EN    EN EN 
 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 21.10.2009 
SEC(2009) 1377 final 
  
COMMISSION STAFF WORKING DOCUMENT 
accompanying the 
 
Proposal for a 
 
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
 
on minimum standards on procedures in Me mber States for granting and withdrawing 
international protection 
  
Summary of the Impact Assessment  
  
{COM(2009) 554} 
{SEC(2009) 1376} 
 
EN 2   EN 1. P ROBLEM DEFINITION  
Despite the measures adopted in the first pha se of the Common European Asylum System 
(CEAS), asylum seekers still have very differe nt prospects of finding international protection 
depending on where in the EU their applications  are examined. The majority of Green Paper 
respondents pointed to serious deficiencies in Council Directive  2005/85/EC of 1 December 
2005 ('the Asylum Procedures Directive' or 'the directive') capable to open protection gaps 
and lead to a risk of refoulement.  
Most of the directive's provisions are optiona l and have allowed Member States (MSs) to 
continue with their existing procedures. The result is inconsistencies across the EU and 
uncertainty for applicants which make it diffi cult to speak of a commo n asylum system. As 
attested by asylum statistics, the ambiguities a nd possibilities for derogations have led to wide 
divergences in the application of the Qualification Directive (QD).  To cite only a few 
examples: 
• Percentages of total positive decisions in th e different MSs in 2007 varied from 52.2% in 
Luxemburg to 27.5% in Germany, to 0.8% in Greece; 
• Recognition rates in different MSs for applican ts from the same nationality for the period 
2005-2007 varied significan tly: for instance, for asylum seekers from Russia (mostly of 
Chechen background), from 63% in Austria to 0% in Slovakia. 
The impact assessment focuses on the issues whic h have proved to be the most controversial 
and are likely to raise different  reaction between the MSs, a nd require additional financial 
investments, namely: 
• Obstacles to requesting in ternational protection; 
• Room for administrative error; 
• Divergent procedural notions; 
• Concerns about efficiency a nd quality of decision-making.  
2. A DDED VALUE OF EU ACTION AND RESPECT FOR THE PRINCIPLE OF SUBSIDIARITY  
The Tampere conclusions provi de that the CEAS should in clude, in the short term, common 
standards for fair and ef ficient asylum procedures  and, in th e longer term, Community rules 
leading to a common asylum procedure in the EC. The Hague Programme set as an aim of 
the second-phase CEAS the establishment of  a common asylum procedure in the Union.  
The development of a CEAS became an EU prior ity due to a range of factors. In particular, 
some MSs receive much higher numbers of applicants for international protection than others. Almost 1/5
th of applications are multiple claims. Asylum seekers evidently find certain MS 
more "attractive" destinations  than others e.g. in 2006, Belg ium, Germany, France, Sweden 
and the United Kingdom received more than 3000 multiple applications while Cyprus and Portugal received under 100. Some persons in ne ed of protection are not being granted it. 
A reason for these disparities is the uneven application of  procedures for examining 
applications. This has led to a continuation of  asylum "lottery" and, consequently, secondary 
movements between the MSs, undermining the jus tification of the Dublin  Regulation which is 
based on the assumption that applicants have access to protection under equivalent conditions 
in all MSs. The direc tive goes to the heart of the CEAS, as it connects and backs up all the 
 
EN 3   EN asylum instruments, and any defi ciencies in it negatively affect the application of the other 
Community rules. 
EU action is therefore necessary  to attain higher and more harmonised standards, based on 
the existing minimum standards on asylum procedures.  
3. P OLICY OBJECTIVES  
General objective: 
To achieve higher standards of pr otection across the EU for persons in need of international 
protection. 
Specific objectives:  (1) To ensure that asylum procedures are accessible; 
(2) To improve fairness of procedures; 
(3) To ensure consistent applicati on of common procedural devices; 
(4) To improve the quality and efficiency of procedures; 
(5) To improve access to effective remedy; 
(6) To ensure consistency between different EU asylum instruments. 
4. P
OLICY OPTIONS  
The diverse nature of the problems makes it im possible to identify one single all-embracing 
policy option. Therefore, the Impact Assessment proposes separate policy options for each of 
the policy objectives. Two or three legislative s ub-options are then described for each of these 
policy options. In the area of pr ocedural asylum legislation only legislative measures may 
ensure systemic and durable impacts on the quali ty and efficiency of examination procedures. 
The sub-options are almost all cumulative. They are accompanied by envisaged practical 
cooperation activities. To  determine the elements of the pr eferred option, the IA assesses all 
the sub-options against the baseline scenario in terms of effectiveness, efficiency and 
coherence, but also in terms of their proportionality and thei r social impacts and impacts on 
fundamental rights. 
Given the level of complexity of the proposed options, this summary is limited to a 
description of the main elements  composing the preferred option. 
i. Status quo 
The existing legal framework would remain  unchanged. Commission monitoring would 
contribute to better compliance with the curr ent standards. ECJ and ECtHR rulings and 
findings which, for example, stre ss the principle of a rigorous scrutiny of app lications, might 
reduce arbitrariness in the application of the directive. However, these developments would 
be of ad hoc  and not of systemic nature. Disparate asylum procedures as allowed for by the 
directive would continue though possibly lessened by practical cooperation particularly if the 
European Asylum Support Office were to develop training pr ogrammes or provide specific 
specialist support when needed  through a pool of experts. 
 
