Explanatory Memorandum to COM(2016)467 - Common procedure for international protection in the Union - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)467 - Common procedure for international protection in the Union. |
|---|---|
| source | COM(2016)467  |
| date | 13-07-2016 |
1. CONTEXT OF THE PROPOSAL
• Context and reasons for the proposal
The European Union is working towards an integrated, sustainable and holistic EU migration policy based on solidarity and fair sharing of responsibilities and which can function effectively both in times of calm and crisis. Since the adoption of the European Agenda on Migration, 1 the European Commission has been working to implement measures to address both the immediate and the long-term challenges of managing migration flows effectively and comprehensively.
The Common European Asylum System is based on rules determining the Member State responsible for applicants for international protection (including an asylum fingerprint database), common standards for asylum procedures, reception conditions, recognition and protection of beneficiaries of international protection. In addition, a European Asylum Support Office supports Member States in the implementation of the Common European Asylum System.
Notwithstanding the significant progress that has been made in the development of the Common European Asylum System, there are still notable differences between the Member States in the types of procedures used, the reception conditions provided to applicants, the recognition rates and the type of protection granted to beneficiaries of international protection. These divergences contribute to secondary movements and asylum shopping, create pull factors and ultimately lead to an uneven distribution among the Member States of the responsibility to offer protection to those in need.
Recent large scale arrivals have shown that Europe needs an effective and efficient asylum system able to assure a fair and sustainable sharing of responsibility between Member States, to provide sufficient and decent reception conditions throughout the EU, to process quickly and effectively asylum claims lodged in the EU, and to ensure the quality of the decisions made so that those who are in need of international protection effectively obtain it. At the same time, the EU needs to address irregular and dangerous movements and to put an end to the business model of smugglers. To this end asylum applications of those who are not entitled to international protection must, on the one hand, be dealt with quickly and these migrants must then be returned quickly. On the other hand, safe and legal ways to the EU for those from third countries who need protection need to be opened. It is also part of a wider partnership with priority countries of origin and transit.
On 6 April 2016, the Commission set out its priorities for a structural reform of the European asylum and migration framework in its Communication Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe, 2 outlining the different steps to be taken towards a more humane, fair and efficient European asylum policy as well as a better managed legal migration policy.
On 4 May 2016, the Commission presented a first set of proposals to reform the Common European Asylum System delivering on three priorities identified in its Communication: establishing a sustainable and fair Dublin system for determining the Member State responsible for examining asylum applications, 3 reinforcing the Eurodac system to better monitor secondary movements and facilitate the fight against irregular migration 4 and establishing a genuine European Agency for Asylum to ensure the well-functioning of the European asylum system. 5 These proposals were the first building blocks to reform the structure of the Common European Asylum System.
With the second package, the Commission is completing the reform of the Common European Asylum System by adopting four additional proposals: a proposal replacing the Asylum Procedures Directive with a Regulation, 6 harmonising the current disparate procedural arrangements in all Member States and creating a genuine common procedure; a proposal replacing the Qualification Directive 7 with a Regulation, 8 setting uniform standards for the recognition of persons in need of protection and the rights granted to beneficiaries of international protection as well as a proposal revising the Reception Conditions Directive 9 to further harmonise reception conditions in the EU, increase applicants' integration prospects and decrease secondary movements. Finally, following-up on the commitment to enhance legal avenues to the EU as announced on 6 April 2016, the Commission is also proposing a structured Union resettlement framework, moving towards a more managed approach to international protection within the EU, ensuring orderly and safe pathways to the EU for persons in need of international protection, with the aim of progressively reducing the incentives for irregular arrivals. 10
These proposals are an indispensable part of the comprehensive reform of the Common European Asylum System and are closely interlinked. With this second stage of legislative proposals reforming the asylum acquis, all the elements of a solid, coherent and integrated Common European Asylum System, based on common, harmonised rules that are both effective and protective, fully in line with the Geneva Convention, are now on the table.
The Common European Asylum System that we are further developing is both effective and protective and is designed to ensure full convergence between the national asylum systems, decreasing incentives for secondary movements, strengthening mutual trust between Member States and leading overall to a well-functioning Dublin system.
It guarantees that, wherever they are in the EU, asylum seekers are treated in an equal and appropriate manner. It provides for the tools needed to ensure quick identification of persons in genuine need of international protection and return of those who do not have protection needs. It is generous to the most vulnerable and strict towards potential abuse, while always respecting fundamental rights. The common system is finally cost-effective and flexible enough to adapt to the complex challenges Member States have in this area.
• Objectives of this proposal
The aim of this proposal is to establish a truly common procedure for international protection which is efficient, fair and balanced. By choosing the form of a Regulation, which is directly applicable in all Member States, and by removing elements of discretion as well as simplifying, streamlining and consolidating procedural arrangements, the proposal aims at achieving a higher degree of harmonisation and greater uniformity in the outcome of asylum procedures across all Member States, thereby removing incentives for asylum shopping and secondary movements between Member States.
The proposal promotes the objective of ensuring fast but high quality decision making at all stages of the procedure. It requires Member States to invest in their asylum systems as from the administrative stages of the procedure, providing competent authorities with the necessary means for taking quick but solid decisions, so that persons who are in need of protection get their status recognised quickly while swiftly returning those not in need of protection. A rapid and effective decision making process is in the interest of both the applicants, enabling them to get clarity on their legal status, and of the Member States leading to savings in reception and administrative costs.
