Commission staff working document accompanying the proposal for a directive of the European Parliament and of the Council 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 - Impact Assessment {COM(2009) 551} {SEC(2009) 1374} /* SEC/2009/1373 final */





en (...PICT...)|COMMISSION OF THE EUROPEAN COMMUNITIES| Brussels, 21.10.2009 SEC(2009) 1373 final COMMISSION STAFF WORKING DOCUMENT Accompanying the Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 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 Impact Assessment {COM(2009) 551} {SEC(2009) 1374} 1 PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 4 (...) 1.1 Background 4 (...) 1.1.1 Policy context 4 (...) 1.1.2 Organization and timing, consultation and expertise 6 (...) 1.2 The Impact Assessment Board 7 (...) 2 PROBLEM DEFINITION 8 (...) 2.1 Scope of the problem 8 (...) 2.2 What is the issue or the problem that may require action? 8 (...) 2.2.1 Harmonization on the basis of minimum standards: meaning, main elements and objectives 9 (...) 2.2.2 Problems with the standards set down by the current Directive 10 (...) 2.2.3 Statistical evidence of insufficient harmonization 13 (...) 2.2.4 The effect of insufficient harmonization on secondary movements 14 (...) 2.2.5 Insufficient harmonization as one of the factors for the unequal distribution of asylum seekers 15 (...) 2.2.6 Evidence for poor first instance decision-making 15 (...) 2.2.7 Difficulties in forecasting and quantifying costs in the asylum system 16 (...) 2.2.8 The economic situation 16 (...) 2.3 The Baseline scenario: "How would the problem evolve, all things being equal?" 17 (...) 2.4 Does the EU have the power to act? 18 (...) 2.4.1 The EU's right to act 18 (...) 2.4.2 Added value of EU action and respect for the principle of subsidiarity 18 (...) 3 OBJECTIVES 19 (...) 3.1 Global objective 19 (...) 3.2 Specific objectives 20 (...) 3.3 Operational objectives 20 (...) 4 POLICY OPTIONS 21 (...) 4.1 Status Quo 21 (...) 4.2 To limit the broad interpretation of "actors of protection" in line with the standards of the Geneva Convention 21 (...) 4.3 To limit the broad interpretation of the concept of "internal protection" in line with the standards of the Geneva Convention and the ECHR 22 (...) 4.4 To ensure a more inclusive interpretation of the concept "particular social group" in line with the standards of the Geneva Convention 24 (...) 4.5 To approximate the rights of beneficiaries of subsidiary protection to those of refugees 26 (...) 4.5.1 Duration of residence permits 26 (...) 4.5.2 Access to employment 27 (...) 4.5.3 Access to integration facilities 28 (...) 4.6 To enhance the integration of beneficiaries of international protection taking into account their specific needs 29 (...) 4.6.1 To enhance access to procedures for recognition of qualifications 29 (...) 4.6.2 To enhance access to vocational training and employment 32 (...) 4.6.3 To enhance access to integration facilities 33 (...) 4.6.4 To enhance access to accommodation 34 (...) 4.7 To better ensure the right of beneficiaries of international protection for respect of family life 36 (...) 4.8 Summary of further non contentious policy options selected 38 (...) 5 Presentation of the Preferred Policy Option 39 (...) 6 Assessment of Preferred Policy Option 39 (...) 6.1 EU added value 39 (...) 6.2 Proportionality 39 (...) 6.3 Summary of relevance, feasibility and expected impacts 40 (...) 6.4 Potential magnitude of financial impacts 44 (...) 6.4.1 Potential costs 44 (...) 6.4.2 Potential savings 48 (...) 6.4.3 Assistance from the European Refugee Fund and from the Asylum Support Office 49 (...) 6.4.4 Longer term benefits of successful integration 50 (...) 6.5 Tackling abuse of the asylum system 50 (...) 7 Monitoring and Evaluation 51 (...) Lead DG: Justice, Freedom and Security 1 PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 1.1 Background 1.1.1 Policy context Creating a Common European Asylum System (CEAS) as a constituent part of an Area of Freedom, Security and Justice emerged from the idea of making the EU a single protection area for persons in need of protection, based on the full and inclusive application of the 1951 Geneva Convention relating to the Status of Refugees ("Geneva Convention") and on the common humanitarian values shared by all Member States (MS).The objective pursued is a level playing field, where persons genuinely in need of protection are guaranteed access to a high level of protection under equivalent conditions in all MS and where those found not to be in need of protection are treated fairly and efficiently. As set out in the Tampere European Council Conclusions and confirmed in the Hague Programme, the objectives of the CEAS consist in the establishment of a common asylum procedure and a uniform protection status valid throughout the EU. In line with the Tampere Conclusions, the first stage of the creation of the CEAS involved harmonising MS' legal frameworks on the basis of common minimum