148
Reservation: DELETED Scrutiny reservation: DELETED
DELETED requested clarification about the reasons for not allowing Member States to apply accelerated procedures as long as every procedure respects the basic principles and guarantees of Chapter II of the Directive. Therefore, DELETED proposed to maintain the text as in Article 23(3) of the Directive currently in force. In response, CION indicated that respect of the principles and guarantees of Chapter II is not guaranteed throughout the Union and regarding all categories of applications. Furthermore, considering that Member States use certain criteria for determining which categories of applications can be subject to an accelerated procedure, paragraph (6) enumerates certain categories as well. DELETED does not have accelerated procedures but does reject applications for being manifestly unfounded. In that light, DELETED, supported by DELETED, wanted to keep the points (e), (g), (i), (k), (l) and (m). In addition to these points, DELETED also wanted to keep (h).
wanted to keep (d), (g), (k) and (m).
wanted to keep (e), (g), (k), (m) and (n).
wanted to keep (g) and (m) and requested clarification why (e) was considered
DELETED
DELETED
DELETED
inadmissible.
DELETED
DELETED
DELETED
DELETED
wanted to keep (n).
wanted to keep paragraphs (g) and (m).
requested clarification why (n) and (l) are deleted.
suggested changes to paragraphs (a), (c) and (d) and wanted to keep paragraph (n).
DELETED, taking a scrutiny reservation on (m), expressed doubts as to the deletion of some of the cases included in the Directive currently in force.
suggested to delete "qualify".
considered point (b) not a valid condition for accelerating the examination of an
DELETED
DELETED
application.
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(i) (c) because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31 this Directive ;, or
(ii) because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1); or
(d) (d) the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or
(e) the applicant has filed another application for asylum stating other personal data;
or
(f) (e) the applicant has not produced information establishing with a reas degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or
(g) the applicant has made inconsistent, contradictory, improbable or
representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or
(h) the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or
(i) the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or
(f) the application was made by an unmarried minor to whom Article 6 (7) (c) applies, after the application of the parents or parent responsible for the minor
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has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin; or
Π2005/85/EC (adapted) new Council
(j) (g) the applicant is making an application merely in order to delay or
frustrate the enforcement of an earlier or imminent decision which would result in his/her removal.; or
(k) the applicant has referred to in Arti
good reason to comply with obligations
4(1) and (2) of
2004/83/EC or in
Articles11(2)(a) and (b) and 20(1) of
irective; or
(l) the applicant entered the te his/her stay unlawfully
of the Member State unlawfully or prolonged ithout good reason, has either not presented
to the
and/or filed an application for asylum as soon
as
sible, given the circumstances of
y; or
(m) the applicant is a danger to the
or public order of the Member
e, or the applicant has been forcibly expelled for rity and public order under national law; or
reasons of public
(n) the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or
(o) the application was made by an
to whom
6(4)(c)
applies, after the application of the parents or parent
for the
has been rejected and no relevant new elements were
ith respect to
or to the
country of origin.
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149
150
151 152
153
new
7.149 In cases of unfounded applications, as referred to in Article 28, in which any of the circumstances listed in paragraph 6 apply, Member States may reject an application as manifestly unfounded following an adequate and complete examination.
8.150 Member States shall lay down reasonable time limits for the adoption of a decision in the procedure at first instance pursuant to paragraph 6.
9.151 The fact that an application for international protection was submitted after an irregular entry into the territory or at the border, including in transit zones152, as well as the lack of documents or use of forged documents, shall not per se entail an automatic recourse to an accelerated examination procedure.
Article 28153
Unfounded applications
Without prejudice to Article 23, Member States shall only consider an application for international protection as unfounded if the determining authority has established that the applicant does not qualify for international protection pursuant to Directive […./../EC] [the Qualification Directive].
Reservation: DELETED
Scrutiny reservation: DELETED
DELETED questioned whether the phrase "following an adequate and complete
examination" is appropriate considering that an application is rejected when there is a
ground for it to be manifestly unfounded.
DELETED considered it not needed to establish separate deadlines in accelerated
procedures.
DELETED suggested to include time limits.
Reservation: DELETED
proposed to delete the phrase ", as well as … documents".
took the position that the use forged documents constitutes a crime and is
DELETED
DELETED
therefore sufficient reason to deal with this application in an accelerated procedure.
Scrutiny reservation: DELETED
DELETED requested clarification of the consequences of a decision that an application is manifestly unfounded.
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154
155
Π2005/85/EC new
Article 24154
Specific procedures
States may provide for the following specific procedures derogating from the and guarantees of Chapter II:
(a) a preliminary examination for the purposes of processing cases considered within the framework set out in Section IV;
(b) procedures for the purposes of processing cases considered within the framework set out in Section V.
2. Member States may also provide a derogation in respect of Section VI.
SECTION II Article 2529155
Inadmissible applications
-
1.In addition to cases in which an application is not examined in accordance with
Regulation
(EC) No 343/2003Regulation [No …/….] [the Dublin Regulation] , Member States are not required to examine whether the applicant qualifies as a refugee for international protection in accordance with Directive 2004/83/EC Directive …./../EC [the Qualification Directive] where an application is considered inadmissible pursuant to this Article.
DELETED requested to revisit this Article after having read all Articles in the proposal related to specific procedures.
DELETED opposed deletion of (d) and (e) in the light of its asylum system granting a single status to those having international protection.
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156
Π2005/85/EC new
-
2.Member States may consider an application for
asyluminternational protection as
inadmissible only pursuant to this Article if:
(a) another Member State has granted refugee status;
(b) a country which is not a Member State is considered as a first country of asylum
for the applicant, pursuant to Article 2631;
(c) a country which is not a Member State is considered as a safe third country for
the applicant, pursuant to Article 2732;
(d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC;
(e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d);
(f)(d) the applicant has lodged an identical application after a final decision;
(g)(e) a dependant of the applicant lodges an application, after he/she has in
accordance with Article 6(3)(4) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.156
DELETED expressed concerns about possibilities for abuse.
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new
Article 30157
Special rules on an admissibility interview
-
1.Member States shall allow applicants to present their views with regard to the application of the grounds referred to in Article 29 in their particular circumstances before a decision to consider an application inadmissible is taken. To that end, Member States shall conduct a personal interview on the admissibility of the application. Member States may make an exception only in accordance with Article 36 in cases of subsequent applications.
