Explanatory Memorandum to COM(2009)554 - Minimum standards on procedures in Member States for granting and withdrawing international protection (Recast) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2009)554 - Minimum standards on procedures in Member States for granting and withdrawing international protection (Recast). |
|---|---|
| source | COM(2009)554  |
| date | 21-10-2009 |
This proposal is a recasting of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status i (hereafter – the Asylum Procedures Directive).
Contributions received by stakeholders in response to the Green Paper consultation i have pointed to the proliferation of disparate procedural arrangements at national level and deficiencies regarding the level of procedural guarantees for asylum applicants which mainly result from the fact that the Directive currently allows Member States a wide margin of discretion. Consequently, the Directive lacks the potential to back up adequately the Qualification Directive i and ensure a rigorous examination of applications for international protection in line with international and Community obligations of Member States regarding the principle of non-refoulement .
As announced in the Policy Plan on Asylum i, this proposal is part of initiatives which aim to ensure a higher degree of harmonisation and better standards of international protection across the Union. The envisaged measures are expected to improve the coherence between EU asylum instruments , simplify, streamline and consolidate procedural arrangements across the Union and lead to more robust determinations at first instance, thus preventing abuse and improving efficiency of the asylum process .
This proposal is linked with the Commission's proposal for a regulation establishing a European Asylum Support Office i, which inter alia aims to provide practical assistance to Member States with a view to enhancing the quality of asylum decision making.
As concerns the financial and administrative burdens arising from the envisaged measures for those Member States which are faced with specific and disproportionate pressures on their asylum systems, due in particular to their geographical or demographic situation, the resources of the European Refugee Fund will be mobilised to provide adequate support to these Member States and to ensure that the burden will be shared more fairly between all Member States. In addition, the European Asylum Support Office will coordinate and support common action to assist Member States faced with particular pressures, and, more generally, help Member States identify the most cost-efficient ways to implement the envisaged measures through the pooling of good practice and the structured exchange of high-level expertise.
Work on the creation of a Common European Asylum System (CEAS) started immediately after the entry into force of the Treaty of Amsterdam in May 1999, on the basis of the principles approved by the Tampere European Council. During the first phase of the CEAS (1999-2005), the goal was to harmonise Member States' legal frameworks on the basis of minimum standards. The Asylum Procedures Directive was the last of the five pieces of EU asylum legislation. It aims to establish minimum standards on procedures in Member States for granting and withdrawing refugee status.
This proposal responds to the call of the Hague Programme to submit proposals for the second-phase instruments to the Council and the European Parliament with a view to their adoption before the end of 2010. It aims to address the deficiencies in procedures for granting and withdrawing international protection and to ensure higher and more harmonised standards of protection, thus progressing towards a common asylum procedure and a uniform status, as set out in the Tampere conclusions and reiterated in the Hague Programme.
Detailed analysis of the problems identified in relation to this directive and concerning the preparation carried out for its adoption, the identification and assessment of policy options and the identification and assessment of the preferred policy option are included in the Impact Assessment, annexed to this proposal.
This proposal is fully in line with the Tampere European Council Conclusions of 1999 and the Hague Programme of 2004 in relation to the establishment of the CEAS. It also responds to the call of the European Pact on Immigration and Asylum, adopted by the European Council on 17 October 2008 i, to present proposals for establishing, in 2012 at the latest, a single asylum procedure comprising common guarantees.
At present, the Commission has at its disposal a large amount of information regarding the implementation of the Directive, including extensive information on the deficiencies concerning the terms of the Directive and the manner in which it is applied in practice.
- In June 2007, the Commission presented a Green Paper which aimed to identify possible options for shaping the second phase of the CEAS. The response to the public consultation included 89 contributions from a wide range of stakeholders . The issues raised and the suggestions put forward during the consultation have provided the basis for the Policy Plan that lists the measures that the Commission intends to propose in order to complete the second phase of the CEAS, including the proposal to amend the Asylum Procedures Directive. The Commission has conducted a careful analysis of the transposition measures , notified by Member States.
- The implementation of the Directive and possible ways to address the current gaps in the Community framework on asylum procedures were discussed in 6 experts' meetings organised by the Commission between February 2008 and January 2009. These consultations involved Government experts (4 experts' meetings held on 25.02.2008, 29.09.2008, 25.11.2008 and 12.01.2009), NGOs (08.01.2009), UNHCR and legal practitioners providing legal advice to asylum applicants in national procedures (17.03.2008), and focused on the key elements of the Directive. These consultations provided the Commission with valuable information regarding the areas to be addressed in the present proposal. Parties consulted expressed a general consensus to achieving further harmonisation of procedural arrangements and providing applicants for international protection with adequate guarantees thus ensuring an efficient and fair examination of their claims, in line with the Qualification Directive. Some Member States however underlined the need to retain a certain degree of flexibility regarding the organisation of asylum procedures and to maintain procedural arrangements aimed at preventing abuse, whereas others expressed a preference to address deficiencies of the present framework via practical cooperation measures rather than via a legislative intervention.