– Simpler, clearer and shorter procedures which replace the current disparate procedural arrangements in the Member States. This proposal provides for short but reasonable time-limits for an applicant to accede to the procedure and for concluding the examination of applications both at the administrative and the appeal stages. The six-month benchmark for a first decision is maintained, while significantly shorter time-limits are foreseen for dealing with manifestly unfounded and inadmissible claims. Member States also have possibility to prioritise and examine quickly any application. Time-limits for registering, lodging and examining applications are set up but may be exceptionally extended when Member States receive a disproportionate number of simultaneous applications. To plan for such eventualities, Member States should rather regularly review and anticipate their needs to ensure that they have adequate resources in place to manage their asylum system efficiently. Where necessary, Member States may also rely on the assistance of the European Union Agency for Asylum. In addition, the use of the admissibility procedure and the accelerated examination procedure becomes mandatory and the provisions on subsequent applications are clarified allowing for exceptions from the right to remain at the end of or during the administrative procedure.
– Procedural guarantees safeguarding the rights of the applicants to ensure that asylum claims are adequately assessed within the framework of a streamlined and shorter procedure. This is ensured by informing all applicants, at the start of the procedure, of their rights, obligations and consequences of not complying with their obligations. The applicants need to be given an effective opportunity to cooperate and properly communicate with the responsible authorities so as to present all facts at their disposal to substantiate their claim. This proposal provides applicants with adequate procedural guarantees to pursue their case throughout all stages of the procedure, in particular the right to be heard in a personal interview, interpretation as well as free legal assistance and representation. Furthermore, as a rule, they enjoy a right to remain pending the outcome of the procedure. The applicants have the right to appropriate notification of a decision, the reasons for that decision in fact and in law and, in the case of a negative decision, they have the right to an effective remedy before a court or a tribunal. Reinforced safeguards are foreseen for applicants with special procedural needs and unaccompanied minors, such as more detailed rules on assessing, documenting and addressing the applicant's special procedural needs.
– Stricter rules to prevent abuse of the system, sanction manifestly abusive claims and remove incentives for secondary movements by setting out clear obligations for applicants to cooperate with the authorities throughout the procedure and by attaching strict consequences to non-compliance with obligations. In this respect, the examination of an application for international protection is made conditional upon lodging an application, fingerprinting, providing the necessary details for the examination of the application as well as presence and stay in the Member State responsible. Failure to comply with any of these obligations may lead to an application being rejected as abandoned in accordance with the procedure for implicit withdrawal.
The current optional procedural instruments for sanctioning abusive behaviour of applicants, secondary movements and manifestly unfounded claims are made compulsory and further reinforced. In particular, the proposal provides for clear, exhaustive and compulsory lists of grounds where an examination must be accelerated and where applications must be rejected as manifestly unfounded or as abandoned. Moreover, the ability to respond to subsequent applications abusing the asylum procedure has been reinforced, in particular by enabling the removal of such applicants from Member States' territories before and after an administrative decision is taken on their applications. At the same time, all guarantees are in place, including the right to an effective remedy, to ensure that the rights of applicants are always guaranteed.
– Harmonised rules on safe countries are a critical aspect of an efficient common procedure and this proposal provides for the harmonisation of procedural consequences of applying safe country concepts. Where applicants are manifestly not in need of international protection because they come from a safe country of origin, their applications must be quickly rejected and a swift return organised. Where applicants have already found a first country of asylum where they enjoy protection or where their applications can be examined by a safe third country, applications must be declared inadmissible. The Commission proposes to progressively move towards full harmonisation in this area, and to replace national safe country lists with European lists or designations at Union level within five years of entry into force of the Regulation.
• Consistency with existing policy provisions in the policy area
This proposal is fully consistent with the first proposals to reform the Common European Asylum System presented on 4 May 2016 concerning the Dublin Regulation, the Eurodac system and the European Union Agency for Asylum, as well as with proposals for reforming a Qualification Regulation and a recast Reception Conditions Directives and a proposal for a structured Union resettlement system.
As regards the proposal for a recast of the Dublin Regulation, this proposal applies to applicants undergoing a Dublin procedure. In particular, this proposal is coherent with the rules set out in the proposal for the recast of the Dublin Regulation, while further specifying them, such as the admissibility examination of an application, the accelerated examination procedure, subsequent applications, and guarantees for minors and special guarantees for unaccompanied minors. This proposal is also aligned to the recast of the Eurodac Regulation as regards the taking of fingerprints and facial images of applicants and their relevance for applications for international protection.
As regards the proposal on the European Union Agency for Asylum, this proposal recalls the importance of the operational and technical support that can be offered by the Agency to the Member States to ensure the efficient management of applications for international protection, as well as the provision of capacity building by the Agency in accordance with the new proposed mandate for the Agency.
As regards the proposal for the Qualification Regulation, the two proposals are complementary to one another in so far as the proposal for the Qualification Regulation establishes the standards for the qualification of the third-country nationals or stateless persons as beneficiaries of international protection while this proposal establishes common procedural rules for granting and withdrawing international protection.
This proposal is also linked closely to the proposal for a recast of the Reception Conditions Directive. In order to ensure a timely and effective assessment of applications for international protection, it is necessary for applicants to comply with their reporting obligations as set out in the proposal for a recast of the Reception Conditions Directive and this proposal sets out the procedural consequences for those applicants who do not comply with those reporting obligations.
• Consistency with other Union policies
This proposal is consistent with the comprehensive long-term policy on better migration management as set out by the Commission in the European Agenda on Migration, 11 which developed President Juncker's Political Guidelines into a set of coherent and mutually reinforcing initiatives based on four pillars. Those pillars consist of reducing the incentive for irregular migration, securing external borders and saving lives, a strong asylum policy and a new policy on legal migration. This proposal, which further implements the European Agenda on Migration as regards the objective of strengthening the Union's asylum policy should be seen as part of the broader policy at EU level towards building a robust and effective system for sustainable migration management for the future that is fair for host societies and EU citizens as well as for the third country nationals concerned and countries of origin and transit.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for the proposal is Article 78(2)(d) of the Treaty on the Functioning of the European Union, which foresees the adoption of measures for common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status.