EN 4   EN ii. Ensuring access to asylum procedures 
– provide for a competent aut hority responsible fo r registration of applications for 
international protection;  
– specify that the police, border guards and ot her authorities likely to be addressed by 
someone who wishes to make an applicat ion for international protection should be 
provided with clear instructions  on how to deal with these cases, including the obligation 
to forward the application to the competent authority;  
– introduce the obligation to make  information on the procedures for lodging an application, 
counselling and interpretation services accessible to de facto  asylum seekers who are 
present in the entry points; 
– provide for the obligation of MSs to register applications within a reasonable time limit; 
– revise the inadmissibility grounds and provide  for arrangements enabling an applicant to 
make known her/his views as regards the grounds and information on which the authorities intend to base their decision; 
– delete the European safe third country notion. 
iii. Improving procedural guarantees  
– remove derogations from the basic principles  and guarantees and provide for free legal 
assistance to unaccompanied minors as well as other asylum applicants who lack financial 
resources in procedures at first instance; 
– make sure that extradition treaties are not us ed to return an asylum applicant to her/his 
country of origin; 
– entitle an asylum applicant to access and comment on the report of a personal interview 
before a decision on her/his application is taken; 
– provide that communication during the personal  interview should take place in a language 
in which the applicant is able to communi cate and present the elements of her/his 
application properly. 
iv. Improving equal access to protection for persons with special needs 
– introduce the notion of applican ts with special needs;  
– provide for the right of a child  to lodge an application for international pr otection, delete 
the current possibility to refrain from appoi nting a representative where an unaccompanied 
minor is 16 years old or older;  
– define the qualifications of the guardian and sp ecify the right of the guardian to apply for 
asylum on behalf of an unaccompanied minor;  
– require MSs to inform each adult in private of  her/his right to make a separate application 
for international protection and to give depende nt adults the opportunity  of presenting their 
individual circumstances to the perso nnel of the determining authority;  
– define the role of and procedures for obtaini ng medico-legal report s to document signs of 
torture, provide survivors of torture with necessary time to prepare for a personal interview 
on the substance of the application, and intr oduce gender and age sens itive requirements 
for interviewing applicants;  
 
EN 5   EN – clarify that gender considerati ons and international obligations as regards the rights of the 
child should be duly taken into account when applying the directive and exempt survivors of torture, persons with mental disabil ities and unaccompanied minors from accelerated 
procedures which are based on the notion of manifestly unfounded applications;  
– exempt unaccompanied minors from border and safe third country procedures;  
– provide for including gender, trauma and age related issues in training programmes for 
asylum personnel.  
v. Approximating accelerated procedures 
– introduce a limited and exhaustive list of grounds for accelerated procedures, based on the 
notion of manifestly unfounded applications, while  preserving MS' discretion to prioritise 
other claims;  
– require MS to conduct personal interviews, an d specify that the determining authority 
should be given the necessary time to conduct a rigorous assessment of  the application.  
vi. Clarifying the notion of safe country of origin  
– delete the notion of a minimum common list of safe countries of origin and derogations 
from the material requirements for the designa tion of third countries as safe countries of 
origin at national level; 
– provide for a regular follow up review of the s ituation in third countries  designated as safe.  
vii. Improving access to effective remedy  
– clarify that the scope of revi ew should include both facts a nd points of law at least in 
procedures before a first level c ourt or tribunal and be based on ex nunc  assessment of the 
protection needs;  
– provide for automatic suspensive effect of a ppeals against first instance decisions subject 
to limited exceptions. In the latter case, in terim measures could be granted by a court 
(tribunal) on a case by case basis;  
– provide for an unrestricted right of courts (t ribunals) to receive the materials used as a 
basis for a decision of th e determining authority;  
– provide for reasonable time limits for lodgi ng appeals against firs t instance decisions.  
viii. Improving consistency between different EU asylum instruments  
– set the key elements of a single as ylum procedure in the directive; 
– expand the directive's provisions on  the withdrawal of refuge st atus to cases of withdrawal 
of subsidiary protection;  
– underline that the directive covers persons w ho are the subject to th e Dublin procedures 
and that the notion of implicit withdrawal of  the application does not apply to persons 
transferred to the responsible MS pursuant to the Dublin Regulation. 
ix. Increasing the efficiency and quality of decision making 
– reduce the current derogations from the prin ciple of a single dete rmining authority; 
 
