EXPLANATORY MEMORANDUM

1. Context of the Proposal 1.1. Grounds for and objectives of the proposal

As announced in the Policy Plan on Asylum[1], on 21 October 2009, the Commission presented a proposal amending Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status[2] (hereafter – the Asylum Procedures Directive).

The proposal was prepared on the basis of the evaluation of the application of the current Directive in Member States. It also incorporated the results of a wide consultation process with Member States, the United Nations High Commissioner for Refugees, non-governmental organisations and other relevant stakeholders. The information about the implementation of the current Directive was subsequently consolidated as an Evaluation Report[3], published in September 2009, whose conclusions further reinforced the case behind the proposal.

On 6 April 2011, the European Parliament adopted a first reading position on the Commission proposal which generally supported the proposed amendments.

The proposal was also discussed in the Council, mainly under the Spanish Presidency of 2010. Discussions were however difficult and the Council was unable to reach a position.

By presenting the modified proposal, the Commission intends to use its right of initiative to boost the work to achieve a true Common European Asylum System which will benefit Member States and refugees alike. The Commission has a political responsibility to provide real opportunities so that the Union respects its commitment set out in the Stockholm Programme to achieve the Common European Asylum System by 2012. The adoption of the amended Long Term Residence Directive which covers beneficiaries of international protection gave a strong impetus towards this direction.

A common asylum procedure should be fast and fair. To achieve these objectives, the Commission has continued to gather knowledge on how to consolidate the best national practices and assemble them into a system that is coherent and easy to implement across the Union. The modified proposal brings together the additional knowledge and experience built up during the discussions on the previous proposal.

The system proposed in the modified proposal is both efficient and protective. It is cost-effective and helps tackle potential abusive claims. It guarantees that applications will be treated similarly in all Member States. It fully respects fundamental rights and the related developing case-law, thus also helping ensure it can withstand challenge before the courts. At the same time, it is flexible enough to accommodate the particularities of national legal systems. The rules that compose it are clarified and simplified to ensure effective implementation.

The modified proposal should be viewed together with the modified proposal on the Reception Conditions Directive. That proposal inter alia aims to ensure better and more harmonised reception standards for asylum seekers across the Union.

The modified proposal also relates to the Regulation establishing the European Asylum Support Office (EASO) adopted on 19 May 2010. Now that the EASO has started its activities, a more specific role can be foreseen for it to support Member States in a more efficient implementation of common rules.

1.2. General context

The 2009 proposal and the present modified proposal are part of a legislative package aiming to establish a Common European Asylum System (CEAS).

In particular, in 2008, together with the proposal amending the Reception Conditions Directive, the Commission also adopted proposals amending the Dublin and EURODAC Regulations. In 2009, the Commission adopted proposals amending the Asylum Procedures and the Qualification Directives. Finally, the European Asylum Support Office was established by a Regulation of 19 May 2010 in order to increase coordination of operational cooperation between Member States so that common rules in the area of asylum are implemented effectively.

This legislative package is in line with the 2008 European Pact on Immigration and Asylum[4], which reconfirmed the objectives of The Hague Programme, and called on the Commission to present proposals for establishing, in 2012 at the latest, a single asylum procedure comprising common guarantees. In the same framework, the Stockholm programme adopted by the European Council at its meeting of 10–11 December 2009 underlined the need to establish "a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection", based on "high protection standards" and "fair and effective procedures", by 2012. In particular, the Stockholm Programme affirmed that people in need of international protection must be ensured access to legally safe and efficient asylum procedures. In accordance with the Stockholm Programme, individuals, regardless of the Member State in which their application for asylum is lodged, should be offered the same level of treatment as regards procedural arrangements and status determination. The objective should be that similar cases should be treated alike and result in the same outcome.

An Impact Assessment was conducted as part of the preparation of the previous proposal. The modified proposal is based on the same principles as the previous proposal. In addition, it aims to reduce costs and administrative burden while simplifying and clarifying certain provisions to make their implementation easier. For this reason, the Impact Assessment conducted for the previous proposal continues to apply to the modified proposal.

1.3. Consistency with other policies and objectives of the Union

This proposal is fully in line with the Tampere European Council Conclusions of 1999, The Hague Programme of 2004, the European Pact on Immigration and Asylum, adopted by the European Council on 17 October 2008 and the Stockholm Programme of 2009 which requires the achievement of the CEAS by 2012.

The proposal is also consistent with the objectives of the Europe 2020 strategy, in particular regarding better integration of legal migrants. By promoting faster and more robust asylum procedures, it fosters employability of refugees and persons in need of subsidiary protection as their skills would suffer less from a long period without full access to labour market. It also seeks to reduce Member States' reception costs, thus promoting the sustainability of public finances.

2. Consultation of Interested Parties

As part of the preparatory work for the previous proposal, the Commission presented a Green Paper, conducted several experts' meetings, including with the UNHCR and civil society partners, commissioned an external study, and collected data in response to several detailed questionnaires. The Commission adopted the Evaluation Report on the implementation of the current Directive on 8 September 2010. Its conclusions further reinforced the findings of the preparatory work.

Following the presentation of the previous proposal in October 2009, discussions were conducted at the technical level in the Council, mainly under the Spanish Presidency. During the discussions, several Member States opposed specific provisions of the proposal because of the particularities of their asylum and/or legal systems. However, the Council was unable to find satisfactory solutions.

It became apparent that, in order to avoid incorporating multiple exceptions for specific Member States and thus jeopardising the overall coherence of the proposed system, there was an opportunity for the Commission to revisit the proposal to propose a more comprehensive solution to the issues voiced, while safeguarding the added value of the text. Clarifying and simplifying the proposed provisions to make their implementation easier for Member States should give a renewed impetus to the discussions. Therefore, the Commission announced in the Justice and Home Affairs Council that it would present a modified proposal for this Directive before the start of the 2011 Polish Council Presidency.

As part of the preparatory work for this modified proposal, the Commission conducted a series of technical consultation meetings in January–April 2010. The modified proposal also takes into account the discussions in the framework of the Ministerial Conference on the quality and efficiency in the asylum process, organised by the Belgian Presidency on 13–14 September 2010. The conference inter alia focused on the issues of interviews, training, country-of-origin information, priority procedures and repeated applications.

The European Parliament adopted its first reading position on 6 April 2011. The resolution generally supported the Commission's proposal. Most of the proposed amendments aimed at strengthening the guarantees for applicants. Some aimed to provide more flexibility for Member States or to improve the overall coherence of the text. The substance of the resolution was taken into account in the preparation of the modified proposal, which thus incorporates many amendments either in text or in substance.

The Parliament's position also contains an important set of amendments which would lead to significant changes regarding the various safe third country notions. The Commission carefully assessed this amendment and concluded that the idea of deletion of national lists of safe countries and the adoption of common EU lists could be considered in the future. However, it will be realistic only once the EASO has the capacity to support in a sustainable manner the replacement of national lists by drafting reports on countries of origin based on relevant, reliable, accurate and up-to-date country of origin information gathered in a transparent and impartial manner, by the development of a common format and a common methodology for presenting, verifying and using information on countries of origin, and analysis of the information on countries of origin.

Although the Parliament's amendments on the various safe third country notions have not been incorporated in the modified proposal, the Commission recognises the need to further harmonise these rules. To that end, the Commission commits to organise, in an appropriate manner, a regular review of the use of these notions with the Member States and the involvement of the Parliament. This regular review process should help prepare further harmonisation in the future.

The modified proposal aims to be a balanced solution to facilitate the negotiations between the two co-legislators.

3. Legal Elements of the Proposal 3.1. Summary of the proposed action

The main aim of this modified proposal is to simplify and clarify rules, in order to make them more compatible with the variety of national legal systems and to help Member States to apply them in a way that is more cost-effective in their particular situations.

As with the previous proposal, the overall objective remains to achieve procedures that are efficient and fair. The proposal continues to ensure full respect of fundamental rights as it is informed by developing case law of the Court of Justice of the European Union and the European Court of Human Rights, especially concerning the right to an effective remedy. Compared to the current Directive, procedural guarantees ensuring fair and efficient procedures have been revised in order to lead to more consistent application of procedural principles. The proposal also introduces more consistent and simplified procedural notions and devices, thus providing asylum authorities with necessary procedural tools to prevent abuse and quickly process clearly unfounded applications.