• Subsidiarity
The objective of this proposal is to establish a common procedure for granting and withdrawing international protection which replaces the various asylum procedures in the Member States ensuring the timeliness and effectiveness of the procedure. Applications made by the third-country nationals and stateless persons for international protection should be examined in a procedure which is governed by the same rules, regardless of the Member State where the application is lodged to ensure equity in the treatment of applications for international protection, clarity and legal certainty for the individual applicant. Furthermore, Member States cannot individually establish common rules which will reduce incentives for asylum shopping and secondary movements between Member States. Therefore, action by the Union is required.
This objective cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Union level. Therefore, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
• Proportionality
In accordance with the principle of proportionality, as set out in Article 5 of the Treaty on European Union, this Regulation does not go beyond what is necessary in order to achieve its objectives.
As regards the establishment of a common procedure for granting and withdrawing international protection, all elements of the proposal are limited to what is necessary to set up and enable such a common procedure, to streamline and simplify it, to ensure equality of treatment in terms of rights and guarantees for applicants and avoid discrepancies in national procedures which have the undesired consequence of encouraging secondary movements.
The introduction of the time limits at all stages of the procedure, including at the appeal stage, and the tightening of the time limit for the administrative stage of the procedure, are necessary changes in order to streamline the procedures and enhance their effectiveness. The time limits proposed for the stage of appeal allow for all pertinent procedural safeguards to be respected, including the right to an oral hearing and respect of the equality of arms. In proposing these time-limits, the Commission endeavoured to strike a balance between the right of applicants to have their case adjudicated within a reasonable time and their right to effective remedy and defence, including through the provision of free legal assistance and representation.
• Choice of the instrument
This is a proposal for a regulation which is intended to repeal and replace a directive. The degree of harmonisation of national procedures for granting and withdrawing international protection that was achieved through Directive 2013/32/EU has not proven to be sufficient to address differences in the types of procedure used, the time-limits for the procedures, the rights and procedural guarantees for the applicant, the recognition rates and the type of protection granted. It is only a Regulation establishing a common asylum procedure in the Union, and whose provisions shall be directly applicable, that can provide the necessary degree of uniformity and effectiveness needed in the application of procedural rules in Union law on asylum.
3. CONSULTATION WITH INTERESTED PARTIES
• Stakeholder consultations
In preparation of this second package of proposals, the Commission held targeted consultations with the Member States, the United Nations High Commissioner for Refugees and civil society which were guided by the objectives for the Common European Asylum System reform that were set out in the Commission Communication of 6 April 2016. The Commission has carefully assessed the arguments brought forward and sought to reflect those that are more largely shared by all parties concerned in this proposal. In June 2016, an informal exchange of views was held with the European Parliament on the second package of proposals.
– The choice of instrument by the Commission to replace the current Directive with a Regulation was received positively by most Member States except for some that expressed concern over compatibility with their national administrative legal system. Some have consistently held, since the debate on the proposal for the Asylum Procedures Directive, that a Regulation laying out provisions which are directly applicable is the most effective legal instrument for securing the rights of applicants and equality of treatment across the Member States. However, some stakeholders warned against the risk of lowering protection standards to reach a common denominator, especially as the Union is a principal model to look up to in this area of international refugee law.
– Most Member States recognised the need for simplification and clarification of the current procedural rules, and expressed support for the further harmonisation of asylum procedures across the Union. Member States acknowledged the need to clarify and simplify the grounds for admissibility, the use of border and accelerated procedures, and the treatment of subsequent applications.
There was general support among Member States for the introduction of maximum time-limits at the different stages of the procedure, including at the appeal stage. Most Member States were satisfied with the current timeline for the normal administrative procedure, but acknowledged the need to establish tighter deadlines and streamline procedures. However, several Member States pointed out the need for a measure of flexibility to be able to deal with situations of large influx of migrants and a disproportionate number of simultaneous applications. Member States generally supported the introduction of mandatory time-limits for the appeal stage but called for differentiated time-limits depending on whether appeals are brought against decisions taken in normal procedures or in fast-track procedures.
Most stakeholders from civil society called for simplification of the current procedural rules. However, they were more sceptical about the effectiveness of compulsory time-limits for the various stages of the procedure. Further concerns were expressed about how to ensure that the proposed time limits are compatible with the effective exercise of procedural guarantees.
– The accelerated examination procedure, the border procedure and the admissibility procedure are considered by most Member States as necessary tools to deal more efficiently with the examination of applications that are clearly fraudulent, manifestly unfounded or inadmissible. Differing views were expressed on rendering mandatory the use of the concepts of first country of asylum and safe third country for rejecting applications as inadmissible, and to render mandatory the use of the accelerated examination procedure and border procedure. Most Member States perceive the need for measures aimed to render the system more effective, and are in favour of establishing EU common lists of safe countries of origin and safe third countries, while expressing a preference to also maintain the possibility to have national lists.
Several stakeholders observed that rendering mandatory the application of the concepts of first country of asylum and safe third country for determining whether applications are admissible, coupled with the introduction of common EU lists of safe third countries, may not be sufficient in order to bring about the desired harmonisation as long as there would still be room for discretion in the application of the concepts to individual cases. Some stakeholders expressed concerns about the possible coexistence of EU and national lists of safe countries of origin, and flagged that the inclusion or exclusion of a country from an EU common list of safe countries of origin would only be reviewable by the European Court of Justice.
Most representatives of civil society cautioned against the mandatory use of concepts first country of asylum and safe third country, and of special procedures in general. Some consider that only applications which are prima facie manifestly unfounded or clearly abusive should be subject to accelerated procedures.
In this context, several stakeholders argued that vulnerable applicants, and in particular unaccompanied minors, should be exempted from the application of special procedures. Some of the consulted parties pleaded for stronger guarantees for unaccompanied minors, especially in relation to the prompt appointment of qualified guardians.