EN 6   EN – provide that a determining authority shoul d dispose sufficient numbers of competent 
personnel;  
– introduce minimum requirements for the content of the interview; 
– specify the minimum requirements for th e content of the training programmes; 
– merge the procedure for dealing with subseq uent applications with the admissibility 
procedure;  
– require MSs to take into account further repr esentations before a final decision on the 
substance is taken; 
– lay down a reasonable time limit for taking first instance decisions on the merits.  
5. A SSESSMENT OF IMPACTS  
Each of the sub-options implies impacts, to  a varying degree, in the following areas.  
• Increased access to protection and justice  as room for administrative error in asylum 
procedures would be significantly reduced be cause of improved procedural safeguards, 
better consistency between asyl um instruments and enhanced quality of decision making; 
• Increased access to social protection  as persons seeking asylum would have increased 
chances of accessing asylum procedures and,  where applicable, obtaining protection, 
including the necessary social and healthcare.  The same consideration applies to better 
public health; 
• Increased equality/non-discrimination : in particular the provisions that promote de facto  
equality in asylum procedures (special gua rantees for women and vulnerable applicants), 
the provisions on access to effective remedy and improved procedural guarantees are key 
components of the preferred option that will  enhance equality and non-discrimination;  
• Good governance : would be better achieved within  MSs through the introduction of a 
single determining authority and providing pers onnel with necessary skills and expertise.  
Quantifying costs of changes to the CEAS  is particularly difficult.  Protection is granted on a 
case by case basis,  based on a complex analysis which is context specific, and depends on a 
number of legal and factual circumstances. No  data exist as to why, over a given period, 
certain applications have been accepted and ot hers rejected. The size or profile of asylum 
flows cannot be predicted from year to ye ar. The available indications concerning the 
principal elements of the pref erred option are the following: 
10 MS that would be potentially affected by the envisaged provisions on personal interviews 
received in total 111 650 applicants in 2008. If accessibility of interviews improve by 5 %, the proposed provision will affect at leas t 5 582 applicants requiring some 266 149,76 EUR per 
year
1. 5 MS that would be affected by envisaged measures on facilitating access to procedures 
at the maritime border received 56 985 applicants in 2008. Provisions on free legal assistance at first instance would affect at least 11 MS which received 125 255 applicants in 2008. Up to 
48 400 persons (20 % of all applicants) might be in need of the envisaged measures regarding 
torture victims. Some 45 140 pers ons might benefit from better a ccess to effective remedy in 
8 MS.
 The likely total administrative costs of the preferred option are estimated at 
EUR 2 857 555. 
                                                           
1 Estimates are based on the average hourly labour costs of asylum officials (EUR 23.84).  
 
EN 7   EN Many costs could be largely off-set by financial gains in the longer term . Potential savings 
may result from diminished secondary movement s and improved efficiency of first instance 
procedures. By frontloading serv ices, expertise and examinati ons, the preferred option should 
reduce recourse to appeals leading to admi nistrative and financial savings. There are 
indications that appeals can doubl e the cost of an asylum claim whereas an estimated 110 846 
appeals were lodged in 2007. Additionally, it would entail a reduction of th e costs involved in 
reception services. On average, 1 reception y ear may cost EUR 11 000 per person whereas the 
envisaged length of first instance procedures is 6 months, while appeal procedures often take 
at least 1 year.  
National measures to implement th e standards of th e proposal are  eligible for co-funding 
under the European Refugee Fund at a level of 50% or 75%. 
6. C OMPARISON OF OPTIONS  
The preferred option provides for setting essen tial procedural principles, safeguards and 
notions in Community Law. By harmonising th e procedural arrangements, the preferred 
option has the potential of ensuring access to protection under equivalent conditions across 
the Union and a better distribution of the ‘burden’ carried by MSs. It is also an important step 
towards achieving the EU aim of ensuring respect for the right to asylum, the principle of 
non-refoulement  and more generally for Fundamental Rights. 
The preferred option is expected to improve both the efficiency and the quality of procedures 
by “frontloading" services, advice and expertis e and encouraging MSs to deliver, within a 
reasonable time, robust determinations at first in stance. This should (i) enable MSs to quicker 
distinguish between asylum seek ers and other migrants in mixe d arrivals, (ii) improve the 
defendability of negative first in stance decisions; (iii) enable the asylum personnel to better 
identify cases of unfounded and abusive claims ; (iv) support MSs' efforts to remove failed 
asylum seekers from the territory.  
7. M ONITORING AND EVALUATION  
Monitoring and evaluation arrangements will be  in the form of a Commission evaluation 
report due every five years. Regular experts' me etings will continue to take place in view of 
discussing implementation problems and exch anging best practices between MSs. The 
European Asylum Support Office will be instrume ntal in collecting up to date information on 
the implementation of the directive in MSs.