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. The proposal enhances the consistency with the modified proposal on the Reception Conditions Directive and the EASO Regulation.

3.1.1. Making implementation easier for Member States

A number of changes were made to ensure the proposal is more compatible with the variety of legal systems and other arrangements in different Member States. This concerns, for example, rules on decisions on the right to enter the territory, the possibility to postpone the taking of a decision where the situation in the country of origin is temporarily uncertain, and grounds for examining applications at the border. Several provisions have also been made more flexible to ensure easier implementation.

In order to enable Member States to deal appropriately with a large number of simultaneous asylum claims, rules have been revised as regards access to procedure, conducting personal interviews, and standard maximum duration of asylum procedures.

Finally, all provisions have been thoroughly revised throughout the text to clarify and simplify the rules in order to facilitate discussions and ensure effective implementation.

3.1.2. Better addressing potential abuse

The modified proposal enhances the ability of Member States to address potential abuse of the asylum system. New rules provide that Member States may accelerate procedures and examine at the border claims where the applicant has made clearly false or obviously improbable representations which contradict sufficiently verified country-of-origin information, thus making the claim clearly unconvincing. The same applies to applicants who are a danger to national security or public order.

To better deal with applicants who abscond or fail to comply with their obligations, rules on implicit withdrawal of an application have also been amended. According to these rules, Member States can reject an application based on implicit withdrawal if the authorities already have sufficient elements to adequately examine the claim. In order to increase the applicants' awareness of the consequences of withdrawal, Member States are required to inform applicants about these rules at the beginning of the procedure.

3.1.3. 'Frontloading': fast, fair and efficient procedures

Frontloading means putting the adequate resources into the quality of decision-making at first instance to make procedures fairer and more efficient. A standard asylum procedure of no more than six months remains a major objective of the proposal. At the same time, the modified proposal makes a number of clarifications to enable an easier implementation of this concept taking into account the particularities of different Member States.

A key element of frontloading is early access to support to help an applicant understand the procedure. The modified proposal clarifies the substance of this basic support to distinguish it from the free legal assistance available in appeals procedures. Member States are free to find the appropriate modalities to provide the support, including through non-governmental organisations, government officials, or specialised services of the state. The amendments should make the implementation of this key provision more cost-effective and dispel misunderstandings which could lead to conflicts between these rules and the general administrative law of several Member States.

The proposal also simplifies the rules on the training that Member States have to provide to the personnel examining and taking decisions on applications. While a high level of competence of this personnel remains the objective, as it is the only way to ensure robust and defendable decisions by the asylum authorities, the modalities are simplified and made more coherent in relation to other parts of the asylum acquis.

Finally, provisions on applicants in need of special procedural guarantees are simplified. The new rules are less prescriptive to give Member States more latitude and flexibility to take into account in the appropriate way the variety of potential specific situations of applicants. At the same time, the rules continue to provide for a high level of guarantees for these persons.

3.1.4. Guaranteeing access to protection

To ensure that a person who expresses a wish to request international protection has an effective opportunity to apply, the modified proposal improves the rules on the initial steps to take in the asylum procedure.

In particular, it removes the potential confusion between the receipt of a complete asylum application and the basic act of registering the fact that a person is an applicant. It thus makes it easier for Member States to comply with the proposed deadline of 72 hours to register an applicant as such after his/her expression of wish to apply, which can be prolonged if respecting it is practically impossible.

Moreover, it provides for simple rules on the training and instructions to be given to border guards and any other authorities likely to enter into contact with potential applicants. The new rules should help Member States implement them taking into account the diversity of their national situations.

3.1.5. Clear rules on repeated applications

Even after an application for international protection has been rejected, a person must be able to reapply if his/her circumstances have changed, in order to take into account the possibility of "sur place" claims in line with the Qualification Directive. The modified proposal clarifies the rules regarding such applications to prevent their potential abuse.

According to these rules, a subsequent application is subject to a rapid and efficient preliminary examination to determine whether there are any new elements that justify further examination. If there are new elements, the subsequent application has to be examined in conformity with the general rules. If there are not, the application is declared inadmissible. To prevent abuse, Member States may then make an exception from the right to remain in the territory even if the person makes further applications for international protection.

3.1.6. Increased coherence with other instruments of the EU asylum acquis

The modified proposal revises a number of devices to make them more coherent with other EU asylum instruments, in particular with the modified proposal for the Reception Conditions Directive. This concerns in particular provisions on special needs and vulnerable persons and border procedures.

The modified proposal also aligns provisions on training on the equivalent provisions of the EASO Regulation. It also foresees a more concrete role for the EASO in the provisions regarding training and access to procedure. The objective is to give Member States flexibility but also support. The involvement of the EASO should also foster coherence in implementation across the Union.

With a view to facilitating consistent application of the 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.

3.2. Legal basis

The modified proposal amends Directive 2005/85/EC and uses Article 78(2)(d) of the Treaty on the Functioning of the European Union (TFEU) as a legal basis which foresees the adoption of measures for common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status.

3.3. Territorial application

The proposed Directive will be addressed to the Member States. Application of the Directive to the United Kingdom and Ireland will be determined in accordance with the provisions of Protocol No 21 annexed to the TFEU.

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TFEU, Denmark is not bound by the Directive nor is subject to its application.

3.4. Subsidiarity principle

Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on European Union, 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 Union.

The legal base for Union action is established in Article 78 TFEU. This provision states that the Union is to "develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be 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".

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, in particular to avoid secondary movements. 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 common asylum procedures. These standards are also considered indispensible with a view to ensuring that applicants for international protection who are the subject to the Dublin procedures have their applications examined under equivalent conditions in different Member States.

3.5. Proportionality principle

The impact assessment on the amendment of the Asylum Procedures Directive[5], conducted as part of the preparatory work for the previous proposal, 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. The present modified proposal retains the guiding principles of the previous proposal, while introducing additional flexibility for Member States, thus further contributing to the respect of the principle of proportionality.

3.6. Impact on fundamental rights

This proposal was subject to an in-depth scrutiny with a view to ensuring that its provisions are fully compatible with:

– fundamental rights enshrined in the Charter of Fundamental Rights of the EU, 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 Union will have an overall positive impact for asylum seekers and will render the fundamental right to asylum of Article 18 of the Charter more effective. In particular, the proposal will reduce room for administrative error in asylum procedures thus ensuring better respect for the principle of non-refoulement enshrined in Article 19 of the Charter and improving access to protection and justice with the guarantee that every applicant should have in the case of a negative decision the right to an effective remedy before a court or a tribunal according to Article 47 of the Charter. The proposal will also enhance gender equality prescribed by Article 23 of the Charter, promote the best interests of the child principle in the asylum procedures, in line with Article 24 of the Charter, and reinforce the principle of non-discrimination as provided in Article 21 of the Charter.

2009/0165 (COD)

Amended proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on common procedures for granting and withdrawing international protection status (Recast)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 78(2)(d) thereof,

Having regard to the proposal from the European Commission,

Having regard to the opinion of the European Economic and Social Committee[6],

Having regard to the opinion of the Committee of the Regions[7],

Acting in accordance with the ordinary legislative procedure,

Whereas:

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(1) A number of substantive changes are to be made to Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures for granting and withdrawing refugee status[8]. In the interest of clarity, that Directive should be recast.

ê 2005/85/EC recital 1 (adapted)

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(2) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Ö Union Õ Community. ð It should be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. ï

ê 2005/85/EC recital 2

(3) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967 (Geneva Convention), thus affirming the principle of non‑refoulement and ensuring that nobody is sent back to persecution.

ê 2005/85/EC recital 3 (adapted)

(4) The Tampere Conclusions provide that a Common European Asylum System should include, in the short term, common standards for fair and efficient asylum procedures in the Member States and, in the longer term, Ö Union Õ Community rules leading to a common asylum procedure in the European Ö Union Õ Community.