– Member States considered it necessary to include in the procedure measures intended to discourage unjustified and secondary movements. Most Member States consider that the proposal should also establish clear responsibilities for the applicants for international protection, and in particular the obligation to cooperate with the authorities at all stages of the procedure and to provide the information that is necessary in order to examine the applications. The applicants should also respect the obligation not to leave the territory of the Member State examining the application, in line with the provisions of the proposed reform of the Dublin Regulation. Most Member States supported the proposal to examine the applications of persons who abscond without justification in the accelerated procedure, while ensuring full respect of the relevant procedural guarantees.
At the same time, some of the main stakeholders from civil society underlined that procedures should not be applied as sanctions, and do not consider it justified to associate the use of the accelerated procedure with absconding.
• Collection and use of expertise
Data on the implementation of the Asylum Procedures Directive has been partially collected by the European Asylum Support Office, as part of a process which aims at mapping Member States' legislation and practices as regards the implementation of the Common European Asylum System instruments.
In addition, since the adoption of the Asylum Procedures Directive in 2013, the Commission has organised a series of Contact Committee meeting on that directive, during which the issues faced by Member States in view of the implementation of the Directive have been discussed between the Commission and Member States. The findings of both these processes have informed the current proposal.
• Fundamental rights
This proposal respects fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union, as well as the obligations stemming from international law, in particular from the Geneva Convention on the Status of Refugees, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant for Civil and Political Rights, the United Nations Convention against Torture, and the United Nations Convention on the Rights of the Child.
The common procedure for granting and withdrawing international protection shall be carried out in full respect of fundamental rights as enshrined in the Charter, including the right to human dignity (Article 1), prohibition of torture and inhuman or degrading treatment or punishment (Article 4), the right to the protection of personal data (Article 8), the right to asylum (Article 18), the protection from refoulement (Article 19), non-discrimination (Article 21), equality of rights between men and women (Article 23), the rights of the child (Article 24) and the right to an effective remedy (Article 47). This proposal fully takes into account the rights of the child and the special needs of vulnerable persons.
The proposal guarantees that the special needs of minors, in particular unaccompanied minors, are properly addressed by ensuring that they are guided and supported throughout all stages of the procedure. The proposal also takes into account Member States' obligations under the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). In light of the Commission's proposals for Council decisions for the signing and conclusion of the Istanbul Convention, and in view of guaranteeing women in need of international protection who have been subject to gender-based violence with a suitable level of protection, a gender-sensitive approach should be adopted when interpreting and applying this Regulation.
The proposal permits the storage of data collected upon the registration and lodging of an application for international protection, which includes personal details and elements relevant to the application, as well as during the personal interview, including the recording or transcript of the interview. In order to ensure that personal data of applicants are stored only for as long as necessary, the proposal guarantees the right to the protection of personal data by establishing a maximum storage period for those data. Having regard to the fact that those data form an integral part of the applicant's file, the maximum storage period that is considered to be necessary is ten years from a final decision. That storage period is considered to be necessary in the case where international protection is not granted since third-country nationals or stateless persons may try to request international protection in another Member State or submit further subsequent applications in the same or another Member State for years to come. That same storage period is necessary with regard to those who are granted international protection to be able to review their status, in particular in the framework of the regular status review set out in the proposal for the Qualification Regulation, and it is also necessary in view of the take back obligations set out in the proposal for a recast Dublin Regulation with regard to beneficiaries of international protection. After that time, third-country nationals or stateless persons who have stayed in the Union for several years will have obtained a settled status or even citizenship of a Member State. Data relating to a person who has acquired citizenship of any Member State before the expiry of the period of ten years should be erased immediately. In Eurodac, those data shall be erased from the Central System as soon as the Member State of origin becomes aware that the person concerned has acquired such citizenship because the individual is no longer within the scope of Eurodac.
4. BUDGETARY IMPLICATIONS
This proposal does not impose any financial or administrative burden on the Union. Therefore it has no impact on the Union budget.
5. OTHER ELEMENTS
• Monitoring, evaluation and reporting arrangements
The Commission shall report on the application of this Regulation to the European Parliament and to the Council within two years from its entry into force and every five years after that. Member States shall be required to send relevant information for drafting that report to the Commission and to the European Union Agency for Asylum. The Agency will also be monitoring compliance with this Regulation by Member States through the monitoring mechanism which the Commission proposed to establish in its revision of the mandate of the Agency. 12
• Detailed explanation of the specific provisions of the proposal
The aim of this proposal is to ensure fast and efficient treatment of applications for international protection by establishing a common procedure for granting and withdrawing international protection, which replaces the various procedures in the Member States, and which is applicable to all applications for international protection made in Member States.
This proposal clarifies and streamlines procedural rules and provides national authorities with the necessary tools to examine and decide upon applications in an efficient manner, and to fight against abuses and secondary movements within the EU, whilst enhancing the necessary procedural guarantees for the individual applicant, thereby rendering the procedure swifter and more effective.
• Streamlining and simplifying the procedure for international protection
The proposal streamlines and simplifies the procedure by clarifying the various steps as regards access to the procedure. An application is considered to have been made as soon as a third-country national or stateless person expresses a wish to receive international protection from a Member State (Article 25(1)). That application needs to be registered promptly, or at the latest within three working days from when the national authorities receive it (Article 27(1)). That time-limit remains unchanged when compared to the Asylum Procedures Directive. The individual applicant is then to be provided with an effective opportunity to lodge his or her application and this should be done within ten working days from when the application is registered (Article 28(1)). For unaccompanied minors, that time limit will only start from when the guardian is appointed and meets the child (Article 32(2)). The time-limit for lodging an application is new compared to the Asylum Procedures Directive.