standards. Considerable progress between 1999 and 2006 included the adoption of the four main legislative instruments which make up the current acquis. Council Directive 2004/83/EC (the " Qualification Directive") defined common criteria for the identification of persons in need of international protection and ensured that at least a minimum level of benefits is available for these persons in all MS. The Hague Programme invited the Commission to evaluate the first-phase asylum instruments and to submit the second-phase instruments to the Council and the European Parliament before the end of 2010. On the basis of this evaluation, shortcomings have been identified and it is clear that the agreed common minimum standards have not created the desired level playing field. In the Policy Plan on Asylum Policy Plan on Asylum ‘An integrated approach to protection across the EU’ COM(2008) 360 ("Policy Plan") of 17 June 2008, the Commission proposed the completion of the second phase of the CEAS through raising the standards of protection and ensuring their consistent application across the EU. The European Pact on Immigration and Asylum ("Pact"), adopted by the European Council on 17 October 2008, provided further political endorsement and impetus to this objective, by calling for initiatives to complete the establishment of the CEAS with a view to offering a higher degree of protection.[1] Policy Plan on Asylum ‘An integrated approach to protection across the EU’ COM(2008) 360 In accordance with the roadmap set out in the Policy Plan, the Commission adopted, on 3 December 2008, proposals for the amendment of three first-phase instruments, e.g. the Dublin Regulation, the Eurodac Regulation and the Reception Conditions Directive Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (COM (2008) 815 final/2); Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person ( COM (2008) 820 final/2); Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] ( COM (2008) 825 final) and Proposal for a Directive of the European Parliament and the Council laying down minimum standards for the reception of asylum seekers (COM 2008(815 final/2) , and, on 18 February 2009, a proposal for the establishment of a European Asylum Support Office ("EASO") Proposal for a Regulation of the European Parliament and of the Council establishing a European Asylum Support Office (COM (2009) 66 final) . Further measures to be taken in the short-term in accordance with the Policy Plan include a proposal for the amendment of the Asylum Procedures Directive Council Directive 2005/85/EC of 1 December 2005, on procedures in MS for granting and withdrawing refugee status (OJ L 326, page 13) , to be adopted together with the proposal for the amendment of the Qualification Directive, as well as measures to reinforce the external asylum dimension, including by establishing a joint EU resettlement scheme and further developing Regional Protection Programmes. [2][3][4] Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (COM (2008) 815 final/2); Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person ( COM (2008) 820 final/2); Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] ( COM (2008) 825 final) and Proposal for a Directive of the European Parliament and the Council laying down minimum standards for the reception of asylum seekers (COM 2008(815 final/2) Proposal for a Regulation of the European Parliament and of the Council establishing a European Asylum Support Office (COM (2009) 66 final) Council Directive 2005/85/EC of 1 December 2005, on procedures in MS for granting and withdrawing refugee status (OJ L 326, page 13) There are several reasons why, in the present settings, a revision of the Directive can be realistically expected to achieve higher and more harmonised protection standards than those established in the first phase: a) As will be demonstrated in detail below, the restrictive interpretation of human rights instruments forming the basis of the existing Directive's standards, the ambiguity, the possibilities for derogation and the low level of harmonization which characterize the Directive are due, to a large extent, to the unanimity requirement for its adoption. A fundamental difference in the political and legal framework for the adoption of the second-phase Directive is the applicability of Article 251 TEC (‘the co-decision procedure’), which means qualified majority voting in the Council and a stronger role for the European Parliament as co-legislator. b) Negotiations in the 2 nd phase will start from a solid basis: certain progress has already been accomplished and the amending proposal is based on a thorough assessment of the implementation of the Directive , taking into account the results of the evaluations and the consultations with MS. On this basis, the amendments proposed seek to remedy the deficiencies identified and to address the concerns expressed by the MS themselves . For instance, the MS themselves have acknowledged the