-
2.Paragraph 1 shall be without prejudice to Article 5 of Regulation (EC) No …/…. [the Dublin Regulation].158
Π2005/85/EC new
Article 2631
The concept of first country of asylum
A country can be considered to be a first country of asylum for a particular applicant for asylum international protection if:
157
158
Reservation: DELETED as to the relation between Article 30 and Article 13(2).
Scrutiny reservation: DELETED.
DELETED proposed that the provision takes into account when a situation where the
applicant cannot attend the admissibility interview.
DELETED questioned in particular the reference to the DUBLIN Regulation.
In response to the question of DELETED who can conduct the interview, CION indicated that this not need to be a person from the determining authority.
Reservation: DELETED
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(a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or
(b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement;
provided that he/she will be readmitted to that country.
In applying the concept of first country of asylum to the particular circumstances of an applicant for asylum applicant for international protection Member States may take into account Article 2732 (1).
Article 2732
The safe third country concept
-
1.Member States may apply the safe third country concept only where the competent
authorities are satisfied that a person seeking asylum international protection will be treated in accordance with the following principles in the third country concerned:
(a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
159
new
(b) there is no risk of serious harm as defined in [Directive …./../EC] [the Qualification Directive]; 159
Reservation: DELETED
Scrutiny reservation: DELETED
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160 161
Π2005/85/EC new
(b)(c) the principle of non-refoulement in accordance with the Geneva Convention is respected;
(c)(d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and
(d)(e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.
-
2.160The application of the safe third country concept shall be subject to rules laid down in
national legislation, including:
(a) rules requiring a connection between the person seeking asylum
international protection and the third country concerned on the basis of which it would be reasonable for that person to go to that country;
(b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;
(c)161 rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment on the grounds that the third country is not safe in his/her particular circumstances. The
Reservation: DELETED
DELETED opposed the proposed additional ground for challenging the application.
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applicant shall also be allowed to challenge the existence of a connection between him/her and the third country in accordance with point (a) .
-
3.When implementing a decision solely based on this Article, Member States shall:
(a) inform the applicant accordingly; and
(b) provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.
-
4.Where the third country does not permit the
applicant for asylumapplicant for international protection to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II. -
5.Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with the provisions of this Article.
SECTION III
Article 28
Unfounded applications
to Articles 19 and 20, Member States may only
application for asylum as unfounded if the determining authority has applicant does not qualify for refugee status pursuant to Directive 200
an
that the
In the cases
23(4)(b) and in cases of unfounded applications for
asylum
any of the
23(4)(a) and (c) to (o) apply,
Member States may also
an application as
where
defined as such in the
legislation.
Article 29
Minimum common list of
regarded as safe
of
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1. The Council shall, acting by a qualified majority on a proposal from the Co and after consultation of the European Parliament, adopt a minimum common list of third countries which shall be regarded by Member States as safe countries of origin in accordance with Annex II.
2. The Council may, acting by a qualified majority on a proposal from the Commission and after consultation of the European Parliament, amend the minimum common list by adding or removing third countries, in accordance with Annex II. The Commission shall examine any request made by the Council or by a Member State to submit a proposal to amend the minimum common list.
3. When making its proposal under paragraphs 1 or 2, the Commission shall make use of information from the Member States, its own information and, where necessary, information from UNHCR, the Council of Europe and other relevant international organisations.
4. Where the Council requests the Commission to submit a proposal for removing a third country from the minimum common list, the obligation of Member States pursuant to Article 31(2) shall be suspended with regard to this third country as of the day following the Council decision requesting such a submission.
5. Where a Member State requests the Commission to submit a proposal to the Council for removing a third country from the minimum common list, that Member State shall notify the Council in writing of the request made to the Commission. The obligation of this Member State pursuant to Article 31(2) shall be suspended with regard to the third country as of the day following the notification to the Council.
6. The European Parliament shall be informed of the suspensions under paragraphs 4 and 5.
7. The suspensions under paragraphs 4 and 5 shall end after three months, unless the Commission makes a proposal before the end of this period, to withdraw the third country from the minimum common list. The suspensions shall in any case end where the Council rejects a proposal by the Commission to withdraw the third country from the list.
8. Upon request by the Council, the Commission shall report to the European Parliament and the Council on whether the situation of a country on the minimum common lis
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in conformity with Annex II. When presenting its report, the Commission may make such recommendations or proposals as it deems appropriate.
Article 3033162
National designation of third countries as safe countries of origin
-
1.
Without prejudice to Article 29,Member States may retain or introduce legislation that
allows, in accordance with Annex II, for the national designation of third countries other than those appearing on the minimum common list, as safe countries of origin for the purposes of examining applications for asylum international protection This may include designation of part of a country as safe, where the conditions in Annex II are fulfilled in relation to that part.
2. By derogation from paragraph 1, Member States may retain legislation in force on 1 December 2005 that allows for the national designation of third countries, other than those appearing on the minimum common list, as safe countries of origin for the purposes of examining applications for asylum where they are satisfied that persons in the third countries concerned are generally neither subject to:
(a) persecution as defined in Article 9 of Directive 2004/83/EC; nor
(b) torture or inhuman or degrading treatment or punishment.
3. Member States may also retain legislation in force on 1 December 2005 that allows for the national designation of part of a country as safe, or a country or part of a country as safe for a specified group of persons in that country, where the conditions in paragraph 2 are fulfilled in relation to that part or group.163
162
163
DELETED: scrutiny reservation.
DELETED expressed regret as regards the deletion of the minimum common list of
countries regarded as safe countries of origin.
DELETED requested clarification as regards the proposed deletion of paragraph (3) of the Directive currently in force in the light of the possibility for internal protection provided for in the Qualifications Directive. In response, CION explained that internal protection and the deletion of paragraph (3) are not in contradiction because, on the basis of the deleted paragraph (3), a Member State had to establish beforehand whether part of a country is safe,
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4. In assessing whether a country is a safe country of origin in accordance with paragraphs 2 and 3, Member States shall have regard to the legal situation, the application of the law and the general political circumstances in the third country concerned.
new
Member States shall ensure a regular review of the situation in third countries designated as safe in accordance with this Article.
Π2005/85/EC (adapted) new
53. The assessment of whether a country is a safe country of origin in accordance with this Article shall be based on a range of sources of information, including in particular information from other Member States, the European Asylum Support Office, the UNHCR, the Council of Europe and other relevant international organisations.
64. Member States shall notify to the Commission the countries that are designated as safe countries of origin in accordance with this Article.