- An external study was conducted on behalf of the Commission, analysing the existing evidence and results of consultations.
- Further data was collected in response to several detailed questionnaires addressed by the Commission to all Member States and to civil society stakeholders.
- Important information on the implementation of the directive was also found in reports on the projects co-funded by European Refugee Fund and in the report on asylum procedures in the IGC participating states (the Blue Book).
On the basis of the Green Paper contributions and consultations with Government and Civil Society experts, academic commentaries, MS' replies to the questionnaires and the analysis of the transposition measures carried out by the Commission, two main problems have been identified. Namely, the minimum standards are (a) insufficient and (b) vague, thus lacking the potential to ensure fair and efficient examinations. Taking into consideration the serious gaps pointed out by many commentators and stakeholders, the Commission decided to propose the procedural guarantees and notions which are instrumental in ensuring reliable determinations in line with the Qualification Directive. This inter alia includes guarantees aimed at giving an applicant a realistic opportunity to substantiate his/her request for international protection, special guarantees for vulnerable applicants and arrangements on quality decision making. These standards are vital with a view to preventing abuse and preserving integrity of asylum systems. In this respect, the Commission's proposal also takes into account the concerns expressed by Member States regarding repeated and manifestly unfounded applications. In sum, this proposal aims to lay down the necessary conditions for making asylum procedures in the Community accessible, efficient, fair and context sensitive.
Contents
- Legal Elements of the Proposal
- 1.1. Grounds for and objectives of the proposal
- 1.2. General context
- 1.3. Consistency with other policies and objectives of the Union
- Consultation of Interested Parties
- 3.1. Summary of the proposed action
- 1. Consistency between different asylum instruments
- 2. Access to procedures
- 3. Procedural guarantees in procedures at first instance
- 4. Procedural notions and devices
- 5. Access to effective remedy
- 3.2. Legal Basis
- 3.3. Subsidiarity Principle
- 3.4. Proportionality Principle
- 3.5. Impact on fundamental rights
- ê 2005/85/EC
The main objective of this proposal is to ensure higher and more coherent standards on procedures for granting and withdrawing international protection that would guarantee an adequate examination of the protection needs of third country nationals or stateless persons in line with international and Community obligations of Member States.
The proposal aims at improving both the efficiency and the quality of decision making by “frontloading" services, advice and expertise and encouraging MS to deliver, within a reasonable time, robust determinations at first instance . The improved efficiency and quality of the asylum process should (a) enable MS to quicker distinguish between asylum seekers and other migrants in mixed arrivals, thus optimising labour and administrative resources needed to establish and complete applicable procedures (return, asylum, humanitarian status, extradition etc.); (b) allow the asylum authorities to take robust decisions, based on complete and properly established factual circumstances of the claim, improve the defendability of negative decisions and reduce risk of their annulment by appeal bodies; (c) enable the asylum personnel to better identify cases of unfounded and abusive applications, including those based on false identity or nationality ; (d) reduce MS' reception costs and support their efforts to remove failed asylum seekers from the territory since quality determinations will be delivered quicker and more cases will result in a final decision already in the first instance. Genuine refugees and persons in need of subsidiary protection would enjoy quicker access to entitlements set out in the Qualification Directive.
The proposal further aims at simplifying and consolidating procedural notions and devices and improving coherence between asylum instruments. This should inter alia limit the phenomenon of secondary movements of asylum seekers amongst Member States, to the degree that such movements are generated from divergent procedural arrangements.
In this respect the proposal addresses the following issues:
With a view to facilitating consistent application of the asylum acquis and simplifying applicable arrangements , the proposal provides for a single procedure, thus making it clear that applications should be considered in the light of both forms of international protection set out in the Qualification Directive. It further specifies the rules applicable in the single procedure, such as a mandatory sequence of an examination of the protection needs in relation to refugee status and subsidiary protection status, and extends the present rules on the withdrawal of refugee status to cases of the withdrawal of subsidiary protection. These modifications reflect a long standing objective of the Commission policy on asylum i and aim at ensuring consistency with the Qualification Directive. Moreover, with a view to clarifying the scope of the directive ratione materiae , the proposal makes it clear that the procedural principles and guarantees set out in the Asylum Procedures Directive apply to applicants who are the subject to procedures pursuant to the Dublin Regulation i in the second Member States, and underlines that the notion of implicit withdrawal of applications should not be an obstacle for applicants to re-access asylum procedures in the responsible Member State.