difficulties involved in implementing some of the vague and ambiguous provisions of the Directive; thus, the clarification of concepts and removal of current ambiguities is expected to result in streamlining, facilitating and enhancing the quality of the first-instance examinations of asylum applications, as well as in reducing appeals. Similarly, in the Pact, the European Council pointed to the persistence of wide disparities amongst MS in the granting of protection and the form of protection granted as the main problem to be addressed and called for a higher degree of protection. c) A further factor expected to facilitate the adoption of the higher standards proposed is that they correspond to a large extent to recent developments in the case-law of the ECtHR and the ECJ , as well as in national jurisprudences. The standards set in the relevant rulings do not suffice as such to address the problems and inconsistencies identified, but can provide the basis for the establishment of acquis rules benefitting from the accessibility and coherent application across the EU guaranteed by the Community legal and institutional framework d) Furthermore, the proposed legislative harmonisation based on high standards should not be seen in isolation but rather as a necessary complement, a piece to be added in a puzzle of EU policies and measures: - The revision of the Qualification Directive is in particular complementary to the revision of the Asylum Procedures Directive. The revision of the latter Directive aims at providing asylum authorities with procedural tools which can adequately back up the correct and consistent implementation of the substantive criteria of the Qualification Directive and more generally at boosting the overall capacity of asylum authorities to make robust decisions and to efficiently manage the asylum process , through a wide range of frontloading measures. - At the same time, by enabling authorities to process claims more rapidly while reaching solid decisions and thus to better deal with abuse, the Qualification Directive fits in the broader context of measures taken to improve the credibility of the asylum process notably by increasing the effectiveness of return policies, in particular through the entry into force of the "Return Directive" and the creation of the European Return Fund. - Ensuring that asylum seekers have equal access to protection throughout the EU through further harmonization of rules and practices regarding the granting of protection, as envisaged by the revision, is a prerequisite for the effective functioning and the credibility of the Dublin System . As demonstrated in the Commission's proposal for its revision, the underlying principles of this System have been considered worth to uphold in the second phase. However, it has become clear that further efforts towards the achievement of a level-playing field are urgently needed with a view to ensuring that the Dublin System can operate in a fair and efficient manner. - The proposals for the revision of the Dublin Regulation and the Reception Conditions Directive contain elements regarding, for instance, the respect of the principle of non-discrimination and other fundamental rights or broadening the definition of family members which should be reflected in the revision of the Qualification Directive in order to ensure coherence in the instruments of the second-phase acquis . - With a view to reducing secondary movements, the proposed revision of the Qualification Directive aims at addressing one of the relevant drivers, namely that asylum seekers have different chances of finding protection and the possibility to obtain, once recognised, different levels of rights in the different MS. It is thus part of a broader effort made in the second phase to reduce secondary movements : other drivers relating to the divergences in reception conditions and asylum procedures are being addressed in parallel, through the revision of the Reception Conditions Directive and the Asylum Procedures Directive. The approximation of national practices will also increase as a result of enhanced practical cooperation through the creation of the EASO. In parallel, as a means of addressing the consequences of the uneven distribution of asylum seekers, further measures are being currently developed to ensure that responsibility for processing asylum applications and granting protection in the EU is shared more equitably, notably by assisting, based on the principle of solidarity, those MS which because of their geographical position are faced with particular pressures. 