Member States should regularly review and anticipate their needs with a view to ensuring that they have in place adequate resources to be able to manage their asylum system efficiently, including by preparing contingency plans where necessary. The European Union Agency for Asylum is able to provide Member States with the necessary operational and technical assistance to enable them to respect the set time-limits. Where Member States foresee that they would not be able to meet those time-limits, they should request assistance from the European Union Agency for Asylum based on the provisions of the new proposed mandate for the Agency. Where no such request is made, and because of the disproportionate pressure the asylum system in a Member State becomes ineffective to the extent of jeopardising the functioning of the Common European Asylum System, the Agency may, based on an implementing decision of the Commission, take measures in support of that Member State.
The proposal provides for streamlining time-limits for the administrative procedure. Until now, although established in the Asylum Procedures Directive, time-limits vary considerably among Member States and between April 2015 and April 2016, on average 50% of cases in the European Union have been pending for more than six months. The time-limit for the examination of applications under a regular procedure provided for in the proposal is of six months, extendable once by a further period of three months in cases of disproportionate pressure or due to the complexity of a case (Article 34(2) and (3)). As in the Asylum Procedures Directive, the possibility of temporarily suspending the examination of an application due to a change in circumstances in the country of origin remains. However, also in this case, the time-limit for examining an application should not be longer than 15 months (Article 34(5)).
New time-limits are set for the accelerated examination procedure (Article 40(2)) and for the treatment of inadmissible applications (Article 34(1)). Currently no time-limits for these procedures are provided for in the Asylum Procedures Directive with the consequence that time-limits in the Member States vary considerably and range from a few days to a few months. These procedures should be expedient and for this reason the time-limit proposed for an accelerated examination procedure is of two months whereas that for inadmissibility cases is of one month. In cases where the ground for inadmissibility is the fact that an applicant comes from a first country of asylum or a safe-third country, the time-limit for the admissibility check is set at ten working days to make sure that the rules set out in the proposed Dublin reform requiring the first Member State in which an application is lodged to examine the admissibility before applying the criteria for determining a Member State responsible, are applied efficiently (second paragraph of Article 34(1)). The time-limit for the border procedure remains set at four weeks as in the Asylum Procedures Directive (Article 41(2)).
The proposal addresses the overall procedure for international protection, and for this reason it sets out time-limits also for lodging appeals and for decisions at the first appeal stage. This is necessary to ensure equity and effectiveness in the procedure and to meet the overall objective of greater harmonisation in the procedure (Article 55).
The Commission recognises that at times it may be difficult for Member States to respect the time-limits set out in this proposal. However, the need for an individual applicant to have legal certainty as regards his or her situation is of primary concern. In making its proposal, the Commission also took into account its proposal to significantly strengthen the mandate of the European Union Agency for Asylum and on the possibility for Member States to rely on operational and technical assistance from the Agency, other Member States or international organisations.
• Rights and obligations of applicants
The proposal contains clear provisions on the rights and obligations of the applicants for the purposes of the procedure for international protection. It provides for the necessary guarantees for the individual applicant to effectively enjoy his or her rights while at the same time providing for a number of obligations for the applicant in an effort to responsibilise the applicant throughout the procedure (Article 7).
In accordance with the Commission's proposal to reform the Dublin Regulation, applicants must make their application in the Member State of first entry or where he or she is legally present in a Member State (Article 7(1)). Applicants are required to cooperate with the responsible authorities for them to be able to establish their identity, including by providing their fingerprints and facial image. Applicants must also bring forward all elements at their disposal which are necessary for the examination of the application (Article 7(2)). The applicant needs to inform the responsible authorities of his or place of residence and telephone number so that he or she can be reached for the purposes of the procedure (Article 7(4)).
Applicants must be informed of the procedure to be followed, their rights and obligations during the procedure, the consequences of not complying with their obligations, the outcome of the examination and the possibility of challenging a negative decision (Article 8(2)). The obligation on Member States to provide the applicant with all the necessary information becomes all the more important because of the consequences that non-compliance may carry for the applicant. For instance, in case that an applicant refuses to cooperate by not providing the details necessary for the examination of the application and by not providing his or her fingerprints and facial image may lead to the application being rejected as abandoned subject to the procedure for implicit withdrawal of an application (Article 7(3) and Article 39(1)(c)). At present, the refusal to comply with the obligation to provide fingerprints is a ground for an accelerated examination of the procedure. However, considering that this is an important element for the application to be considered complete, more serious consequences have been attached to non-compliance by the applicant.
Applicants must remain in the Member States in which they are required to be present in accordance with the Dublin Regulation (Article 7(5)) and they must respect any reporting obligations they may have deriving from the Receptions Conditions Directive (Article 7(6)). Non-compliance with reporting obligations may also lead to an application being rejected as abandoned (Article 39(1)(f)), and where an applicant does not remain in the Member State where he or she is required to be present, his or her application is dealt with under the accelerated examination procedure (Article 40(1)(g)).
Within three working days from lodging an application, the applicant must be provided with a document certifying that the individual is an applicant, stating that he or she has a right to remain on the territory of the Member State and stating that it is not a valid travel document (Article 29). The main provisions on documents have been taken from the Reception Conditions Directive and incorporated in this proposal as an effort at streamlining the procedure for international protection. The proposal sets out the type of information that should be included in that document and foresees the possibility of having a uniform format for those documents to be established by means of an implementing act so as to ensure that all applicants receive the same document across all Member States (Article 29(5)).
The applicant enjoys the right to remain on the territory of a Member State for the purpose and the duration of the administrative procedure. This right does not constitute an entitlement to residence and it does not give the applicant the right to travel to another Member State without authorisation. As in the Asylum Procedures Directive, the exceptions to the right to remain during the administrative procedure are limited, clearly defined in the proposal and relate to subsequent applications and cases of surrender or extradition to another Member State in accordance with a European Arrest Warrant, to a third country or to an international criminal court or tribunal (Article 9).