ê 2005/85/EC recital 4

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(5) ð The first phase of a Common European Asylum System was achieved through the adoption of relevant legal instruments foreseen in the Treaties, including Directive 2005/85/EC which was ï The minimum standards laid down in this Directive on procedures in Member States for granting or withdrawing refugee status are therefore a first measure on asylum procedures.

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(6) The European Council, at its meeting of 4 November 2004, adopted the Hague Programme, which set the objectives to be implemented in the area of freedom, security and justice in the period 2005-2010. In this respect, the Hague Programme invited the European Commission to conclude the evaluation of the first phase legal instruments and to submit the second phase instruments and measures to the Council and the European Parliament. In accordance with the Hague Programme, the objective to be pursued for the creation of the Common European Asylum System is the establishment of a common asylum procedure and a uniform status valid throughout the Union.

(7) In the European Pact on Immigration and Asylum, adopted on 16 October 2008, the European Council noted that considerable disparities remain between one Member State and another concerning the grant of protection and called for new initiatives, including a proposal for establishing a single asylum procedure comprising common guarantees, to complete the establishment of a Common European Asylum System, provided for in the Hague Programme.

(8) The European Council, at its meeting of 10-11 December 2009, adopted the Stockholm Programme which reconfirmed the commitment to establishing a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection based on high protection standards and fair and effective procedures by 2012. The Stockholm Programme affirmed that people in need of international protection must be ensured access to legally safe and efficient asylum procedures. In accordance with the Stockholm Programme, individuals, regardless of the Member State in which their application for asylum is lodged, should be offered the same level of treatment as regards procedural arrangements and status determination. The objective should be that similar cases should be treated alike and result in the same outcome.

(9) The resources of the European Refugee Fund and of the European Asylum Support Office, established by Regulation (EU) No 439/2010 of the European Parliament and of the Council[9], should be mobilised to provide adequate support to the Member States' efforts relating to the implementation of the standards set in the second phase of the Common European Asylum System, in particular to those Member States which are faced with specific and disproportionate pressures on their asylum systems, due in particular to their geographical or demographic situation.

(10) In order to ensure a comprehensive and efficient evaluation of the international protection needs of applicants within the meaning of Directive […/.../EU] [on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (the Qualification Directive)], the Union framework on procedures for granting international protection should be based on the concept of a single asylum procedure.

ê 2005/85/EC recital 5

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(11) The main objective of this Directive is to ð further develop the standards for procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the Union ï introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status.

ê 2005/85/EC recital 6

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(12) The approximation of rules on the procedures for granting and withdrawing ð international protection ï refugee status should help to limit the secondary movements of applicants for ð international protection ï asylum between Member States, where such movement would be caused by differences in legal frameworks ð , and create equivalent conditions for the application of Directive […/…/EU] [the Qualification Directive] in Member States ï.

ê 2005/85/EC recital 7

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(13) It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions for third country nationals or stateless persons who ask for international protection from a Member State, where such a request is understood to be on the grounds that the person concerned is ð in need of international protection ï a refugee within the meaning of ð Directive […/…/EU] [the Qualification Directive] ï Article 1(A) of the Geneva Convention.

ê 2005/85/EC recital 9

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(14) With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination.

ê 2005/85/EC recital 10

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(15) It is essential that decisions on all applications for ð international protection ï asylum be taken on the basis of the facts and, in the first instance, by authorities whose personnel has the appropriate knowledge or has receiveds the necessary training in the field of asylum and ð international protection ï refugee matters.

ê 2005/85/EC recital 11 (adapted)

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(16) It is in the interest of both Member States and applicants for ð international protection ï asylum Ö that a decision is made Õ to make a decision as soon as possible on applications for ð international protection ï asylum, ð without prejudice to an adequate and complete examination ï. The organisation of the processing of applications for asylum should be left to the discretion of Member States, so that they may, in accordance with their national needs, prioritise or accelerate the processing of any application, taking into account the standards in this Directive.

(17) It is also in the interest of both Member States and applicants to ensure a correct recognition of international protection needs already at first instance. To that end, applicants should be provided at first instance, free of charge, with legal and procedural information, taking into account their particular circumstances. The provision of such information should inter alia enable the applicants to better understand the procedure, thus helping them to comply with the relevant obligations. It would be disproportionate to require Member States to provide such information only through the services of qualified lawyers. Member States should therefore have the possibility to find the most appropriate modalities for the provision of such information, such as through non-governmental organisations, government officials or specialised services of the State.

(18) In appeals procedures, subject to certain conditions, applicants should be granted free legal assistance and representation provided by persons competent to do so under national law. Furthermore, at all stages of the procedure, applicants should have the right to consult, at their own cost, legal advisers or counsellors permitted as such under national law.

ê 2005/85/EC recital 12

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(19) The notion of public order may ð inter alia ï cover a conviction for committing a serious crime.

ê 2005/85/EC recital 13 (adapted)

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(20) In the interests of a correct recognition of those persons in need of protection as refugees within the meaning of Article 1 of the Geneva Convention ð or as persons eligible for subsidiary protection ï, every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure. Moreover, the procedure in which an application for ð international protection ï asylum is examined should normally provide an applicant at least with the right to stay pending a decision by the determining authority, access to the services of an interpreter for submitting his/her case if interviewed by the authorities, the opportunity to communicate with a representative of the United Nations High Commissioner for Refugees (UNHCR) ð and with organisations providing advice or counselling to applicants for international protection ï or with any organisation working on its behalf, the right to appropriate notification of a decision, a motivation of that decision in fact and in law, the opportunity to consult a legal adviser or other counsellor, and the right to be informed of his/her legal position at decisive moments in the course of the procedure, in a language he/she ð understands or ï Ö is Õ can reasonably be supposed to understand ð and, in the case of a negative decision, the right to an effective remedy before a court of a tribunal ï.

ê 2005/85/EC recital 14

In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their vulnerability. In this context, the best interests of the child should be a primary consideration of Member States.

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(21) With a view to ensuring an effective access to the examination procedure, officials who first come into contact with persons seeking international protection, in particular those carrying out surveillance of land or maritime borders or conducting border checks, should receive instructions and necessary training on how to recognise and deal with requests for international protection. They should be able to provide third country nationals or stateless persons who are present in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and wish to request international protection, with all relevant information as to where and how applications for international protection may be lodged. Where those persons are present in the territorial waters of a Member State, they should be disembarked on land and have their applications examined in accordance with this Directive.

(22) In order to facilitate access to the examination procedure at border crossing points and in detention facilities, information should be made available on the possibility to request international protection. Basic communication necessary to enable the competent authorities to understand if persons declare their wish to apply for international protection should be ensured through interpretation arrangements.

(23) In addition, applicants in need of special procedural guarantees, such as minors, unaccompanied minors, persons who have been subjected to torture, rape or other serious acts of violence or disabled persons, should be provided with adequate support in order to create the conditions necessary for their effective access to procedures and presenting the elements needed to substantiate the application for international protection.

(24) National measures dealing with identification and documentation of symptoms and signs of torture or other serious acts of physical or mental violence, including acts of sexual violence, in procedures covered by this Directive should inter alia be based on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).

(25) With a view to ensuring substantive equality between female and male applicants, examination procedures should be gender sensitive. In particular, personal interviews should be organised in a way which makes its possible for both female and male applicants to speak about their past experiences in cases involving gender based persecution. The complexity of gender related claims should be properly taken into account in procedures based on the safe third country concept, the safe country of origin concept or the notion of subsequent applications.

(26) The best interests of the child should be a primary consideration of Member States when implementing this Directive, in line with the Charter of Fundamental Rights of the European Union and the 1989 United Nations Convention on the Rights of the Child.

(27) Procedures for examining international protection needs should be organised in a way that makes it possible for the competent authorities to conduct a rigorous examination of applications for international protection.

ê 2005/85/EC recital 15

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(28) Where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure. In these cases, Member States should ð be able to dismiss an application as inadmissible in accordance with the res judicata principle ï have a choice of procedure involving exceptions to the guarantees normally enjoyed by the applicant.