1.1.2 Organization and timing, consultation and expertise The Commission presented in June 2007 a Green Paper COM (2007) 301 on possible options for the second phase of the CEAS. The contributions received from a wide range of stakeholders put across a broad range of views and ideas on possible amendments to the Directive. The Commission has collected information about the transposition and implementation of the Directive through its monitoring activities and has taken into account several studies Further studies include: UNHCR, "Asylum in the European Union, A study on the implementation of the Qualification Directive", November 2007 http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=473050632&page=search (the "UNHCR study"); ELENA/ECRE, "The impact of the EU Qualification Directive on International protection", October 2008, http://www.ecre.org/files/ECRE_QD_study_full.pdf.( "ECRE study"); France Terre d'Asile, "Asile La protection subsidiaire en Europe: Un mosaïque de droits", Les cahiers du social no 18, Septembre 2008; Dutch Refugee Council/ECRE, ‘Networking on the Transposition of the Qualification Directive’, December 2008, http://www.qualificationdirective.eu/research ; Nijmegen University, "The Qualification Directive: Central themes, Problem issues, and Implementation in selected MS", Karin Zwaan (ed), 2007 evaluating the implementation of the Directive and notably a report carried out, on behalf of the Commission, by the academic network Odysseus (the "Odysseus report") Available at http://ec.europa.eu/justice_home/doc_centre/asylum/studies/wai/doc_asylum_studies_en.htm . Moreover, an external study GHK, Impact assessment studies on The future development of measures on the qualification and status of third country nationals or stateless persons as persons in need of international protection and on the content of the protection granted, based on Council Directive 2004/83/EC and The future development of measures on procedures in MS for granting and withdrawing refugee status, based on Council Directive 2005/85/EC, Multiple framework service contract JLS/2006/A1/004. was conducted on behalf of the Commission, analysing the existing evidence and results of consultation and questionnaires and further data was collected from academic publications and from commentaries by UNHCR and civil society stakeholders. [5][6][7][8] COM (2007) 301 Further studies include: UNHCR, "Asylum in the European Union, A study on the implementation of the Qualification Directive", November 2007 http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=473050632&page=search (the "UNHCR study"); ELENA/ECRE, "The impact of the EU Qualification Directive on International protection", October 2008, http://www.ecre.org/files/ECRE_QD_study_full.pdf.( "ECRE study"); France Terre d'Asile, "Asile La protection subsidiaire en Europe: Un mosaïque de droits", Les cahiers du social no 18, Septembre 2008; Dutch Refugee Council/ECRE, ‘Networking on the Transposition of the Qualification Directive’, December 2008, http://www.qualificationdirective.eu/research ; Nijmegen University, "The Qualification Directive: Central themes, Problem issues, and Implementation in selected MS", Karin Zwaan (ed), 2007 Available at http://ec.europa.eu/justice_home/doc_centre/asylum/studies/wai/doc_asylum_studies_en.htm GHK, Impact assessment studies on The future development of measures on the qualification and status of third country nationals or stateless persons as persons in need of international protection and on the content of the protection granted, based on Council Directive 2004/83/EC and The future development of measures on procedures in MS for granting and withdrawing refugee status, based on Council Directive 2005/85/EC, Multiple framework service contract JLS/2006/A1/004. The Commission organised several experts' meetings to discuss possible amendments to the Directive: a meeting with judges, academics, UNHCR and a selected number of experts from MS on 26.06.2008; two meetings with MS (one at experts' level on 19.11.2008 and another one in the context of the Committee on Immigration and Asylum on 12.12.2008) and two meetings with NGOs, on 8.1.2009 and 23.2.2009 The main findings of all these consultations are presented in Annex 2. . The report also incorporates comments submitted during two meetings of the Inter-service Steering Group, on 18.12.2008 and 18.2.2009. In addition, bilateral consultations took place with DG EMPL, MARKT and EAC as well as with the Legal Service.[9] The main findings of all these consultations are presented in Annex 2. 1.2 The Impact Assessment Board The Impact Assessment (IA) was revised to take into account the opinions issued by the Impact Assessment Board on 6 April and 28 July 2009 The opinion will be available at: http://ec.europa.eu/governance/impact/cia_2009_en.htm . . In particular, the IA explains to what extent the revision of legal norms can address the problem of low and diverse standards and how the harmonisation of minimum standards can contribute to a fairer burden-sharing among MS. Furthermore, it demonstrates more clearly the proportionality of the envisaged measures, it systematically refers to the number of MS potentially affected so as to provide indications of the magnitude of the implementation costs and further develops the monitoring and evaluation arrangements. In addition, the IA explains in a more comprehensive manner the different factors contributing to insufficient harmonisation and their interrelation with the flows of asylum seekers towards the different Member States. Finally, it specifically refers, for the different policy issues addressed, to the existing human rights standards set by EU or international law and demonstrates the necessity of EU action in those areas.