• Procedural guarantees
Streamlining the procedure is necessary to ensure the efficiency of the procedure across Member States while at the same time guaranteeing that the individual applicant is given a decision, whether positive or negative, in the shortest time possible. This however should not have the undesired consequence of adversely affecting the right of the individual to have his or her application examined in an adequate and comprehensive manner allowing the applicant to bring forward all elements which are relevant to substantiate his or her application in the course of its examination. It is for this reason that the proposal contains important guarantees for the applicant to ensure that, subject to limited exceptions and at all stages of the procedure, an applicant enjoys the right to be heard through a personal interview, is assisted with the necessary interpretation and is provided with free legal assistance and representation.
The proposal guarantees the right of applicants to be heard through a personal interview on the admissibility or on the merits of their applications, irrespective of the type of administrative procedure applied to their case (Article 12(1)). For the right to a personal interview to be effective, the applicant is to be assisted by an interpreter (Article 12(8)) and given the opportunity to provide his or explanations concerning the grounds for his or her application in a comprehensive manner. It is important that the applicant be given sufficient time to prepare and consult with his or her legal adviser or counsellor, and he or she may be assisted by the legal adviser or counsellor during the interview. In substantive interviews conducted in relation to the examination of the application on the merits, the applicant is given the opportunity to present all elements needed to substantiate his or her claim, and to explain any missing elements or inconsistencies (Article 11(2)). In the context of an admissibility procedure, the applicant has the right to an admissibility interview whereby he or she is given the opportunity to provide adequate reasons as to why his or her application cannot be rejected as inadmissible (Article 10(2)).
The personal interview should be conducted under conditions which ensure appropriate confidentiality (Article 12(2)) and by adequately trained and competent personnel, including where necessary, personnel from authorities of other Member States or experts deployed by the European Union Agency for Asylum (Article 12(3) and (7)). The personal interview may only be omitted when the determining authority is to take a positive decision on the application or is of the opinion that the applicant is unfit or unable to be interviewed owing to circumstances beyond his or her control (Article 12(5)). Given that the personal interview is an essential part of the examination of the application, the interview should be recorded and the applicants and their legal advisers should be given access to the recording, as well as to the report or transcript of the interview before the determining authority takes a decision, or in the case of an accelerated examination procedure, at the same time as the decision is made (Article 13).
Under the Asylum Procedures Directive applicants are entitled to receive free legal and procedural information during the administrative procedure, and they should receive free legal assistance at the stage of the first level of appeal where they do not have the means to pay for such legal assistance themselves. In this proposal, access to legal assistance and representation throughout all stages of the procedure is considered necessary to enable applicants to fully exercise their rights given the tighter time-limits for the procedure. It therefore provides for the right of applicants to request free legal assistance and representation at all stages of the procedure (Article 15(1)), subject to limited exceptions defined in the proposal. Accordingly, Member States may decide not to provide free legal assistance and representation when the applicant has sufficient resources and where the application or appeal are considered as having no tangible prospect of success (Article 15(3)(a) and (b) and (5)(a)(b)). In the administrative procedure, Member States may also decide to exclude free legal assistance and representation in case of subsequent applications (Article 15(3)(c)), and at the appeal stage, they may do so with regard to second level of appeal or higher (Article 15(5)(c)).
The Commission considers it necessary and appropriate to extend this right to the administrative procedure, in recognition of a practice that is already in place in twenty-two of the Member States. This requires that adequate resources are put into the quality of decision-making during the administrative procedure. Nevertheless, the practice of Member States already providing for this possibility shows that the provision of free legal assistance and representation is useful to ensure good quality assistance, leading to better quality administrative decisions with possibly less appeals.
• Unaccompanied minors and applicants in need of special procedural guarantees
The proposal upholds a high level of special procedural guarantees for vulnerable categories of applicants (Article 19), and in particular for unaccompanied minors (Articles 21 and 22). To ensure a fair procedure for these applicants, it is necessary to identify their needs as early as possible in the procedure and to provide them with adequate support and guidance throughout all stages of the procedure (Article 20(1)). Where it is not possible to provide such adequate support in the framework of an accelerated examination procedure or a border procedure, then those procedures should not be applied (Article 19(3)).
As regards children in general, the best interests of the child as a primary consideration is the prevailing principle when applying the common procedure. All children, irrespective of their age and of whether they are accompanied or not, shall also have the right to a personal interview unless it is manifestly not in the child's best interests (Article 21(1) and (2)).
As regards unaccompanied minors, they should be assigned a guardian as soon as possible and not later than five working days from the moment an unaccompanied minor makes an application (Article 22(1)). Disparities among the various guardianship systems for unaccompanied minors in the Member States may lead to procedural safeguards not being adhered to, to minors not receiving adequate care or to them being exposed to risk or precarious situations and possibly leading them to abscond. This proposal, taking into account a study on guardianship of children carried out by the Fundamental Rights Agency, 13 seeks to standardise guardianship practices to make sure that guardianship becomes prompt and effective across the Union.
The role of the guardian is to assist and represent an unaccompanied minor with a view to safeguarding the best interests of the child and his or her general well-being in the procedure for international protection. Where necessary, and possible under national law, the guardian may exercise legal capacity for the minor (Article 4(2)(f)). In order to make sure that unaccompanied minors receive adequate support, the proposal provides that a guardian should not be made responsible for a disproportionate number of minors (first paragraph of Article 22(4)). In view of the tasks and responsibilities of the guardian, including the time-limits for the various procedural steps under this Regulation, it is necessary for the number of cases assigned to each guardian to be reasonable and that the proposal also provides for an appropriate system to be put in place to monitor the performance of each guardian (second paragraph of Article 22(4)).
• Use of accelerated examination procedure and border procedure
In this proposal, the accelerated examination procedure becomes compulsory under certain limited grounds related to prima facie manifestly unfounded claims, such as when the applicant makes clearly inconsistent or false representations, misleads the authorities with false information or when an applicant comes from a safe country of origin. Similarly, an application should be examined under the accelerated examination procedure where it is clearly abusive, such as when the applicant seeks to delay or frustrate the enforcement of a return decision or where he or she had not applied for international protection in the Member State of first irregular entry or in the Member State where he or she is legally present or where an applicant whose application is under examination and who made an application in another Member State or who is on the territory of another Member State without a residence document is taken back in accordance with the new rules proposed by the Commission under the Dublin Regulation without demonstrating that his or her failure was due to circumstances beyond his or her control (Article 40(1)).