Article 3134
The safe country of origin concept
-
1.A third country designated as a safe country of origin in accordance with this
Directive either Article 29 or 30 may, after an individual examination of the application, be considered as a safe country of origin for a particular applicant for asylum only if:
(a) he/she has the nationality of that country; or
while the provision on internal protection provides that the Member State, at the time of taking the decision, determines that a person has access to protection in a part of a country and can safely and legally travel, gain admittance and settle in that part.
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32.
(b) he/she is a stateless person and was formerly habitually resident in that country;
(c) and he/she has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances and in terms of his/her qualification as a refugee or a person eligible for subsidiary protection in accordance with Directive 2004/83/EC[Directive …./../EC] [the Qualification Directive] .
2. Member States shall, in accordance with paragraph 1, consider the application for asylum as unfounded where the third country is designated as safe pursuant to Article 29.
Member States shall lay down in national legislation further rules and modalities for the application of the safe country of origin concept.
SECTION IV Article 3235164
Subsequent application
-
1.165Where a person who has applied for
asyluminternational protection in a Member
State makes further representations or a subsequent application in the same Member State, that Member State may shall examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as
164
165
Reservation: DELETED
Scrutiny reservation: DELETED
DELETED
DELETED
expressed concerns about the possibilities of this Article for abuse.
suggested "first instance decision" instead of "final decision". In response, CION indicated that a final decision is needed for an application to be a subsequent application.
requested CION for a list with relevant case law.
remarked that paragraph (1) refers to applications whereby applicants submit
DELETED
DELETED
new information and that such applications are not subsequent applications.
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the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework.
-
2.
166Moreover,For the purpose of taking a decision on the admissibility of an application
for international protection pursuant to Article 29 (2) (d) 167, Member States may apply a specific procedure as referred to in paragraph 3 of this Article , where a person makes a subsequent application for asylum international protection :
(a) after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 2016823 ;
(b) after a
also
has been taken on the
application. Member States may
to apply this procedure only after a final
has been
■fc»
new
(b) after a final decision has been taken on the previous application.
Π2005/85/EC new
-
3.170A subsequent application for
asyluminternational protection shall be subject first
to a preliminary examination as to whether, after the withdrawal of the previous
166
167
168
169
170
DELETED expressed concerns regarding paragraph (2) considering it too limiting as a consequence of the reference to Article 29(2)(d), and, furthermore, wanting to maintain the possibility to reject a subsequent application by making a reference to a previous decision.
DELETED considered the requirement for the application to be identical too limiting, and,
for that reason, proposed to delete the reference to Article 29(2)(d).
DELETED opposed the proposed deletion of the reference to Article 20 of the Directive
currently in force considering that the specific procedure referred to in paragraph (3) should also be possible in case of an implicit withdrawal or abandonment of an application.
DELETED opposed the proposed deletion of paragraph (b) of the Directive currently in
force considering the proposed new paragraph (b) too much of a limitation for Member
States.
DELETED requested clarification whether after a repatriation an application should be
considered as a subsequent application.
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application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings relating to the examination of whether he/she qualifies as a refugee or a person eligible for subsidiary protection by virtue of Directive 2004/83/ECDirective […./../EC] [the Qualification Directive] have arisen or have been presented by the applicant.
-
4.If, following the preliminary examination referred to in paragraph 3 of this Article, new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee or a person eligible for subsidiary protection by virtue of
Directive 2004/83/ECDirective […./../EC] [the Qualification Directive], the application shall be further examined in conformity with Chapter II. -
5.Member States may, in accordance with national legislation, further examine a subsequent application where there are other reasons why a procedure has to be re-opened.
-
6.Member States may decide to further examine the application only if the applicant concerned was, through no fault of his/her own, incapable of asserting the situations set forth in paragraphs 3, 4 and 5 of this Article in the previous procedure, in particular by exercising his/her right to an effective remedy pursuant to Article
3941. -
7.The procedure referred to in this Article may also be applicable in the case of a dependant who lodges an application after he/she has, in accordance with Article 6
(3)(4), consented to have his/her case be part of an application made on his/her behalf. In this case the preliminary examination referred to in paragraph 3 of this Article will consist of examining whether there are facts relating to the dependant’s situation which justify a separate application.
171
new
-
8.171If, following a final decision to consider a subsequent application inadmissible pursuant
to Article 29 (2) (d) or a final decision to reject a subsequent application as unfounded, the
Reservation: DELETED
Scrutiny reservation: DELETED
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person concerned lodges a new application for international protection in the same Member State before a return decision172 has been enforced, that Member State may:
(a)make an exception to the right to remain in the territory, provided the determining authority is satisfied that a return decision will not lead to direct or indirect refoulement in violation of international and Community obligations of that Member State; and/or
(b)provide that the application be subjected to the admissibility procedure in accordance with this Article and Article 29; and/or
(c)provide that an examination procedure be accelerated in accordance with Article 27 (6) (f).
In cases referred to in points (b) and (c) of the first subparagraph, Member States may derogate from the time limits normally applicable in the admissibility and/or accelerated procedures, in accordance with national legislation.
-
9.173Where a person with regard to whom a transfer decision has to be enforced pursuant to
Regulation (EC) […/…] [the Dublin Regulation] makes further representations or a
DELETED advocated a simple and speedy procedure for rejecting a subsequent application while leaving it to a Court or tribunal to determine whether the procedure has suspensive effect.
requested clarification whether paragraph (8) is necessary.
advocated that the procedure of paragraph (8) would apply as of the first
172 173
DELETED
DELETED
subsequent application. In response, CION indicated that this would not be possible in the light of the right of appeal and the related right to remain in the Member State pending the outcome of the appeal.
In the same vein, DELETED, pointing to the link between Article 35 and the Articles 8 and 41, underlined that a subsequent application should be treated speedily and that an applicant does not need to remain on the territory of the Member State.
expressed doubts as regards the procedure provided in paragraph (8).
requested clarification about the link between paragraph (8)(a), which seems to
DELETED
DELETED
oblige Member States to take a decision, and Article 29(2)(d), which provides that Member States "may" take a decision.
DELETED suggested "an obligation to leave the country" instead of "a return decision".
Scrutiny reservation: DELETED
DELETED requested clarification as regards the case that a person lodges applications in
several Member States. Furthermore, DELETED requested clarification whether a Member
State taking back an applicant for international protection from another Member State would
be obliged to gather information from the latter Member State. In this light, DELETED
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174
175 176
subsequent application in the transferring Member State174, those representations or subsequent applications shall be examined by the responsible Member State, as defined in Regulation (EC) […/…] [the Dublin Regulation], in accordance with this Directive.