[10] The opinion will be available at: http://ec.europa.eu/governance/impact/cia_2009_en.htm . 2 PROBLEM DEFINITION 2.1 Scope of the problem Following an increase between 1996 and 2002, fuelled by conflicts in former Yugoslavia, in the period 2003-2006 numbers of asylum seekers in the EU27 decreased sharply: from 344,800 asylum applications in 2003 to 197,410 in 2006 (-42.7%) See t able new asylum applications 1987-2007 in Annex 3 . This decreasing trend stopped in 2007, as numbers of applications rose to 222,170 (+12%), mainly due to the inflow of Iraqi asylum seekers. In 2008 there was a further increase (+8%) compared to 2007, as the number of applications reached 257,375 See Table in Annex 4 . Even so, asylum seekers represent a small fraction of overall migration flows to the EU (estimated at 1.5 -2 m immigrants per year). [11][12] See t able new asylum applications 1987-2007 in Annex 3 See Table in Annex 4 The number of persons residing with a (refugee or other, humanitarian) protection status in the EU at the end of 2007 was close to 1.4 m , amounting thus to approximately 7.5% of the population of legally residing third country nationals (estimated at 18.5m) and representing 0.3% of the total EU population in 2007 (estimated at 497m). It should also be pointed out that this 1,4m represents a small part of the worldwide population of refugees , estimated at 11.4 m in 2007 UNHCR Annual Statistics Report 2007, available at www.unhcr.org/statistics . [13] UNHCR Annual Statistics Report 2007, available at www.unhcr.org/statistics 2.2 What is the issue or the problem that may require action? The flows of asylum seekers across the EU and the ways that individual MS choose to address these flows and handle asylum applications are interrelated in complex ways. The diversity of national asylum legislations and practices was recognised from the beginning as one of the main factors affecting asylum flows Further factors include linguistic and cultural links, family ties, the presence of immigrant communities as well as geography. Indeed, as will be demonstrated below under section 2.2.5, some MS receive very high numbers of asylum seekers due to their geographical position. The different measures aimed at helping those MS adequately deal with these flows relate to financial solidarity, to burden sharing through relocation of beneficiaries of international protection and to tasks to be assigned to the future EASO. . Indeed, it was precisely with a view to limiting the impact of this factor on asylum flows the Tampere programme called for the adoption of legislative instruments harmonizing national asylum rules on the basis of minimum standards. [14] Further factors include linguistic and cultural links, family ties, the presence of immigrant communities as well as geography. Indeed, as will be demonstrated below under section 2.2.5, some MS receive very high numbers of asylum seekers due to their geographical position. The different measures aimed at helping those MS adequately deal with these flows relate to financial solidarity, to burden sharing through relocation of beneficiaries of international protection and to tasks to be assigned to the future EASO. However, as will be demonstrated below, the adoption of such standards was not sufficient in itself: divergences in asylum legislations and practices persist, despite the first phase of harmonization. There are several causes for these persistent divergences and, as will be demonstrated below, in sections 2.2.2 and 2.3, they are interlinked For instance, the vagueness, the ambiguity and the gaps in the Directive also make it difficult to substantiate infringement cases in cases of incomplete or incorrect implementation. . These factors in clude:[15] For instance, the vagueness, the ambiguity and the gaps in the Directive also make it difficult to substantiate infringement cases in cases of incomplete or incorrect implementation. - the incomplete and/or incorrect transposition and application of the acquis' rules, including the implementation of lower standards than those established by the acquis ; - the implementation of higher standards than those established by the acquis; - the vagueness and ambiguity of the acquis' standards. The Commission is constantly and systematically monitoring the implementation of the asylum acquis by MS and any problems identified as flowing from the incomplete transposition or the incorrect implementation of these rules, including the implementation of lower standards, can only be addressed by infringement procedures. Regarding