ê 2005/85/EC recital 16

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(29) Many asylum applications ð for international protection ï are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant. Member States should be able to ð provide for admissibility and/or substantive examination procedures which make it possible to decide on applications made at the border or in transit zones at those locations in well-defined circumstances ï keep existing procedures adapted to the specific situation of these applicants at the border. Common rules should be defined on possible exceptions made in these circumstances to the guarantees normally enjoyed by applicants. Border procedures should mainly apply to those applicants who do not meet the conditions for entry into the territory of the Member States.

ê 2005/85/EC recital 17

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(30) A key consideration for the well‑foundedness of an asylum application ð for international protection ï is the safety of the applicant in his/her country of origin. Where a third country can be regarded as a safe country of origin, Member States should be able to designate it as safe and presume its safety for a particular applicant, unless he/she presents serious counter‑indications.

ê 2005/85/EC recital 18

(31) Given the level of harmonisation achieved on the qualification of third country nationals and stateless persons as refugees, common criteria for designating third countries as safe countries of origin should be established.

ê 2005/85/EC recital 19

Where the Council has satisfied itself that those criteria are met in relation to a particular country of origin, and has consequently included it in the minimum common list of safe countries of origin to be adopted pursuant to this Directive, Member States should be obliged to consider applications of persons with the nationality of that country, or of stateless persons formerly habitually resident in that country, on the basis of the rebuttable presumption of the safety of that country. In the light of the political importance of the designation of safe countries of origin, in particular in view of the implications of an assessment of the human rights situation in a country of origin and its implications for the policies of the European Union in the field of external relations, the Council should take any decisions on the establishment or amendment of the list, after consultation of the European Parliament.

ê 2005/85/EC recital 20 (adapted)

(32) It results from the status of Bulgaria and Romania as candidate countries for accession to the European Union and the progress made by these countries towards membership that they should be regarded as constituting safe countries of origin for the purposes of this Directive until the date of their accession to the European Union.

ê 2005/85/EC recital 21

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(33) The designation of a third country as a safe country of origin for the purposes of this Directive cannot establish an absolute guarantee of safety for nationals of that country. By its very nature, the assessment underlying the designation can only take into account the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in the country concerned. For this reason, it is important that, where an applicant shows that there are ð valid ï serious reasons to consider the country not to be safe in his/her particular circumstances, the designation of the country as safe can no longer be considered relevant for him/her.

ê 2005/85/EC recital 22 (adapted)

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(34) Member States should examine all applications on the substance, i.e. assess whether the applicant in question qualifies Ö for international protection Õ as a refugee in accordance with Directive […/…/EU] [the Qualification Directive] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, except where the present Directive provides otherwise, in particular where it can be reasonably assumed that another country would do the examination or provide sufficient protection. In particular, Member States should not be obliged to assess the substance of an asylum application ð for international protection ï where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to this country.

ê 2005/85/EC recital 23

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(35) Member States should also not be obliged to assess the substance of an an asylum application ð for international protection ï where the applicant, due to a ð sufficient ï connection to a third country as defined by national law, can reasonably be expected to seek protection in that third country ð, and there are grounds for considering that the applicant will be admitted or re-admitted to that country ï. Member States should only proceed on this basis where this particular applicant would be safe in the third country concerned. In order to avoid secondary movements of applicants, common principles for the consideration or designation by Member States of third countries as safe should be established.

ê 2005/85/EC recital 24

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(36) Furthermore, with respect to certain European third countries, which observe particularly high human rights and refugee protection standards, Member States should be allowed to not carry out, or not to carry out full examination of asylum applications ð for international protection ï regarding applicants who enter their territory from such European third countries. Given the potential consequences for the applicant of a restricted or omitted examination, this application of the safe third country concept should be restricted to cases involving third countries with respect to which the Council has satisfied itself that the high standards for the safety of the third country concerned, as set out in this Directive, are fulfilled. The Council should take decisions in this matter after consultation of the European Parliament.

ê 2005/85/EC recital 25

It follows from the nature of the common standards concerning both safe third country concepts as set out in this Directive, that the practical effect of the concepts depends on whether the third country in question permits the applicant in question to enter its territory.

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(37) In order to facilitate regular exchange of information about the national application of the safe country of origin, safe third country and European safe third country concepts and to prepare possible further harmonisation in the future, Member States should notify or periodically inform the Commission about the third countries to which these concepts are applied.

ê 2005/85/EC recital 26

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(38) With respect to the withdrawal of refugee ð or subsidiary protection ï status, Member States should ensure that persons benefiting from ð international protection ï refugee status are duly informed of a possible reconsideration of their status and have the opportunity to submit their point of view before the authorities can take a motivated decision to withdraw their status. However, dispensing with these guarantees should be allowed where the reasons for the cessation of the refugee status is not related to a change of the conditions on which the recognition was based.

ê 2005/85/EC recital 27 (adapted)

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(39) It reflects a basic principle of Ö Union Õ Community law that the decisions taken on an application for asylum ð international protection, the decisions concerning a refusal to re-open the examination of an application after its discontinuation, ï and Ö the decisions Õ on the withdrawal of refugee ð or subsidiary protection ï status are subject to an effective remedy before a court or tribunal within the meaning of Article 234 of the Treaty. The effectiveness of the remedy, also with regard to the examination of the relevant facts, depends on the administrative and judicial system of each Member State seen as a whole.

ê 2005/85/EC recital 28

(40) In accordance with Article 72 64 of the Treaty on the Functioning of the European Union, this Directive does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

ê 2005/85/EC recital 29

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(41) This Directive does not deal with procedures ð between Member States ï governed by Council Regulation (EC) No 343/2003 of 18 February 2003 Regulation (EU) No […/…] [establishing the criteria and mechanisms for determining the Member state responsible for examining an asylum application ð for international protection ï lodged in one of the Member States by a third‑country national ð or a stateless person ï] (the Dublin Regulation).

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(42) Applicants with regard to whom Regulation (EU) No […/…] [the Dublin Regulation] applies should enjoy access to the basic principles and guarantees set out in this Directive and to the special guarantees pursuant to Regulation (EU) No […/…] [the Dublin Regulation].

ê 2005/85/EC recital 30

(43) The implementation of this Directive should be evaluated at regular intervals not exceeding two years.

ê 2005/85/EC recital 31 (adapted)

(44) Since the objectives of this Directive, namely to establish minimum standards on procedures in Member States for granting and withdrawing refugee status cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Ö Union Õ Community level, the Ö Union Õ Community 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 Directive does not go beyond what is necessary in order to achieve that objective.

ê 2005/85/EC recital 32

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified, by letter of 24 January 2001, its wish to take part in the adoption and application of this Directive.

ê 2005/85/EC recital 33

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland has notified, by letter of 14 February 2001, its wish to take part in the adoption and application of this Directive.

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(45) In accordance with Article 4a(1) of Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, and without prejudice to paragraph 2 of that Article, so long as the United Kingdom and Ireland have not notified their wish to accept this measure, in accordance with Article 4 of that Protocol, they are not bound by it and continue to be bound by Directive 2005/85/EC.

ê 2005/85/EC recital 34

(46) 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 on the Functioning of the European Union establishing the European Community, Denmark does not take part in the adoption of this Directive and is not bound by it or subject to its application.

ê 2005/85/EC recital 8

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(47) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. ð In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 18, 19, 21, 23, 24, and 47 of the Charter and has to be implemented accordingly. ï

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(48) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directive. The obligation to transpose the provisions which are unchanged arises under the earlier Directive.

(49) This Directive should be without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law of the Directive set out in Annex II, Part B.

ê 2005/85/EC

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HAVE ADOPTED THIS DIRECTIVE,

CHAPTER I

General provisions

Article 1

Purpose

The purpose of this Directive is to establish ð common ï minimum standards on procedures in Member States for granting and withdrawing ð international protection status by virtue of Directive […/…/EU] [the Qualification Directive] ï refugee status.