Π2005/85/EC (adapted) new
Article 33175
Failure to appear
Member States may retain or adopt the procedure provided for in Article 32 in the case of an application for asylum filed at a later date by an applicant who, either intentionally or owing to gross negligence, fails to go to a reception centre or appear before the competent authorities at a specified time.
Article 3436176
Procedural rules
-
1.Member States shall ensure that applicants
for asylumfor international protection whose application is subject to a preliminary examination pursuant to Article3235 enjoy the guarantees provided for in Article1011 (1). -
2.Member States may lay down in national law rules on the preliminary examination pursuant to Article
3235. Those rules may, inter alia:
referred to the obligation contained in Article 27 to conclude a procedure within 6 months after the application was lodged.
underlined that DUBLIN transfers need to be done without delay.
suggested "responsible Member State" instead of "transferring Member State".
opposed deletion of Article 33 of the Directive currently in force.
DELETED
DELETED
DELETED
Reservation: DELETED
DELETED questioned why an applicant needs to be informed considering that this person has already received information at an earlier stage of the application.
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3.
(a) oblige the applicant concerned to indicate facts and substantiate evidence which justify a new procedure;
(b)
of the new
by the applicant concerned within a
time-limit after he/she
such information;177
(c)(b) permit the preliminary examination to be conducted on the sole basis of written submissions without a personal interview , with the exception of cases referred to in Article 35 (7) .178
The conditions shall not render impossible the access of applicants for asylum to a new procedure or result in the effective annulment or severe curtailment of such access.
Member States shall ensure that:
177
178
(a) the applicant is informed in an appropriate manner of the outcome of the preliminary examination and, in case the application will not be further examined, of the reasons for this and the possibilities for seeking an appeal or review of the decision;
(b) if one of the situations referred to in Article 32(2) 35(3) applies, the determining authority shall further examine the subsequent application in conformity with the provisions of Chapter II as soon as possible.
DELETED
DELETED
opposed the deletion of point 2(b) of the Directive currently in force. opposed the proposal to add "with the exception of cases referred to in
Article 35(7)".
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SECTION V Article 3537179
Border procedures
-
1.Member States may provide for procedures, in accordance with the basic principles and
guarantees of Chapter II, in order to decide at the border or transit zones of the Member State on:
(a) the admissibility of an applications made at such locations.; and/or
179
180
new
(b) the substance of an application in an accelerated procedure pursuant to Article 27 (6).180
Scrutiny reservation: DELETED
DELETED advocated the retention of the possibility of specific procedures for examinations at border and transit zones as provided for by Article 24 of the Directive currently in force.
DELETED opposed the restriction of possibilities for rejecting manifestly unfounded
applications.
DELETED requested clarification how the provision on border or transit zones would relate to its centre for receiving applicants for international protection at DELETED airport, pointing out that this centre provides at least equivalent facilities to centres not located at a border or transit zone and has even been qualified as a best practice in the Union. DELETED requested clarification of the relation between the between the provisions on border and transit zones and the Schengen border code which allows Member States to refuse access to persons without documents. In response, CION indicated that, on the basis of recital (20) and Article 3 of the Schengen border code, in case of conflict, the asylum rules prevail.
DELETED opposed the reference to Article 27(6).
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Π2005/85/EC new Council
r, when procedures as set out in paragraph 1 do not exist, Member States may
aintain, subject to the
of
and in accordance with the laws or
regulations in force on 1 December
procedures derogating from the
and guarantees
in Chapter II, in order to
at the border or
zones
as to whether applicants for asylum who have at such locations, may enter their territory.
and made an application for asylum
3. The procedures referred to in paragraph 2 shall ensure concerned:
that the persons
(a) are allowed to
at the border or
zones of the Member
prejudice to Article 7;
(b) are be
of
and obligations, as
10(1) (a);
(c) have
y, to the
of an interpreter, as
10(1)(b);
(d) are interviewed, before the competent authority takes a relation to their application for asylum by persons with app
n in such procedures, i knowledge of the
relevant standards applicable in the field of asylum and refugee
as
Articles 12, 13 and 14;
(e) can consult a legal
or counsellor
or permitted as such under national
, as described i
15(1); and
(f) have a
in the case of
inors, as
17(1), unless
17(2) or (3) applies.
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Moreover, in case permission to enter is refused by a competent authority, this competent authority shall state the reasons in fact and in law why the application for asylum is considered as unfounded or as inadmissible.
42. Member States shall ensure that a decision in the framework of the procedures provided for in paragraph 21 is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant for asylum shall be granted entry to the territory of the Member State in order for his/her application to be processed in accordance with the other provisions of this Directive.181
53. In the event of particular types of arrivals, or arrivals involving a large number of third country nationals or stateless persons lodging applications for asylum international protection at the border or in a transit zone, which makes it practically impossible to apply there the provisions of paragraph 1 or the specific procedure set out in paragraphs 2 and 3, those procedures may also be applied where and for as long as these third country nationals or stateless persons are accommodated normally at locations in proximity to the border or transit zone.
SECTION VI
Article 3638
The European safe third countries concept
-
1.Member States may provide that no, or no full, examination of the asylum application and of the safety of the applicant in his/her particular circumstances as described in Chapter II, shall take place in cases where a competent authority has established, on the basis of the facts, that the applicant for
asyluminternational protection is seeking to enter or has entered illegally into its territory from a safe third country according to paragraph 2. -
2.A third country can only be considered as a safe third country for the purposes of paragraph 1 where:
181
Scrutiny reservation: DELETED in particular as regards the 4-week period.
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(a) it has ratified and observes the provisions of the Geneva Convention without any geographical limitations;
(b) it has in place an asylum procedure prescribed by law; and
(c) it has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and observes its provisions, including the standards relating to effective remedies; and.
(d) it has been so designated by the Council in accordance with paragraph 3.
3. The Council shall, acting by qualified majority on a proposal from the Commission and after consultation of the European Parliament, adopt or amend a common list of third countries that shall be regarded as safe third countries for the purposes of paragraph 1.
43. The Member States concerned shall lay down in national law the modalities for implementing the provisions of paragraph 1 and the consequences of decisions pursuant to those provisions in accordance with the principle of non-refoulement under the Geneva Convention, including providing for exceptions from the application of this Article for humanitarian or political reasons or for reasons of public international law.
54. When implementing a decision solely based on this Article, the Member States concerned shall:
(a) inform the applicant accordingly; and
(b) provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.
65. Where the safe third country does not re-admit the applicant for asylum, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II.