Border procedures, which normally imply the use of detention throughout the procedure, remain optional and can be applied for examining admissibility or the merits of applications on the same grounds as under an accelerated examination procedure. If no decision is taken within four weeks, the applicant gains the right to enter and remain on the territory (Article 41).
Having regard to the fact that the accelerated examination procedure now becomes compulsory, that in most cases detention is involved when applying the border procedure, that the duration for both procedures is short and that there is no automatic suspensive effect following a decision taken in any of these procedures, it is necessary for all the procedural guarantees to apply to the individual applicant, in particular the right to be heard in a personal interview, interpretation and free legal assistance and representation (Article 40(1) and (Article 41(1)). The application of these procedures is limited with regard to unaccompanied minors (Article 40(5) and Article 41(5)) and they cannot be applied to applicants in need of special procedural guarantees unless those applicants can be provided with adequate support in the framework of those procedures (Article 19(3)).
• Admissibility of applications
The general rule is that an application for international protection should be examined on its merits to determine whether an applicant qualifies for international protection in accordance with Regulation (EU) No XXX/XXX (Qualification Regulation). 14 There need not be an examination on the merits where an application should be declared as inadmissible in accordance with this proposal.
This proposal provides that where any of the admissibility grounds set out in the proposal is applicable, then the application should be rejected as inadmissible (Article 36(1)), and that examination should not take longer than one month (Article 34(1)). Before determining the Member State responsible in accordance with the new rules proposed by the Commission under the Dublin Regulation, the first Member State in which an application has been lodged should examine the admissibility of that application when a country which is not a Member State is considered as a first country of asylum or safe third country for the applicant. In order to ensure the efficient functioning of the Dublin system, the proposal foresees that the duration of the examination of the grounds relating to first country of asylum or safe third country should not take longer than ten working days (second paragraph of Article 34(1)).
An application should be considered to be inadmissible when it is a subsequent application without new relevant elements or findings or when a separate application by a spouse, partner, or accompanied minor is not considered to be justified (Article 36(1)(c) and (d)).
The grounds relating to first country of asylum and safe third country should not be applied to beneficiaries of subsidiary protection who are resettled in accordance with Regulation (EU) No XXX/XXX (Resettlement Regulation) 15 in case they decide to apply for refugee status once they are on the territory of the Member States.
Those cases which fall under the Dublin Regulation, including where another Member State has granted international protection as provided for in the proposed Dublin reform, should be dealt with under the Dublin system (Article 36(2)).
Where from a prima facie assessment it is clear that an application may be rejected as manifestly unfounded, the application may be rejected on that ground without examining its admissibility.
Having regard to the fact that the duration of the admissibility procedure is very short, and that in certain cases a decision, such as that taken on the ground related to first country of asylum, has no automatic suspensive effect, it is necessary to ensure that the individual applicant enjoys all the procedural guarantees, in particular the right to be heard in a personal interview, interpretation and free legal assistance (Article 36(1)). However, exceptions to these procedural guarantees are made in the case of subsequent applications.
• Treatment of subsequent applications
This proposal clarifies and simplifies the procedure as regards the treatment of subsequent applications, while providing the necessary tools to prevent abuse of using the possibility provided by subsequent applications. A subsequent application is one that is brought by the same applicant in any Member State after a previous application is rejected by means of a final decision (Article 42(1)). A subsequent application is subject to a preliminary examination which will determine whether or not the applicant brings forward relevant new elements or findings which could significantly increase the likelihood for him or her to qualify as a beneficiary of international protection (Article 42(2)). If this is not the case, then the subsequent application is to be dismissed as inadmissible or as manifestly unfounded where the application is so clearly without substance or abusive that it has no tangible prospect of success (Article 42(5)).
This proposal provides that the preliminary examination should be carried out on the basis of written submissions and a personal interview. However, the personal interview may be dispensed with in those instances where, from the written submissions, it is clear that the application does not give rise to relevant new elements or findings or that it is clearly without substance and has no tangible prospect of success (Article 42(3)). Furthermore, an applicant will not enjoy free legal assistance during the preliminary examination phase (Article 15(3)(c)).
In case of subsequent applications, there is no automatic suspensive effect and exceptions may be made to the individual's right to remain on the territory of a Member State when a subsequent application is rejected as inadmissible or manifestly unfounded, or in the case of a second or further subsequent applications, as soon as an application is made in any Member States following a final decision which had rejected a previous subsequent application as inadmissible, unfounded or manifestly unfounded (Article 43). The Commission considers this approach to be justified considering that the individual applicant would have already had his or her application examined under the administrative procedure as well as by a court or tribunal and where the applicant would have enjoyed procedural guarantees including a personal interview, interpretation and free legal assistance and representation.
• Safe country concepts
In its Communication of 6 April 2016, the Commission considered that a critical aspect of a common approach concerns the use of the safe country mechanisms. In particular, the Commission announced that it would harmonise the procedural consequences of the concept and remove the discretion on whether or not to use it.
The use of the concepts of first country of asylum and safe third country enables certain applications to be declared inadmissible where protection could be availed of in a third country (Article 36(1)(a) and (b)). The two concepts may be applied with respect to an applicant following an individual examination which includes an admissibility interview.