The proposal provides for a number of guarantees aimed at enhancing access to asylum procedures. First, it explicitly includes territorial waters in the scope of the Directive and specifies the obligations of border guards, police and personnel of detention facilities. It also provides for a time limit for completing formalities related to the lodging of an application and introduces guarantees aimed at enabling de facto asylum seekers to articulate their request for protection when they are present at the border crossing points or pre-removal detention facilities. These include access to information on procedures to be followed in order to apply for international protection, access to organisations providing legal advice and counselling to asylum seekers, and arrangements aimed at ensuring the communication between the competent authorities and the person concerned.
The proposal aims to increase the overall level of fairness in asylum procedures, thus leading to more consistent application of agreed procedural principles and guarantees. The proposed amendments are, to a large extent, informed by evolving case law of the European Court of Justice regarding the general principles of Community Law, such as the right to defence, the principle of equality of arms, and the right to effective judicial protection. The jurisprudence of the European Court of Human Rights was another key source of inspiration for developing further procedural safeguards for asylum applicants. In this respect, the proposal essentially aims to provide an applicant with an adequate and realistic opportunity to support his/her claim for international protection, and to ensure a meaningful assessment of the protection needs of the applicant by the competent authorities. In view of the above, the proposed amendments:
(a) reduce exceptions to the procedural principles and guarantees set out in the present Directive. In particular, the proposal deletes the possibility to omit a personal interview in accelerated procedures;
(b) provide for additional guarantees, such as the right to free legal assistance for applicants for international protection in procedures at first instance;
(c) introduce special guarantees for vulnerable asylum applicants. These inter alia include rules dealing with medico-legal reports, exemption of certain categories of applicants from accelerated or border procedures and procedural arrangements aimed at establishing the elements of the application in cases involving gender and/or age based persecution.
The envisaged measures would inter alia contribute to preventing abuse of procedures by improving applicants' awareness of applicable requirements leading inter alia to better compliance with procedural obligations. They would also support efforts of asylum authorities to take defendable and robust decisions, based on complete and properly established factual circumstances of the claim.
With a view to achieving the objective of a common asylum procedure, the proposal aims at consolidating the key procedural notions and devices and defining better their functional role in asylum procedures. This primarily concerns the inadmissibility grounds, including the safe third country notion, accelerated procedures and manifestly unfounded applications, the notion of subsequent applications, and the safe country of origin concept. The directive's notions and devices should become more consistent and simplified , while providing asylum authorities with necessary procedural tools to prevent / respond to abuse and process quickly clearly unfounded or less complex applications.
With respect to the inadmissibility decisions, the proposal makes it clear that the applicant concerned should be able to make his/her views with regard to the application of the inadmissibility grounds known to the authorities before a decision to consider an application inadmissible has been taken. The proposal further deletes the European safe third country notion and incorporates the grounds of subsidiary protection in the list of material requirements for the application of the safe third country notion.
The proposal also revises the present arrangements for accelerated procedures providing for a limited and exhaustive list of grounds for an accelerated examination of manifestly unfounded applications and underlines that the determining authority should be given sufficient time to carry out a rigorous examination of an application in such cases. At the same time, the proposal preserves and further develops the Directive's provisions safeguarding the integrity of procedures, in particular as concerns the processing of abusive or fraudulent claims. In this respect, the amendments introduce an obligation for applicants to cooperate with the competent authorities in establishing their identity and other elements of the application. This provision should operate in conjunction with the current standards which allow MS to consider applications, based on false information or documents with respect to applicant's identity or nationality, as manifestly unfounded and to accelerate their examination.
The envisaged measures on quality decision making, including arrangements on personal interviews, expert advice and training, should further enhance the preparedness of the asylum personnel to identify timely fraudulent or abusive cases. These measures are further strengthened by underlining the principle of a single determining authority. The latter amendment accommodates institutional arrangements of the majority of MS and is indispensible with a view to ensuring the availability of institutional expertise and delivering robust determinations, based on complete and accurately established factual circumstances. This would also contribute to consolidating the asylum process and improving the quality of first instance examinations, thus discouraging abuse of procedures.
It is also proposed to streamline the asylum process by introducing time limits for procedures at first instance. The envisaged general 6 month time limit accommodates legislative amendments and/or practices of the majority of Member States, consulted in the process of preparing the amendments i. It is instrumental in improving the efficiency of examinations, reducing reception costs, facilitating removal of failed asylum seekers and ensuring quicker access to protection for genuine refugees and persons in need of subsidiary protection. The amendments also provide for the possibility of extending the time limit for 6 more months in individual cases. In order to give MS sufficient time to adapt and re-organise their national procedures in line with the proposed time limits, the proposal provides for the postponement of the transposition deadline with regard to these amendments for 3 years.