7. Member States which have designated third countries as safe countries in accordance with national legislation in force on 1 December 2005 and on the basis of the criteria in paragraph 2(a), (b) and (c), may apply paragraph 1 to these third countries until the Council has adopted the common list pursuant to paragraph 3.
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CHAPTER IV
PROCEDURES FOR THE WITHDRAWAL OF REFUGEE INTERNATIONAL
PROTECTION STATUS
Article 3739
Withdrawal of refugee international protection status
Member States shall ensure that an examination to withdraw the refugee international protection status of a particular person may commence when new elements or findings arise indicating that there are reasons to reconsider the validity of his/her refugee international protection status.
Article 38 40
Procedural rules
-
1.Member States shall ensure that, where the competent authority is considering withdrawing
the refugee international protection status of a third country national or stateless person in accordance with Article 14 or Article 19 of Directive 2004/83/ECDirective […./../EC] [the Qualification Directive] , the person concerned shall enjoy the following guarantees:
(a) to be informed in writing that the competent authority is reconsidering his or her qualification for refugee international protection status and the reasons for such a reconsideration; and
(b) to be given the opportunity to submit, in a personal interview in accordance with Article 10 11 (1) (b) and Articles 12, 13, and14 and 15 or in a written statement, reasons as to why his/her refugee international protection status should not be withdrawn.
In addition, Member States shall ensure that within the framework of such a procedure:
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(a) the competent authority is able to obtain precise and up-to-date information from various sources, such as, where appropriate, from the UNHCR and the European Asylum Support Office , as to the general situation prevailing in the countries of origin of the persons concerned; and
(b) where information on an individual case is collected for the purposes of reconsidering the refugee international protection status, it is not obtained from the actor(s) of persecution or serious harm in a manner that would result in such actor(s) being directly informed of the fact that the person concerned is a refugee beneficiary of international protection whose status is under reconsideration, nor jeopardise the physical integrity of the person and his/her dependants, or the liberty and security of his/her family members still living in the country of origin.
-
2.Member States shall ensure that the decision of the competent authority to withdraw the
refugeeinternational protection status is given in writing. The reasons in fact and in law shall be stated in the decision and information on how to challenge the decision shall be given in writing. -
3.Once the competent authority has taken the decision to withdraw the
refugee
international protection status, Article 1518, paragraph 2, Article 1619, paragraph 1 and Article 21 25 are equally applicable.
-
4.By derogation to paragraphs 1, 2 and 3 of this Article, Member States may decide that the
refugeeinternational protection status shall lapse by lawin case of cessation in accordance with Article 11(1)(a) to (d) of Directive 2004/83/EC or182if therefugee
beneficiary of international protection has unequivocally renounced his/her recognition as a refugee beneficiary of international protection . Member States may also provide that refugee status or subsidiary protection status shall lapse by law where a refugee or a person granted subsidiary protection has acquired the nationality of the Member State concerned. .
182 DELETED proposed to maintain the phrase "in case of cessation in accordance with Article 11(1) (a) to (d) of Directive 2004/83/EC", considering that in the cases mentioned in these littera, it must remain possible to decide to lapse the international protection status while avoiding an onerous procedure.
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CHAPTER V
APPEALS PROCEDURES
Article 3941183
The right to an effective remedy
-
1.184Member States shall ensure that applicants for
asyluminternational protection
have the right to an effective remedy before a court or tribunal, against the following:
(a) a decision taken on their application for asylum international protection including a decision:
183
184
new
(i) to consider an application unfounded in relation to refugee status and/or subsidiary protection status,
(i)(ii)to consider an application inadmissible pursuant to Article 25(2) 29,
(ii)(iii) taken at the border or in the transit zones of a Member State as described in Article 35 37 (1),
Reservation: DELETED. DELETED opposed the paragraphs (1)(a) and (2) considering these contrary to the single status asylum granted in the DELETED asylum procedure. In response, CION indicated that, at European level, refugee status and status of beneficiary of subsidiary protection are different.
Scrutiny reservation: DELETED
DELETED
DELETED
proposed to restructure Article 41 announcing a written proposal. requested clarification whether the term "court or tribunal" also includes
institutions such as the Court of Justice.
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(iii)(iv) not to conduct an examination pursuant to Article 3638;
(b) a refusal to re-open the examination of an application after its discontinuation pursuant to Articles 19 23 and 20 24;
(c) a decision not to further Articles 32 and 34;185
the subsequent application pursuant to
(d) a decision refusing entry within the framework of the procedures provided for under Article 35(2);186
(e)(c)a decision to withdraw of refugee international protection status pursuant to Article 3840.
new
-
2.187Member States shall ensure that persons recognized by the determining authority as
eligible for subsidiary protection have the right to an effective remedy as referred to in paragraph 1 against a decision to consider an application unfounded in relation to refugee status.
3.
The person concerned shall be entitled to the rights and benefits guaranteed to beneficiaries of subsidiary protection pursuant to Directive […./../EC] [the Qualification Directive] pending the outcome of the appeal procedures.188
189Member States shall ensure that the effective remedy referred to in paragraph 1 provides for a full examination of both facts and points of law, including an ex nunc examination of
185 186 187 188 189
DELETED
DELETED
Scrutiny reservation on proposed deletion:
Scrutiny reservation on proposed deletion:
Scrutiny reservation: DELETED
Scrutiny reservation on second subparagraph: DELETED
Reservation: DELETED.
DELETED considered the proposed range of the examination before a court or a tribunal at
first instance covering a full ex nunc examination of facts and law, too extensive and prone
to abuse.
Scrutiny reservation: DELETED
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the international protection needs pursuant to Directive […./../EC] [the Qualification Directive], at least in appeal procedures before a court or tribunal of first instance.
Π2005/85/EC Article 4 new
24. Member States shall provide for reasonable time-limits190 and other necessary rules for the applicant to exercise his/her right to an effective remedy pursuant to paragraph 1.
Π2005/85/EC Article 4
. Member States
where
riate,
for rules in accordance
international obligations dealing with:
(a)the question of whether the remedy pursuant to paragraph 1 shall have the ef of allowing applicants to remain in the Member State concerned pending outcome;
(b)the
of legal remedy or
measures where the remedy pursuant
to paragraph 1 does not have the effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States may also provide for an ex officio remedy; and
(c) the grounds for challenging a
under
25(2)(c) in accordance with the
methodology applied under
27(2)(b) and (c).
190
DELETED expressed concerns about the broad range the examination by the court or tribunal at first instance can encompass. Furthermore, DELETED requested CION to provide the relevant case-law.