the possibility for MS to go beyond the minimum standards prescribed by the acquis, as will be explained in more detail below under section 2.2.1, this possibility reflects the sovereign right of States to go beyond the minimum core of obligations established by human rights instruments and it is fundamental and inherent in human rights rules. Accordingly, all asylum Directives allow MS to introduce or retain more favourable standards, in so far as those standards are compatible with their rules. This possibility cannot be precluded and the ensuing divergences cannot be addressed by legislative measures. It is the European Court of Justice that, by applying this compatibility test, could eventually impose certain limits and define more clearly which more favourable national standards may be considered admissible. However, the last factor, i.e. the vagueness and ambiguity of the acquis' standards themselves can (and indeed can only) be remedied by the amendment o f the first-phase legislation as called for by the Hague Programme. 2.2.1 Harmonization on the basis of minimum standards: meaning, main elements and objectives Pursuant to Article 63 TEC, measures on qualification for refugee status and subsidiary protection are confined to setting minimum standards . This means that they aim at a certain degree of harmonization - and thus not at full harmonization - by establishing common denominators which are binding on all MS . However, they do not preclude MS from maintaining or introducing standards which are more favourable to the beneficiary of the EU legislation, provided that such alternative national standards do not annihilate the objective of harmonization. This approach is particularly relevant in the field of asylum. Indeed, the whole human rights edifice is based on international law instruments establishing a common core of obligations, whilst allowing signatory states to go beyond this minimum. As in other fields of EU law, the concept of harmonization on the basis of minimum standards addresses the division of powers between the Community and the MS The extent to which a Community measure may regulate a certain issue must be assessed by means of the principles of subsidiarity and proportionality. , not the specific content of Community measures. Hence, the common denominators established by way of minimum standards may set a high level of protection .[16] The extent to which a Community measure may regulate a certain issue must be assessed by means of the principles of subsidiarity and proportionality. With a view to achieving the goals of the CEAS, the Directive aimed at ensuring that - MS apply common criteria for the identification of persons genuinely in need of international protection and that - at least a certain level of benefits would be available for these persons in all MS. These minimum standards should therefore establish truly common denominators, achieving a meaningful level of harmonization. The main elements constituting the basis for these binding common denominators are Recitals 2, 3, 10 and 11 of the Directive[17] Recitals 2, 3, 10 and 11 of the Directive - the full and inclusive application of the Geneva Convention , which provides the cornerstone of the international regime for the protection of refugees, guaranteeing the principle of non-refoulement and ensuring that nobody is sent to persecution and, - the fundamental rights flowing from general principles of Community law, which, themselves, are the result of constitutional traditions common to the MS and the European Convention on Human Rights, as enshrined, moreover, in the EU Charter of Fundamental Rights ("the Charter"). However, these human rights and refugee law standards set solely the lower threshold , not the upper limits of harmonization. Thus, harmonization cannot take place at a level lower than these standards, but may always go beyond this threshold, in line with the objectives set in the EU context and subject to the respect of proportionality and subsidiarity . Harmonization on the basis of these standards should help to limit the secondary movements of asylum seekers between MS, where such movement is purely caused by differences in legal frameworks (recital 7 of the Directive) . At the same time, by ensuring that asylum seekers have equal access to protection in all MS, this harmonization constitutes a prerequisite for the fair and efficient operation of the Dublin system , which limits the possibility for asylum seekers to choose the MS which will examine their application. 