Article 2

Definitions

For the purposes of this Directive:

(a) "Geneva Convention" means the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967;

(b) "application" or "application for asylum" means an application made by a third country national or stateless person which can be understood as a request for international protection from a Member State under the Geneva Convention. Any application for international protection is presumed to be an application for asylum, unless the person concerned explicitly requests another kind of protection that can be applied for separately;

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(b) "application" or "application for international protection" means a request made by a third country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection outside the scope of Directive […/…/EU] [the Qualification Directive], that can be applied for separately;

ê 2005/85/EC

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(c) "applicant" or "applicant for ð international protection ï asylum" means a third country national or stateless person who has made an application for ð international protection ï asylum in respect of which a final decision has not yet been taken;

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(d) "applicant in need of special procedural guarantees" means an applicant who due to age, gender, sexual orientation, gender identity, disability, serious physical illness, mental illness, post traumatic disorders or consequences of torture, rape or other serious forms of psychological, physical or sexual violence is in need of special guarantees in order to benefit from the rights and comply with the obligations provided for in this Directive;

ê 2005/85/EC

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(e d) "final decision" means a decision on whether the third country national or stateless person be granted refugee ð or subsidiary protection ï status by virtue of Directive […/…/EU] [the Qualification Directive] 2004/83/EC and which is no longer subject to a remedy within the framework of Chapter V of this Directive irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome, subject to Annex III of this Directive;

(f e) "determining authority" means any quasi‑judicial or administrative body in a Member State responsible for examining applications for ð international protection ï asylum competent to take decisions at first instance in such cases, subject to Annex I;

(g f) "refugee" means a third country national or a stateless person who fulfils the requirements of Article 2(d) of Directive […/…/EU] [the Qualification Directive] 1 of the Geneva Convention as set out in Directive 2004/83/EC;

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(h) "person eligible for subsidiary protection" means a third country national or a stateless person who fulfils the requirements of Article 2(f) of Directive […/…/EU] [the Qualification Directive];

(i) "international protection status" means the recognition by a Member State of a third country national or a stateless person as a refugee or a person eligible for subsidiary protection;

ê 2005/85/EC (adapted)

(j g) "refugee status" means the recognition by a Member State of a third country national or Ö a Õ stateless person as a refugee;

ò new

(k) "subsidiary protection status" means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection;

(l) "minor" means a third country national or a stateless person below the age of 18 years;

ê 2005/85/EC (adapted)

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(m h) "unaccompanied minor" means ð a minor as defined in Article 2(l) of Directive […/…/EU] [the Qualification Directive] ï a person below the age of eighteen who arrives in the territory of the Member States unaccompanied by an adult responsible for him/her whether by law or by custom, and for as long as he/she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he/she has entered the territory of the Member States;

(n i) "representative" means a ð person or an organisation appointed by the competent bodies to act as a legal guardian in order to assist and represent an unaccompanied minor in procedures provided for in this Directive with a view to ensuring the child's best interests and exercising legal capacity for the minor where necessary. Where an organisation acts as a representative, it shall appoint a person responsible for carrying out the duties of the legal guardian in respect of the minor, in accordance with this Directive ï person acting on behalf of an organisation representing an unaccompanied minor as legal guardian, a person acting on behalf of a national organisation which is responsible for the care and well‑being of minors, or any other appropriate representation appointed to ensure his/her best interests;

(o j) "withdrawal of ð international protection ï refugee status" means the decision by a competent authority to revoke, end or refuse to renew the refugee ð or subsidiary protection ï status of a person in accordance with Directive […/…/EU] [the Qualification Directive] 2004/83/EC;

(p k) "remain in the Member State" means to remain in the territory, including at the border or in transit zones, of the Member State in which the application for ð international protection ï asylum has been made or is being examined;.

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(q) "subsequent application" means a further application made after a final decision has been taken on a previous application, including cases where the applicant has explicitly withdrawn his/her application and cases where the determining authority has rejected an application following its implicit withdrawal in accordance with Article 28(1).

ê 2005/85/EC (adapted)

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Article 3

Scope

1. This Directive shall apply to all applications for ð international protection ï asylum made in the territory, including at the border ð , in the territorial waters ï or in the transit zones of the Member States, and to the withdrawal of ð international protection ï refugee status.

2. This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations of Member States.

3. Where Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for other kinds of international protection given under the circumstances defined by Article 15 of Directive 2004/83/EC, they shall apply this Directive throughout their procedure.

3. 4. Moreover, Member States may decide to apply this Directive in procedures for deciding on applications for any kind of international protection ð falling outside of the scope of Directive […/…/EU] [the Qualification Directive] ï.

Article 4

Responsible authorities

1. Member States shall designate for all procedures a determining authority which will be responsible for an appropriate examination of the applications in accordance with this Directive, in particular Articles 8(2) and 9. ð Member States shall ensure that that authority is provided with appropriate means, including sufficient competent personnel, to carry out its tasks in accordance with this Directive. ï

In accordance with Article 4(4) of Regulation (EC) No 343/2003, applications for asylum made in a Member State to the authorities of another Member State carrying out immigration controls there shall be dealt with by the Member State in whose territory the application is made.

2. However, Member States may provide that Ö an Õ another authority Ö other than that referred to in paragraph 1 Õ is responsible for the purposes of:

(a) ð processing cases pursuant to Regulation (EU) No […/…] [the Dublin Regulation], and ï processing cases in which it is considered to transfer the applicant to another State according to the rules establishing criteria and mechanisms for determining which State is responsible for considering an application for asylum, until the transfer takes place or the requested State has refused to take charge of or take back the applicant;

(b) taking a decision on the application in the light of national security provisions, provided the determining authority is consulted prior to this decision as to whether the applicant qualifies as a refugee by virtue of Directive 2004/83/EC;

(c) conducting a preliminary examination pursuant to Article 32, provided this authority has access to the applicant's file regarding the previous application;

(d) processing cases in the framework of the procedures provided for in Article 35(1);

(b e) ð granting or ï refusing permission to enter in the framework of the procedure provided for in Article ð 43 ï 35(2) to (5), subject to the conditions and as set out therein ð and on the basis of the opinion of the determining authority. ï ;

(f) establishing that an applicant is seeking to enter or has entered into the Member State from a safe third country pursuant to Article 36, subject to the conditions and as set out in that Article.

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3. Member States shall ensure that the personnel of the determining authority are properly trained. To that end, Member States shall provide for initial and, where relevant, follow-up training which shall include the elements listed in Article 6(4) (a) to (e) of Regulation (EU) No 439/2010. Member States shall also take into account the training established and developed by the European Asylum Support Office.

ê 2005/85/EC (adapted)

4. 3. Where Ö an authority is Õ authorities are designated in accordance with paragraph 2, Member States shall ensure that the personnel of Ö that authority Õ such authorities have the appropriate knowledge or receive the necessary training to fulfil their obligations when implementing this Directive.

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5. Applications for international protection made in a Member State to the authorities of another Member State carrying out border or immigration controls there shall be dealt with by the Member State in whose territory the application is made.

ê 2005/85/EC

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Article 5

More favourable provisions

Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing ð international protection ï refugee status, insofar as those standards are compatible with this Directive.

CHAPTER II

Basic principles and guarantees

Article 6

Access to the procedure

1. Member States may require that applications for ð international protection ï asylum be ð lodged ï made in person and/or at a designated place ð, without prejudice to paragraphs 2, 3, and 4 ï.

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2. Member States shall ensure that a person who wishes to make an application for international protection has an effective opportunity to lodge the application as soon as possible.

3. When a person declares his/her wish to make an application for international protection, Member States shall ensure that the fact that that person is an applicant is registered as soon as possible and no later than 72 hours after such declaration.

To that end, Member States shall ensure that the personnel of authorities likely to receive such declarations has relevant instructions and receives the necessary training.

In the implementation of this paragraph, Member States shall take into account relevant guidelines developed by the European Asylum Support Office.

4. Where a large number of third country nationals or stateless persons simultaneously request international protection, which makes it impossible in practice to respect the 72-hour time limit laid down in paragraph 3, Member States may provide for that time limit to be extended to 7 working days.

ê 2005/85/EC (adapted)

2. Member States shall ensure that each adult having legal capacity has the right to make an application for asylum on his/her own behalf.

3. Member States may provide that an application may be made by an applicant on behalf of his/her dependants. In such cases Member States shall ensure that dependant adults consent to the lodging of the application on their behalf, failing which they shall have an opportunity to make an application on their own behalf.