DELETED requested clarification whether a court should only look at evidence newly
submitted or actively gather new evidence.
requested clarification about the link with Article 35(1).
requested clarification as regards the term "reasonable" time limits" recalling
DELETED
DELETED
that a national court ruled that a 7-day time limit was too short and that, as a result,
DELETED now applies the standard time-limit of 15 days.
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new
The time limits shall not render impossible or excessively difficult the access of applicants to an effective remedy pursuant to paragraph 1. Member States may also provide for an ex officio review of decisions taken pursuant to Article 37.191
5.192 Without prejudice to paragraph 6, the remedy provided for in paragraph 1 of this Article shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome.
6.193 In the case of a decision taken in the accelerated procedure pursuant to Article 27 (6)194 and of a decision to consider an application inadmissible pursuant to Article 29 (2) (d), and where the right to remain in the Member State pending the outcome of the remedy is not foreseen under national legislation, a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon request of the concerned applicant or acting on its own motion195.
191 192
193
194
195
DELETED requested clarification about the reasons for proposing this sentence. Reservation: DELETED
Scrutiny reservation: DELETED
DELETED expressed concerns about the general provision that applicants can stay in the
Member States pending their appeal.
In response, CION indicated that proposal regarding suspensive effect is in line with case
law while providing some flexibility to Member States.
Reservation: DELETED
Scrutiny reservation: DELETED
DELETED suggested to clarify the wording of paragraph (6).
DELETED, expressing concerns about the possibilities for applicants to remain in the Member State, requested clarification whether paragraph (6) implies that, irrespective the delays, an applicant can remain in the Member State.
DELETED, supported by DELETED and referring to the paragraphs (5), (6) and (7), considered it too restrictive to have as only exemptions accelerated procedures and inadmissible applications. Furthermore, DELETED considered that subsequent applications need not to have suspensive effect in all cases and that no suspensive effect should be provided in case of a threat to public order (supported by DELETED) or in case of return. DELETED could accept to include in paragraph (6) the reference to accelerated procedures and proposed, supported by DELETED, to include manifestly unfounded cases as well.
DELETED proposed to delete "or acting on its own motion".
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This paragraph shall not apply to procedures referred to in Article 37.196
7.197 Member States shall allow the applicant to remain in the territory pending the outcome of the procedure referred to in paragraph 6.
-
8.Paragraphs 5, 6 and 7 shall be without prejudice to Article 26 of Regulation (EC) No
[…/…. [the Dublin Regulation].
Π2005/85/EC Article 4 new
49.198 Member States may shall lay down time-limits for the court or tribunal pursuant to paragraph 1 to examine the decision of the determining authority.
510. Where an applicant has been granted a status which offers the same rights and benefits
under national and Community law as the refugee status by virtue of Directive 2004/83/EC Directive […./../EC] [the Qualification Directive] , the applicant may be considered as having an effective remedy where a court or tribunal decides that the remedy pursuant to paragraph 1 is inadmissible or unlikely to succeed on the basis of insufficient interest on the part of the applicant in maintaining the proceedings.
196
197
DELETED proposed to delete this sentence. In response, CION indicated that the European Court of Human Rights has ruled that border procedures must have suspensive effect.
Scrutiny reservation: DELETED.
DELETED explained that, in DELETED, a court can decide that an applicant can remain in the Member State but cannot decide that an applicant is not allowed to remain. Considering that paragraph (7) seems to apply to both situations, DELETED requested a scrutiny reservation.
198
DELETED proposed to insert an exemption for subsequent applications.
Reservation: DELETED considering it not possible that a Member State lays down time-
limits for courts and tribunals.
Scrutiny reservation: DELETED.
DELETED feared that an obligation of Member States to lay down time-limits for the court
or tribunal may be in conflict with their autonomy.
DELETED could accept to indicate that the courts and tribunal should examine the decision
of the determining authority "speedily".
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611. Member States may also lay down in national legislation the conditions under which it can be assumed that an applicant has implicitly withdrawn or abandoned his/her remedy pursuant to paragraph 1, together with the rules on the procedure to be followed.
CHAPTER VI
GENERAL AND FINAL PROVISIONS
Article 4042
Challenge by public authorities
This Directive does not affect the possibility for public authorities of challenging the administrative and/or judicial decisions as provided for in national legislation.
Article 4143
Confidentiality
Member States shall ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work.
new
Article 44
Cooperation
Member States shall each appoint a national contact point and communicate its address to the Commission. The Commission shall communicate that information to the other Member States.
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Member States shall, in liaison with the Commission, take all appropriate measures to establish direct cooperation and an exchange of information between the competent authorities.
Π2005/85/EC (adapted) new
Article 4245
Report
No later than 1 December 2009 […] , the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose any amendments that are necessary. Member States shall send the Commission all the information that is appropriate for drawing up this report. After presenting the report, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States at least every two years five years .
Article 4346199
200
Transposition
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 December 2007 Articles […] [The Articles which have been changed as to the substance by comparison with the earlier Directive] by
[…] at the latest . Concerning
5, Member States shall bring into force the
regulations and
necessary to comply
by 1
199
200
Reservation: DELETED on the obligation for Member States to communicate correlation tables in the second and the fourth subparagraph.
DELETED requested clarification as to the single date of transposition provided for in
Article 47 in view of the fact that Member States not necessarily transpose European legislation at the same time.
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December 2008. They shall forthwith inform communicate to the Commission thereof the text of those provisions and a correlation table between those provisions and this Directive .
new
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Article 27 (3) by [3 years from the date of the transposition]. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
They shall also include a statement that references in existing laws, regulations and administrative provisions to the directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.
Member States shall communicate to the Commission the text of the main
provisions of national law which they adopt in the field covered by this Directive and a
correlation table between those provisions and this Directive .
Article 4447
Transitional provisions
Member States shall apply the laws, regulations and administrative provisions set out in subparagraph 1 of Article 43 46 to applications for asylum international protection lodged after 1 December 2007 […] and to procedures for the withdrawal of refugee
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status international protection started after 1 December 2007 […] .
Applications submitted before […] and procedures for the withdrawal of refugee status initiated before […] shall be governed by the laws, regulations and administrative provisions in accordance with Directive 2005/85/EC.
new
Member States shall apply the laws, regulations and administrative provisions set out in subparagraph 2 of Article 46 to applications for international protection lodged after […]. Applications submitted before […] shall be governed by the laws, regulations and administrative provisions in accordance with Directive 2005/85/EC.