Furthermore, the proposal aims to reconsider certain elements of the safe country of origin concept by deleting the notion of a minimum common list of safe countries of origin and consolidating the common objective criteria for the national designation of third countries as safe countries of origin. The proposed amendments should lead to more consistent application of the safe country of origin notion, based on common material requirements, regular reviews of the situation in countries designated as safe and procedural guarantees equally applied in all MS opted for this device. The European safe third country concept is also re-visited to the extent that the common list is no longer foreseen. In order to reduce the root causes of repeated applications, the proposal makes it clear that the applicant and the determining authority should take all necessary efforts to establish and assess the elements of the initial application in line with the cooperative requirement set out in Article 4 i of the Qualification Directive. The proposal further consolidates the Directive's provisions dealing with subsequent applications with a view to enabling Member States to subject a subsequent application to an admissibility test in line with the res judicata principle and to derogate from the right to remain in the territory in cases of multiple subsequent applications thus preventing abuse of asylum procedures.
The proposal facilitates access to effective remedy for asylum applicants in line with Community and international obligations of Member States. In this respect, the proposal is largely informed by ongoing developments in respective case law of the ECJ and the ECtHR. Firstly, the proposal provides for a full and ex nunc review of first instance decisions by a court or tribunal and specifies that the notion of effective remedy requires a review of both facts and points of law. Furthermore, the proposal aims at bringing the appeal proceedings pursuant to the Directive in line with the 'equality of arms' principle and, subject to limited exceptions, provides for automatic suspensive effect of appeals against first instance decisions on applications for international protection.
This proposal amends Directive 2005/85/EC and uses the same legal base as that act, namely point (1)(d) of the first paragraph of Article 63 of the EC Treaty. The amendments dealing with procedural standards relating to subsidiary protection status are based on point (2)(a) of the first paragraph of Article 63 of the EC Treaty.
Article 1 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, states that Ireland and the UK may ‘opt in’ to measures establishing a Common European Asylum System. In accordance with Article 3 of this Protocol, the United Kingdom and Ireland had given notice of their wish to take part in the adoption and application of the current Directive. However, the position of these Member States with regard to the current directive does not affect their possible participation with regard to the new directive.
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 is not bound by the directive nor is subject to its application.
Title IV of the EC Treaty ('TEC') on visas, asylum, immigration and other policies related to free movement of persons confers certain powers on these matters to the European Community. These powers must be exercised in accordance with Article 5 TEC, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
The current legal base for Community action is established in Article 63 i TEC. This provision states that the Council is to adopt “measures on asylum, in accordance with the Geneva Convention relating to the Status of Refugees of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties” in areas such as minimum standards on procedures in Member States for granting or withdrawing refugee status and minimum standards for giving protection to persons who otherwise need international protection.
Due to the transnational nature of the problems related to asylum and refugee protection, the EU is well placed to propose solutions in the framework of the CEAS, in particular with regard to issues concerning procedures for granting and withdrawing international protection. Although an important level of harmonization was reached by the adoption of the directive in 2005, further EU action is necessary in order to attain higher and more harmonised standards on asylum procedures and to take further steps towards a common asylum procedure, the long term goal identified in Tampere. These standards are also considered indispensible with a view to ensuring that asylum seekers who are the subject to the Dublin procedures have their applications examined under equivalent conditions in different Member States.
The impact assessment on the amendment of the Asylum Procedures Directive assessed each option with regard to the problems identified so as to represent an ideal proportion between practical value and efforts needed and concluded that opting for EU action does not go beyond what is necessary to achieve the objective of solving those problems.
This proposal was subject to an in-depth scrutiny with a view to ensuring that its provisions are fully compatible with:
- fundamental rights flowing from general principles of Community law, which, themselves, are the result of constitutional traditions common to the Member States and the ECHR, as enshrined, moreover, in the EU Charter, and
- obligations stemming from international law, in particular from the Geneva Convention, the European Convention on Human Rights, and from the UN Convention on the Rights of the Child.
Ensuring higher standards on asylum procedures as well as their consistent application across the EU will have an overall positive impact for asylum seekers from a fundamental rights point of view. In particular, the proposal will reduce room for administrative error in asylum procedures thus ensuring better respect for the principle of non-refoulement and improving access to protection and justice. It will also enhance gender equality and promote the best interests of the child principle in national asylum procedures.
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