Consent shall be requested at the time the application is lodged or, at the latest, when the personal interview with the dependant adult is conducted.

4. Member States may determine in national legislation

(a) the cases in which a minor can make an application on his/her own behalf;

(b) the cases in which the application of an unaccompanied minor has to be lodged by a representative as provided for in Article 17(1)(a);

(c) the cases in which the lodging of an application for asylum is deemed to constitute also the lodging of an application for asylum for any unmarried minor.

5. Member States shall ensure that authorities likely to be addressed by someone who wishes to make an application for asylum are able to advise that person how and where he/she may make such an application and/or may require these authorities to forward the application to the competent authority.

ê 2005/85/EC article 6

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Article 7

Applications made on behalf of dependants or minors

1. 2. Member States shall ensure that each adult having legal capacity has the right to make an application for ð international protection ï asylum on his/her own behalf.

2. 3. Member States may provide that an application may be made by an applicant on behalf of his/her dependants. In such cases Member States shall ensure that dependant adults consent to the lodging of the application on their behalf, failing which they shall have an opportunity to make an application on their own behalf.

Consent shall be requested at the time the application is lodged or, at the latest, when the personal interview with the dependant adult is conducted. ð Before consent is requested, each adult among these persons shall be informed in private of relevant procedural consequences and of his or her right to make a separate application for international protection. ï

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3. Member States shall ensure that a minor has the right to make an application for international protection either on his/her own behalf, if he/she has the legal capacity to act in procedures according to the national law of the Member State concerned, or through his/her parents or other adult family members, or an adult responsible for him/her, whether by law or by national practice of the Member State concerned, or a representative.

4. Member States shall ensure that the appropriate bodies referred to in Article 10 of Directive 2008/115/EC of the European Parliament and of the Council[10] have the right to lodge an application for international protection on behalf of an unaccompanied minor if, on the basis of an individual assessment of his/her personal situation, those bodies are of the opinion that the minor may have protection needs pursuant to Directive […/…/EU] [the Qualification Directive].

ê 2005/85/EC article 6

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5. 4. Member States may determine in national legislation:

(a) the cases in which a minor can make an application on his/her own behalf;

(b) the cases in which the application of an unaccompanied minor has to be lodged by a representative as provided for in Article 25 17 (1)(a);

(c) the cases in which the lodging of an application for ð international protection ï asylum is deemed to constitute also the lodging of an application for ð international protection ï asylum for any unmarried minor.

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Article 8

Information and counselling at border crossing points and in detention facilities

1. Member States shall ensure that information on the possibility to request international protection is available in detention facilities and at border crossing points, including transit zones, at external borders. Member States shall provide interpretation arrangements to the extent necessary to facilitate access to procedure in these areas.

2. Member States shall ensure that organisations providing advice and counselling to applicants for international protection have access to the border crossing points, including transit zones, at external borders. Member States may provide for rules covering the presence of such organizations in these areas and that such access is subject to an agreement with the competent authorities of the Member State.

ê 2005/85/EC

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Article 9 7

Right to remain in the Member State pending the examination of the application

1. Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit.

2. Member States can make an exception only where , in accordance with Articles 32 and 34, ð a person makes ï a subsequent application ð referred to in Article 41ï will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant[11] or otherwise, or to a third country, ð with the exception of the country of origin of the applicant concerned, ï or to international criminal courts or tribunals.

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3. A Member State may extradite an applicant to a third country pursuant to paragraph 2 only where the competent authorities are satisfied that an extradition decision will not result in direct or indirect refoulement in violation of international obligations of the Member State.

ê 2005/85/EC

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Article 10 8

Requirements for the examination of applications

1. Without prejudice to Article 23(4)(i), Member States shall ensure that applications for ð international protection ï asylum are neither rejected nor excluded from examination on the sole ground that they have not been made as soon as possible.

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2. When examining applications for international protection, the determining authority shall first determine whether the applicants qualify as refugees and, if not, determine whether the applicants are eligible for subsidiary protection.

ê 2005/85/EC

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3. 2. Member States shall ensure that decisions by the determining authority on applications for ð international protection ï asylum are taken after an appropriate examination. To that end, Member States shall ensure that:

(a) applications are examined and decisions are taken individually, objectively and impartially;

(b) precise and up‑to‑date information is obtained from various sources, such as the ð European Asylum Support Office and the ï United Nations High Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions;

(c) the personnel examining applications and taking decisions have the knowledge with respect to relevant standards applicable in the field of asylum and refugee law; .

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(d) the personnel examining applications and taking decisions are instructed and have the possibility to seek advice, whenever necessary, from experts on particular issues, such as medical, cultural, religious, child-related or gender issues.

ê 2005/85/EC (adapted)

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4. 3. The authorities referred to in Chapter V shall, through the determining authority or the applicant or otherwise, have access to the general information referred to in paragraph 3 2(b), necessary for the fulfilment of their task.

5. 4. Member States ð shall ï may provide for rules concerning the translation of documents relevant for the examination of applications.

Article 11 9

Requirements for a decision by the determining authority

1. Member States shall ensure that decisions on applications for ð international protection ï asylum are given in writing.

2. Member States shall also ensure that, where an application is rejected ð with regard to refugee status and/or subsidiary protection status ï, the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing.

Member States need not state the reasons for not granting refugee status in a decision where the applicant is granted a status which offers the same rights and benefits under national and Community law as the refugee status by virtue of Directive 2004/83/EC. In these cases, Member States shall ensure that the reasons for not granting refugee status are stated in the applicant's file and that the applicant has, upon request, access to his/her file.

Moreover, Member States need not provide information on how to challenge a negative decision in writing in conjunction with a decision where the applicant has been provided with this information at an earlier stage either in writing or by electronic means accessible to the applicant.

3. For the purposes of Article 7(2) 6(3), and whenever the application is based on the same grounds, Member States may take one single decision, covering all dependants ð , unless this would lead to the disclosure of particular circumstances of an applicant which could jeopardize his/her interests, in particular in cases involving gender, sexual orientation, gender identity and/or age based persecution ï.

Article 12 10

Guarantees for applicants for ð international protection ï asylum

1. With respect to the procedures provided for in Chapter III, Member States shall ensure that all applicants for ð international protection ï asylum enjoy the following guarantees:

(a) they shall be informed in a language which they ð understand or ï Ö are Õ may reasonably be supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. They shall be informed of the time‑frame, as well as the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive […/…/EU] [the Qualification Directive] 2004/83/EC ð , as well as of the consequences of an explicit or implicit withdrawal of the application ï. This information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 13 11;

(b) they shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary. Member States shall consider it necessary to give these services at least when the determining authority calls upon the applicant Ö is Õ to be interviewed as referred to in Articles 14, 15, 12 and 13 ð 16, 17 and 34 ï and appropriate communication cannot be ensured without such services. In this case and in other cases where the competent authorities call upon the applicant, these services shall be paid for out of public funds;

(c) they shall not be denied the opportunity to communicate with the UNHCR or with any other organisation ð providing legal advice or counselling to applicants for international protection in accordance with the national law of ï working on behalf of the UNHCR in the territory of the Member State pursuant to an agreement with that Member State;

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(d) they and, if applicable, their legal advisers shall not be denied access to the information referred to in Article 10(3)(b), where the determining authority takes that information into consideration for the purpose of taking a decision on their application;

ê 2005/85/EC (adapted)

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(e d) they shall be given notice in reasonable time of the decision by the determining authority on their application for ð international protection ï asylum. If a legal adviser or other counsellor is legally representing the applicant, Member States may choose to give notice of the decision to him/her instead of to the applicant for ð international protection ï asylum;

(f e) they shall be informed of the result of the decision by the determining authority in a language that they ð understand or ï Ö are Õ may reasonably be supposed to understand when they are not assisted or represented by a legal adviser or other counsellor and when free legal assistance is not available. The information provided shall include information on how to challenge a negative decision in accordance with the provisions of Article 11(2) 9(2).

2. With respect to the procedures provided for in Chapter V, Member States shall ensure that all applicants for asylum enjoy equivalent guarantees to the ones referred to in paragraph 1(b), (c) ð , (d) ï and (e d) of this Article.