This proposal clarifies the two concepts. Both are based on the existence of sufficient protection as defined in the proposal (Article 44 and Article 45). The main difference between the two concepts concerns the individual applicant. Whereas under the concept of first country of asylum, the applicant has enjoyed protection in accordance with the Geneva Convention or sufficient protection in that third country, and can still avail himself or herself of that protection, under the safe third country concept there is the possibility for the applicant to receive protection in accordance with the substantive standards of the Geneva Convention or sufficient protection in accordance with this proposal. This difference is the reason why this proposal, as under the current legislative framework, provides for automatic suspensive effect of appeal with regard to a decision taken based on the ground of safe third country but not on the ground of first country of asylum (Article 53(2)(b)). It is considered that there is a higher risk of a possible violation of Article 3 of the European Convention on Human Rights (ECHR) when applying the concept of safe third country and therefore the suspensive effect of the appeal remains necessary to ensure an effective remedy in accordance with Article 13 of the ECHR.
As regards the concept of safe third country, in its Communication of 10 February 2016, 16 the Commission encouraged all Member States to foresee and require its use in their national legislation. In this proposal, the Commission proposes a harmonised EU approach to its use, in full respect for the international obligations enshrined in the Charter, the ECHR and the Geneva Convention so as to guarantee that it is applied in the same manner in all Member States, and proposes that safe third countries should be designated at Union level through a future amendment of this Regulation based on the conditions set out in this Regulation and after carrying out a detailed, evidence-based assessment involving substantive research and broad consultation with Member States and relevant stakeholders (Article 46). However, the concept of safe third country may also be applied in individual cases directly on the basis of the conditions set out in the regulation.
The use of the safe country of origin concept allows a Member State to examine an application on the basis of a rebuttable presumption that his or her country of origin is safe. The use of this concept enables applications to be dealt with under the accelerated examination procedure (Article 40(1)(e)) and where an application is rejected as manifestly unfounded on this ground, there is no automatic suspensive effect of the appeal (Article 53(2)(a)).
In September 2015, the Commission proposed the adoption of a Regulation establishing an EU common list of safe countries of origin 17 in order to facilitate the swift processing of applications of persons from these countries. 18 The Commission considers that the EU common list of safe countries of origin should be an integral part of this draft Regulation. It is for this reason that this proposal incorporates the Commission's proposal for a Regulation establishing an EU common list of safe countries of origin including the same list of countries based on the same justifications as in that proposal, with slight modifications to the text taking into account ongoing discussions between the co-legislators (Article 48). Once there is agreement between the co-legislators on the Commission proposal establishing an EU common list of safe countries of origin, that proposal should be adopted. The final text of that new Regulation would then need to be incorporated in the Asylum Procedure Regulation before the latter is adopted and the Regulation establishing an EU common list of safe countries of origin should be repealed.
The objective is to move towards fully harmonised designations of safe countries of origin and safe third countries at Union level, based on proposals by the Commission, assisted by the European Union Agency for Asylum. It is for this reason, that this proposal includes a sunset clause whereby Member States should continue to retain national designations of safe countries of origin or safe third countries only for up to five years from entry into force of this draft Regulation (Article 50(1)).
• Right to an effective remedy
As a general rule, for an applicant to be able to exercise his or her right to an effective remedy, he or she has the right to remain until the time-limit for lodging a first level of appeal expires and where the applicant exercises such right, pending the outcome of the remedy (Article 54(1)). It is only in limited cases that the suspensive effect of an appeal might not be automatic and the individual applicant would need to request the court or tribunal to stay the execution of a return decision or the court would act of its own motion to this effect. In cases where a negative decision rejects an application as manifestly unfounded or unfounded in cases subject to the accelerated examination procedure or the border procedure, as inadmissible because the applicant comes from a first country of asylum or the application is a subsequent application, where an application is rejected as explicitly withdrawn or abandoned, a court or tribunal may allow the applicant to remain subject to a request from the applicant or acting ex officio to stay the execution of a return decision (Article 54(2)). Where an applicant lodges a further appeal against a first or a subsequent appeal decision, he or she shall, in principle, not have a right to remain on the territory of Member States (Article 54(5)).
Where an exception is made to the right to a remedy with automatic suspensive effect, the applicant's rights should be adequately guaranteed by providing him or her with the necessary interpretation and legal assistance, as well as by allowing sufficient time for the applicant to prepare and submit his or her request to the court or tribunal. Furthermore, as found by the European Court of Human Rights (ECtHR) in M.S.S. v Belgium and Greece, 19 in such a framework, the court or tribunal should be able to examine the negative decision of the determining authority in terms of fact and law. In these cases, taking into account the ruling of the ECtHR in I.M. v. France 20 and that of the Court of Justice of the European Union in Dörr, 21 and in view of the strict time-limits for lodging an appeal, the Commission proposes to extend the guarantees which, in the Asylum Procedures Directive, were only applicable to the border procedure, to all cases where an applicant is required to apply separately for interim protection (Article 54(3)). The applicant should be allowed to remain on the territory pending the outcome of the procedure to rule on whether or not he or she may remain. However, that decision should be taken within one month from the lodging of the appeal (Article 54(4)).
• Withdrawal of international protection
In its proposal for a Qualification Regulation, the Commission is proposing to strengthen rules on status review to check whether the eligibility criteria continue to be met by introducing systematic and regular reviews. Such reviews are to be carried out when there is a significant relevant change in the country of origin which is reflected in Union level country of origin information and common analysis prepared by the European Union Agency for Asylum and when residence permits are renewed for the first time for refugees and for the first and second time for beneficiaries of subsidiary protection. The determining authorities will revoke, end or refuse to renew the status when protection needs cease to exist or when exclusion grounds come into being after the protection has been granted. The procedure for withdrawal of international protection in this proposal remains largely unchanged when compared to the current legislative framework. However, in view of the proposed regular status review, it was considered necessary to enhance the procedural guarantees of the individual by providing him or her with the opportunity to submit his or her case in a personal interview and not only by means of written submissions as is currently the case, and by providing the necessary interpretation (Article 52(1)(b) and Article 52(4)). The individual will continue to enjoy the right to free legal assistance and representation (Article 52(4)).