Œ
Article 48
Repeal
Directive 2005/85/EC is repealed with effect from [day after the date set out in the first subparagraph of Article 46 of this Directive], without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law of the Directive set out in Annex III, Part B.
References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV.
Π2005/85/EC (adapted)
Article 4549
Entry into force
This Directive shall enter into force on the 20thtwentieth day following that of its publication in the Official Journal of the European Union.
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Œ
Articles [...] shall apply from [day after the date set out in the first subparagraph of Article 46].
Π2005/85/EC (adapted)
Article 4650
Addressees
This Directive is addressed to the Member States in conformity with the Treaty establishing the European Community.
Done at [...]
For the European Parliament
The President
[…]
For the Council The President […]
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Π2005/85/EC
ANNEX I
Definition of "determining authority"
When implementing the provision of this Directive, Ireland may, insofar as the provisions of section 17(1) of the Refugee Act 1996 (as amended) continue to apply, consider that:
-
-"determining authority" provided for in Article 2
(e)(f) of this Directive shall, insofar as the examination of whether an applicant should or, as the case may be, should not be declared to be a refugee is concerned, mean the Office of the Refugee Applications Commissioner; and -
-"decisions at first instance" provided for in Article 2
(e)(f) of this Directive shall include recommendations of the Refugee Applications Commissioner as to whether an applicant should or, as the case may be, should not be declared to be a refugee.
Ireland will notify the Commission of any amendments to the provisions of section 17(1) of the Refugee Act 1996 (as amended).
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ANNEX II
Designation of safe countries of origin for the purposes of Articles 29 and 30 33(1)
A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC Directive […./../EC] [the Qualification Directive], no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.
In making this assessment, account shall be taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by:
(a) the relevant laws and regulations of the country and the manner in which they are applied;
(b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention;
(c) respect of the non-refoulement principle according to the Geneva Convention;
(d) provision for a system of effective remedies against violations of these rights and freedoms.
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Π2005/85/EC new
ANNEX III
of
--------------------------
or
for asylum"
When implementing the
of
Spain
as the
of
30/1992 de
de las
y del
of 26 November 1992 and "Ley 29/1998 reguladora de la
of 13 July 1998
to apply,
t, for the purposes of Chapter
of
or
for asylum"
2(c) of
shall
------------
as
lished in the abovementioned
A
------------
shall be
to the same guarantees as an
------------
or an "applicant for
asylum" as set out
for the purposes of
to an
remedy in Chapter
the
ission of any relevant amendments to the
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Council Directive 2005/85/EC
Œ
ANNEX III
Part A
Repealed Directive (referred to in Article 48)
(OJ L 326, 13.12.2005, p. 13)
Part B
Time-limit for transposition into national law (referred to in Article 48)
Directive
Time-limits for transposition
2005/85/EC
First deadline: 1 December 2007 Second deadline: 1 December 2008
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Œ
ANNEX IV
Correlation Table
This directive
Article 1 Article 2 (a) Article 2 (b) Article 2 (c) -
Article 2 (d) Article 2 (e) Article 2 (f)
Article 2 (g)
Article 2 (h) Article 2 (i) Article 2 (j) Article 2 (k) Article 3 (1) Article 3 (2) Article 3 (3) Article 3 (4)
Article 1 Article 2 (a) Article 2 (b) Article 2 (c) Article 2 (d) Article 2 (e) Article 2 (f) Article 2 (g) Article 2 (h) Article 2 (i) Article 2 (j) Article 2 (k) Article 2 (l) Article 2 (m) Article 2 (n) Article 2 (o) Article 2 (p) Article 3 (1) Article 3 (2) -Article 3 (3)
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Article 4 (1) first subparagraph
Article 4 (1) second subparagraph
-
Article 4 (2)
Article 4 (3)
-
Article 5
Article 6 (1)
Article 6 (2) Article 6 (3)
Article 6 (4) Article 6 (5)
Article 7 (1)
Article 7 (2)
-
Article 8 (1)
-
Article 8 (2) (a)
Article 8 (2) (b)
Article 8 (2) (c)
Article 4 (1) first subparagraph
-
Article 4 (2)
Article 4 (3)
Article 4 (4)
Article 4 (5)
Article 5
-
Article 6 (1)
Article 6 (2)
Article 6 (3)
Article 6 (4)
Article 6 (5)
Article 6 (6)
Article 6 (7)
-
Article 6 (8)
Article 6 (9)
Article 7 (1) to (3)
Article 8 (1)
Article 8 (2)
Article 8 (3)
Article 9 (1)
Article 9 (2)
Article 9 (3) (a)
Article 9 (3) (b)
Article 9 (3) (c)
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Article 8 (3)
Article 8 (5)
Article 9 (1)
Article 9 (2), first subparagraph
Article 9 (2), second subparagraph
Article 9 (3)
-
Article 10
Article 11
Article 12 (1)
Article 12 (2) (a)
Article 12 (2) (b)
Article 12 (2) (c)
Article 12 (3)
Article 12 (4) to (6)
Article 13 (1) and (2)
Article 13 (3) (a)
-
Article 13 (3) (b)
Article 13 (4) Article 13 (5) -Article 14
Article 9 (3) (d)
Article 9 (4)
Article 9 (5)
Article 10 (1)
Article 10 (2), first subparagraph
-
Article 10 (3)
Article 10 (4)
Article 11
Article 12
Article 13 (1)