Article 13 11

Obligations of the applicants for ð international protection ï asylum

1. ð Member States shall impose upon applicants for international protection the obligation to cooperate with the competent authorities with a view to establishing their identity and other elements referred to in Article 4(2) of Directive […/…/EU] [the Qualification Directive]. ï Member States may impose upon applicants for asylum ð other ï obligations to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application.

2. In particular, Member States may provide that:

(a) applicants for asylum are required to report to the competent authorities or to appear before them in person, either without delay or at a specified time;

(b) applicants for asylum have to hand over documents in their possession relevant to the examination of the application, such as their passports;

(c) applicants for asylum are required to inform the competent authorities of their current place of residence or address and of any changes thereof as soon as possible. Member States may provide that the applicant shall have to accept any communication at the most recent place of residence or address which he/she indicated accordingly;

(d) the competent authorities may search the applicant and the items he/she carries with him/her ð , provided the search is carried out by a person of the same sex ï ;

(e) the competent authorities may take a photograph of the applicant; and

(f) the competent authorities may record the applicant's oral statements, provided he/she has previously been informed thereof.

Article 14 12

Personal interview

1. Before a decision is taken by the determining authority, the applicant for asylum shall be given the opportunity of a personal interview on his/her application for ð international protection ï asylum with a person competent under national law to conduct such an interview. ð Interviews on the substance of the application for international protection shall be conducted by the personnel of the determining authority. ï

Member States may also give the opportunity of a personal interview to each dependant adult referred to in Article 6(3).

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Where a large number of third country nationals or stateless persons simultaneously request international protection, which makes it impossible in practice for the determining authority to conduct timely interviews on the substance of an application, Member States may provide that the personnel of another authority be temporarily involved in conducting such interviews. In such cases, the personnel of that authority shall receive in advance the necessary training which shall include the elements listed in Article 6(4)(a) to (e) of Regulation (EU) No 439/2010 and in Article 18(5) of this Directive.

Where a person has made an application for international protection on behalf of his/her dependants, each adult concerned shall be given the opportunity of a personal interview.

ê 2005/85/EC (adapted)

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Member States may determine in national legislation the cases in which a minor shall be given the opportunity of a personal interview.

2. The personal interview on the substance of the application may be omitted where:

(a) the determining authority is able to take a positive decision ð with regard to refugee status ï on the basis of evidence available; or

(b) the competent authority has already had a meeting with the applicant for the purpose of assisting him/her with completing his/her application and submitting the essential information regarding the application, in terms of Article 4(2) of Directive 2004/83/EC; or

(c) the determining authority, on the basis of a complete examination of information provided by the applicant, considers the application to be unfounded in cases where the circumstances mentioned in Article 23(4)(a), (c), (g), (h) and (j) apply.

3. The personal interview may also be omitted where

(b) it is not reasonably practicable, in particular where the ð determining ï competent authority is of the opinion that the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his/her control. When in doubt, ð the determining authority shall consult a medical expert to establish whether the condition that makes the applicant unfit or unable to be interviewed is temporary or permanent ï Member States may require a medical or psychological certificate.

Where Ö a personal interview is not conducted Õ the Member State does not provide the applicant with the opportunity for a personal interview pursuant to point (b) this paragraph, or where applicable, Ö with Õ to the dependant, reasonable efforts shall be made to allow the applicant or the dependant to submit further information.

3. 4. The absence of a personal interview in accordance with this Article shall not prevent the determining authority from taking a decision on an application for ð international protection ï asylum.

4. 5.. The absence of a personal interview pursuant to paragraph 2(b) and (c) and paragraph 3 shall not adversely affect the decision of the determining authority.

5. 6. Irrespective of Article 28(1) 20(1), Member States, when deciding on the application for ð international protection ï asylum, may take into account the fact that the applicant failed to appear for the personal interview, unless he/she had good reasons for the failure to appear.

Article 15 13

Requirements for a personal interview

1. A personal interview shall normally take place without the presence of family members unless the determining authority considers it necessary for an appropriate examination to have other family members present.

2. A personal interview shall take place under conditions which ensure appropriate confidentiality.

3. Member States shall take appropriate steps to ensure that personal interviews are conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner. To that end, Member States shall:

(a) ensure that the person who conducts the interview is sufficiently competent to take account of the personal ð and ï or general circumstances surrounding the application, including the applicant's cultural origin ð , gender, sexual orientation, gender identity ï or vulnerability ð within the meaning of Article 22 of Directive […/…/EU] [the Reception Conditions Directive] ï , insofar as it is possible to do so; and

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(b) wherever possible, provide for the interview with the applicant to be conducted by a person of the same sex if the applicant concerned so requests;

ê 2005/85/EC (adapted)

ð new

(c b) select an ð competent ï interpreter who is able to ensure appropriate communication between the applicant and the person who conducts the interview. The communication Ö shall Õ need not necessarily take place in the language preferred by the applicant for asylum Ö unless Õ if there is another language which he/she may reasonably be supposed to understands and in which he/she is able to communicate ð clearly ï. ð Wherever possible, Member States shall provide an interpreter of the same sex if the applicant so requests ï;

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(d) ensure that the person who conducts an interview on the substance of an application for international protection does not wear a military or law enforcement uniform;

(e) ensure that interviews with minors are conducted in a child appropriate manner.

ê 2005/85/EC

4. Member States may provide for rules concerning the presence of third parties at a personal interview.

5. This Article is also applicable to the meeting referred to in Article 12(2)(b).

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Article 16

Content of a personal interview

When conducting a personal interview on the substance of an application for international protection, the determining authority shall ensure that the applicant is given an adequate opportunity to present elements needed to substantiate the application in accordance with Article 4 of Directive […/…/EU] [the Qualification Directive] as completely as possible. This shall include the opportunity to give an explanation regarding elements which may be missing and/or any inconsistencies or contradictions in his/her statements.

ê 2005/85/EC

Article 14

Status of the report of a personal interview in the procedure

1. Member States shall ensure that a written report is made of every personal interview, containing at least the essential information regarding the application, as presented by the applicant, in terms of Article 4(2) of Directive 2004/83/EC.

2. Member States shall ensure that applicants have timely access to the report of the personal interview. Where access is only granted after the decision of the determining authority, Member States shall ensure that access is possible as soon as necessary for allowing an appeal to be prepared and lodged in due time.

3. Member States may request the applicant's approval of the contents of the report of the personal interview.

Where an applicant refuses to approve the contents of the report, the reasons for this refusal shall be entered into the applicant's file.

The refusal of an applicant to approve the contents of the report shall not prevent the determining authority from taking a decision on his/her application.

4. This Article is also applicable to the meeting referred to in Article 12(2)(b).

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Article 17

Report and recording of personal interviews

1. Member States shall ensure that a thorough report containing all substantial elements is made of every personal interview.

2. Member States may provide for audio or audio-visual recording of the personal interview. In this case, Member States shall ensure that the recording of the personal interview is annexed to the report.

3. Member States shall ensure that the applicant has the opportunity to make comments and/or provide clarifications with regard to any mistranslations or misconceptions appearing in the report, at the end of the personal interview or within a specified time limit before the determining authority takes a decision. To that end, Member States shall ensure that the applicant is fully informed of the content of the report, with the assistance of an interpreter if necessary. Member States shall then request the approval of the applicant on the content of the report.

Member States need not request the applicant's approval on the content of the report if the interview is recorded in accordance with paragraph 2 and if the recording is admissible as evidence in procedures referred to in Chapter V.

4. Where an applicant refuses to approve the content of the report, the reasons for this refusal shall be entered into the applicant's file.

The refusal of an applicant to approve the content of the report shall not prevent the determining authority from taking a decision on the application.

5. Applicants shall not be denied access to the report and, where applicable, the recording, before the determining authority takes a decision.

Article 18

Medical reports

1. Member States shall allow an applicant to have a medical examination carried out in order to submit a medical certificate to the determining authority in support of his/her statements regarding past persecution or serious harm. Member States may require the applicant to submit the results of the medical examination to the determining authority within a reasonable time limit after he/she has been informed about his/her rights pursuant to this Article. If the applicant fails to submit the results of the medical examination within that time limit without good reasons, it shall not prevent the determining authority from taking a decision on the application for international protection.

2. Without prejudice to paragraph 1, in cases where the determining authority considers that there is reason to believe that the applicant's ability to be interviewed and/or to give accurate and coherent statements does not exist or is limited as a results of post-traumatic stress disorder, past persecution or serious harm, it shall ensure that a medical examination is carried out with the applicant's consent. The applicant's refusal to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for international protection.

3. Member States shall provide for relevant arrangements in order to ensure that impartial and qualified medical expertise is made available for the purpose of medical examinations referred to in paragraph 2.

4. Member States shall provide for further rules and arrangements for identification and documentation of symptoms of torture and other forms of physical, sexual or psychological violence, relevant to the application of this Article.

5. Member States shall ensure that the persons interviewing applicants pursuant to this Directive receive training with regard to the awareness of symptoms of torture and of medical problems which could adversely affect the applicant's ability to be interviewed.

6. The results of medical examinations referred to in paragraphs 1 and 2 shall be assessed by the determining authority along with other elements of the application.

Article 19

Provision of legal and procedural information free of charge in procedures at first instance

1. Member States shall ensure that legal and procedural information is provided free of charge to applicants, on request, in procedures at first instance provided for in Chapter III. This shall include, at least, the provision of information on the procedure in the light of the applicant's particular circumstances and explanations of reasons in fact and in law in the event of a negative decision.

2. The provision of legal and procedural information free of charge shall be subject to the conditions laid down in Article 21.

Article 20

Free legal assistance and representation in appeals procedures

ê 2005/85/EC article 15(2)

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1. In the event of a negative decision by the determining authority, Member States shall ensure that free legal assistance and/or representation is granted on request subject to the provisions of paragraph 3 ð in appeals procedures provided for in Chapter V. This shall include, at least, the preparation of the required procedural documents and participation in the hearing before the court or tribunal of first instance on behalf of the applicant. ï

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2. Member States may also provide free legal assistance and/or representation in procedures at first instance provided for in Chapter III. In such cases, Article 19 shall not apply.

3. Member States may provide that free legal assistance and representation not be granted if the applicant's appeal is considered by a court or tribunal to have no tangible prospect of success.

In such a case, Member States shall ensure that legal assistance and representation is not arbitrarily restricted and that the applicant's effective access to justice is not hindered.

4. Free legal assistance and representation shall be subject to the conditions laid down in Article 21.

Article 21

Conditions for the provision of legal and procedural information free of charge and free legal assistance and representation

1. Member States may provide that the legal and procedural information referred to in Article 19 and the legal assistance and representation referred to in Article 20 are provided by non-governmental organisations, government officials, or specialised services of the State.

ê 2005/85/EC article 15 (adapted)

ð new

1. Member States shall allow applicants for asylum the opportunity, at their own cost, to consult in an effective manner a legal adviser or other counsellor, admitted or permitted as such under national law, on matters relating to their asylum applications.

2. 3. Member States may provide in their national legislation that ð the provision of legal and procedural information free of charge referred to in Article 19 and ï free legal assistance and/or representation Ö referred to in Article 20 Õ Ö are Õ is granted:

(a) only for procedures before a court or tribunal in accordance with Chapter V and not for any onward appeals or reviews provided for under national law, including a rehearing of an appeal following an onward appeal or review; and/or

(a b) only to those who lack sufficient resources; and/or

(b c) only Ö through the services provided by Õ to legal advisers or other counsellors specifically designated by national law to assist and/or represent applicants for ð international protection ï asylum. and/or

(d) only if the appeal or review is likely to succeed.

Member States shall ensure that legal assistance and/or representation granted under point (d) is not arbitrarily restricted.

3. 4. Rules concerning the modalities for filing and processing requests for ð legal and procedural information under Article 19 and ï legal assistance and/or representation Ö under Article 20 Õ may be provided by Member States.

4. 5. Member States may also:

(a) impose monetary and/or time limits on the ð provision of legal and procedural information free of charge referred to in Article 19 and the ï provision of free legal assistance and/or representation Ö referred to in Article 20 Õ , provided that such limits do not arbitrarily restrict access to ð the provision of legal and procedural information and ï legal assistance and/or representation;

(b) provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance.

5. 6. Member States may demand to be reimbursed wholly or partially for any expenses granted if and when the applicant's financial situation has improved considerably or if the decision to grant such benefits was taken on the basis of false information supplied by the applicant.

ê 2005/85/EC article 15(1) (adapted)

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Article 22

Right to legal assistance and representation at all stages of the procedure

1. Member States shall allow Applicants applicants for asylum Ö shall be given Õ the opportunity, at their own cost, to consult Ö, at their own cost, Õ in an effective manner a legal adviser or other counsellor, admitted or permitted as such under national law, on matters relating to their asylum applications ð for international protection, at all stages of the procedure, including following a negative decision ï .

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2. Member States may allow non-governmental organisations to provide legal assistance and/or representation to applicants for international protection in procedures provided for in Chapter III and Chapter V.

ê 2005/85/EC (adapted)

ð new

Article 23 16

Scope of legal assistance and representation

1. Member States shall ensure that a legal adviser or other counsellor admitted or permitted as such under national law, and who assists or represents an applicant for ð international protection ï asylum under the terms of national law, shall enjoy access to Ö the Õ such information in the applicant's file ð upon which a decision is or will be made ï as is liable to be examined by the authorities referred to in Chapter V, insofar as the information is relevant to the examination of the application.

Member States may make an exception where disclosure of information or sources would jeopardise national security, the security of the organisations or person(s) providing the information or the security of the person(s) to whom the information relates or where the investigative interests relating to the examination of applications for of ð international protection ï asylum by the competent authorities of the Member States or the international relations of the Member States would be compromised. In these cases, Ö Member States shall: Õ

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(a) grant access to the information or sources in question to a legal adviser or counsellor who has undergone a security check or, at least, to specialised services of the State that are allowed under national law to represent the applicant for this specific purpose, insofar as the information is relevant to the examination of the application or taking a decision to withdraw international protection;

ê 2005/85/EC (adapted)

ð new

(b) Ö make Õ access to the information or sources in question shall be available to the authorities referred to in Chapter V, except where such access is precluded in cases of national security.

2. Member States shall ensure that the legal adviser or other counsellor who assists or represents an applicant for asylum has access to closed areas, such as detention facilities and transit zones, for the purpose of consulting that applicant ð , in accordance with Article 10(4) and Article 18(2)(b) and (c) of Directive […/…/EU] [the Reception Conditions Directive] ï. Member States may only limit the possibility of visiting applicants in closed areas where such limitation is, by virtue of national legislation, objectively necessary for the security, public order or administrative management of the area, or in order to ensure an efficient examination of the application, provided that access by the legal adviser or other counsellor is not thereby severely limited or rendered impossible.

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3. Member States shall allow the applicant to bring to the personal interview a legal adviser or other counsellor admitted or permitted as such under national law.

ê 2005/85/EC

ð new

4. 3. Member States may provide rules covering the presence of legal advisers or other counsellors at all interviews in the procedure, without prejudice to this Article or to Article 25(1)(b) 17(1)(b).

4. Member States may provide that the applicant is allowed to bring with him/her to the personal interview a legal adviser or other counsellor admitted or permitted as such under national law.

Member States may require the presence of the applicant at the personal interview, even if he/she is represented under the terms of national law by such a legal adviser or counsellor, and may require the applicant to respond in person to the questions asked.

The absence of a legal adviser or other counsellor shall not prevent the competent authority from conducting the personal interview with the applicant ð , without prejudice to Article 25(1)(b) ï.

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Article 24

Applicants in need of special procedural guarantees

1. Member States shall ensure that applicants in need of special procedural guarantees are identified in due time. To that end, Member States may use the mechanism provided for in Article 22 of Directive […/…/EU] [the Reception Conditions Directive].

Member States shall ensure that this Article also applies if it becomes apparent at a later stage in the procedure that an applicant is in need of special procedural guarantees.

2. Member States shall take appropriate measures to ensure that applicants in need of special procedural guarantees are granted sufficient ti