Article13 (2) (a)
Article 13 (2) (b) Article 13 (3) to (5) Article 14 (1) and (2) Article 14 (3) (a) Article 14 (3) (b) Article 14 (3) (c) Article 14 (3) (d) Article 14 (3) (e) Article 14 (4) -
Article 15 -Article 16
7533/10 ANNEX IV
DG H 1B
VH/bdn 3
LIMITE EN
Article 17
Article 15 (1), (2) and |
(3) |
first subparagraph |
Article 18 (1), (2) and (3) first subparagraph |
Article 15 (3) (a) |
- |
||
Article 15 (3) (b) |
Article 18 (3) (a) |
||
Article 15 (3) (c) |
Article 18 (3) (b) |
||
Article 15 (3) (d) |
- |
||
Article 15 (3) second |
subparagraph |
- |
|
- |
Article 18 (3) second subparagraph |
||
Article 15 (4) |
Article 18 (4) |
||
- |
Article 18 (5) |
||
Article 15 (5) |
Article 18 (6) |
||
Article 15 (6) |
Article 18 (7) |
||
Article 16 (1) |
Article 19 (1) |
||
Article 16 (2) |
Article 19 (2) |
||
- |
Article 19 (3) |
||
Article 16 (3) |
Article 19 (4) |
||
Article 16 (4) |
Article 19 (4) |
||
- |
Article 20 (1) to (3) |
||
Article 17 (1) |
Article 21 (1) |
||
Article 17 (2) (a) |
Article 21 (2) (a) |
||
Article 17 (2) (b) |
- |
||
Article 17 (2) (c) |
Article 21 (2) (b) |
||
Article 17 (3) |
- |
||
Article 17 (4) |
Article 21 (3) |
||
- |
Article 21 (4) |
||
Article 17 (5) |
Article 21 (5) |
||
7533/10 |
VH/bdn 4 |
||
ANNEX IV |
DG H 1B LIMITE EN |
||
Article 17 (6)
Article 18
Article 19
Article 20
Article 20 (1) (a) and (b)
Article 21 (6)
Article 21 (7)
Article 22
Article 23
Article 24
Article 24 (1) (a) and (b)
Article 20 (2) |
Article 24 (2) |
||
- |
Article 24 (3) |
||
Article 21 |
Article 25 |
||
Article 22 |
Article 26 |
||
Article 23 |
Article 27 |
||
Article 23 (1) |
Article 27 (1) |
||
Article 23 (2), first subparagraph |
Article 27 (2) |
||
Article 23 (2), second |
subparagraph |
- |
|
- |
Article 27 (3) |
||
- |
Article 27 (4) |
||
Article 23 (3) |
Article 27 (5) |
||
Article 23 (4) |
Article 27 (6) |
||
Article 23 (4) (a) |
Article 27 (6) (a) |
||
Article 23 (4) (b) |
- |
||
Article 23 (4) (c) (i) |
Article 27 (6) (b) |
||
Article 23 (4) (c) (ii) |
- |
||
Article 23 (4) (d) |
Article 27 (6) (c) |
||
Article 23 (4) (e) |
- |
||
Article 23 (4) (f) |
Article 27 (6) (d) |
||
7533/10 |
VH/bdn 5 |
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ANNEX IV |
DG H 1B |
LIMITE EN |
|
Article 23 (4) (g) Article 23 (4) (h) Article 23 (4) (i) Article 23 (4) (j) Article 23 (4) (k) to (n) Article 23 (4) (o)
Article 24
Article 25
Article 25 (1)
Article 25 (2) (a) to (c)
Article 25 (2) (d) and (e)
Article 25 (2) (f) and (g)
-
Article 26
Article 27
Article 27 (1) (a)
-
Article 27 (1) (b) to (d)
Article 27 (2) to (5)
Article 28
Article 29
Article 30
Article 30 (2) to (4)
Article 27 (6) (f)
-
Article 27 (6) (e)
Article 27 (7)
Article 27 (8)
Article 27 (9)
Article 28
-
Article 29
Article 29 (1)
Article 29 (2) (a) to (c)
-
Article 29 (2) (d) and (e)
Article 30
Article 31
Article 32
Article 32 (1) (a)
Article 32 (1) (b)
Article 32 (1) (c) to (e)
Article 32 (2) to (5)
Article 33
7533/10 ANNEX IV
DG H 1B
VH/bdn 6
LIMITE EN
Article 30 (5)
Article 30 (6)
Article 31
Article 31 (2)
Article 31 (3)
Article 32 (1) to (7)
-
Article 33
Article 34
Article 34 (1) and (2) (a)
Article 34 (2) (b)
Article 34 (2) (c)
Article 34 (3) (a) and (b)
Article 35 (1)
-
Article 35 (2) and (3) (a) to (f)
Article 35 (4)
Article 35 (5)
Article 36 (1) to (2)(c)
Article 36 (2)(d)
Article 36(3)
Article 36(4)
Article 36(5)
Article 36(6)
Article 36(7)
Article 37
Article 33 (2)
Article 33 (3)
Article 33 (4)
Article 34
-
Article 34 (2)
Article 35 (1) to (7)
Article 35 (8) and (9)
-
Article 36
Article 36 (1) and (2) (a)
-
Article 36 (2) (b)
Article 36 (3) (a) and (b)
Article 37 (1) (a)
Article 37 (1) (b)
-
Article 37 (2)
Article 37 (3)
Article 38 (1) to 2(c)
Article 38(3) Article 38(4) Article 38(5) -Article 39
7533/10 ANNEX IV
DG H 1B
VH/bdn 7
LIMITE EN
Article 38
Article 39
Article 39 (1) (a)
-
Article 39 (1) (a) (i)
Article 39 (1) (a) (ii)
Article 39 (1) (a) (iii)
Article 39 (1) (b)
Article 39 (1) (c) and (d)
Article 39 (1) (e)
-
Article 39 (2)
Article 39 (3)
-
Article 39 (4)
Article 39 (5)
Article 39 (6)
Article 40
Article 41
-
Article 42
Article 43
Article 44
-
Article 45
Article 46
Annex I
Article 40 Article 41 Article 41 (1) (a) Article 41 (1) (a) (i) Article 41 (1) (a) (ii) Article 41 (1) (a) (iii) -
Article 41 (1) (b) -
Article 41 (1) (c) Article 41 (2) and (3) Article 41 (4) -
Article 41 (5) to (8) Article 41 (9) Article 41(10) Article 41 (11) Article 42 Article 43 Article 44 Article 45 Article 46 Article 47 Article 48 Article 49 Article 50 Annex I
7533/10 ANNEX IV
DG H 1B
VH/bdn 8
LIMITE EN
Annex II Annex II
Annex III -
-
-Annex III
-
-Annex IV
7533/10 VH/bdn 9
ANNEX IV DG H 1B LIMITE EN
- 21 okt '09COM(2009)554 - Minimumnormen voor de procedures in de lidstaten voor internationale bescherming
- 1 sep '05COM(2005)391 - Gemeenschappelijke normen en procedures in de lidstaten voor de terugkeer van onderdanen van derde landen die illegaal op hun grondgebied verblijven
- 12 sep '01COM(2001)510 - Minimumnormen voor de erkenning en de status van onderdanen van derde landen en staatlozen als vluchtelingen of als personen die anderszins internationale bescherming behoeven
- 26 jul '01COM(2001)447 - Criteria en instrumenten om te bepalen welke lidstaat verantwoordelijk is voor de behandeling van een asielverzoek dat door een onderdaan van een derde land bij een van de lidstaten wordt ingediend
- 20 sep '00COM(2000)578 - Minimumnormen voor de procedures in de lidstaten voor de toekenning of intrekking van de vluchtelingenstatus