2.2.2 Problems with the standards set down by the current Directive On the basis of the contributions, evaluation reports, studies and ad hoc consultations referred to in section 1.1.2, the Commission has identified Asylum decisions are made on a case-by-case basis and their outcome depends not only on the applicable rules and their interpretation, but also on the credibility of the claims and the individual circumstances of the applicants. Moreover, MS do not systematically collect information on the specific grounds on which applications are accepted or rejected. As a result, it is not possible to determine with precision whether and to what extent the interpretation of certain provisions of the Directive in ways that may be incompatible with international standards have actually led to rejections of applications. The problems described below have been identified mainly on the basis of the – mostly anecdotal – evidence provided by the evaluation studies and the consultations: it refers to cases in the administrative and judicial practice in MS illustrating how the Directive allows for divergent interpretations and for measures that do not meet international standards. Indeed, even the UNHCR study, which was based on the sampling and analysis of a substantial number of asylum decisions and case files, could not establish more general decision-making patterns, as in many cases the assessment of the individual cases takes into account combinations of elements and the decisions themselves are not – or not sufficiently – motivated. as a main problem that the minimum standards adopted are vague and ambiguous . As a result:[18] Asylum decisions are made on a case-by-case basis and their outcome depends not only on the applicable rules and their interpretation, but also on the credibility of the claims and the individual circumstances of the applicants. Moreover, MS do not systematically collect information on the specific grounds on which applications are accepted or rejected. As a result, it is not possible to determine with precision whether and to what extent the interpretation of certain provisions of the Directive in ways that may be incompatible with international standards have actually led to rejections of applications. The problems described below have been identified mainly on the basis of the – mostly anecdotal – evidence provided by the evaluation studies and the consultations: it refers to cases in the administrative and judicial practice in MS illustrating how the Directive allows for divergent interpretations and for measures that do not meet international standards. Indeed, even the UNHCR study, which was based on the sampling and analysis of a substantial number of asylum decisions and case files, could not establish more general decision-making patterns, as in many cases the assessment of the individual cases takes into account combinations of elements and the decisions themselves are not – or not sufficiently – motivated. - they are insufficient to secure full compatibility with the evolving human rights and refugee law standards and - they have not achieved a sufficient level of harmonisation - they impact negatively on the quality and efficiency of decision-making. Because of the unanimity requirement for the adoption of the Directive several of its provisions are formulated in a vague and ambiguous manner whereas others allow derogations from its rules. Additionally, in some cases, compromise was reached at the level of the more "conservative" or even restrictive interpretation of the Geneva Convention, the ECHR and other human rights instruments which are the sources of the international obligations that MS have in common Moreover, it should be noted that refugee and human rights obligations are the subject of a constantly evolving authoritative interpretation by competent national and international bodies and jurisdictions, such as the UN High Commissioner for Refugees, who has supervisory responsibility for the Geneva Convention, the European Court of Human Rights (ECtHR) , the International Criminal Court etc, with a view to address the evolving nature of persecution and geopolitical developments . [19] Moreover, it should be noted that refugee and human rights obligations are the subject of a constantly evolving authoritative interpretation by competent national and international bodies and jurisdictions, such as the UN High Commissioner for Refugees, who has supervisory responsibility for the Geneva Convention, the European Court of Human Rights (ECtHR) , the International Criminal Court etc, with a view to address the evolving nature of persecution and geopolitical developments The Directive's provisions are not, as such, incompatible with the abovementioned refugee law and human rights standards . However, the cumulative effect of all these restrictive provisions, ambiguities, deliberate "gaps" and derogation possibilities is that the current Directive does not guarantee the full compatibility of national implementation measures with these standards and allows for wide divergences amongst national decision-making practices. In some cases it may even encourage such divergences, as MS may consider themselves bound by their international obligations to provide higher standards than those established by the Directive. Indeed, in some of these cases, the need to apply higher standards has been explicitly affirmed in the jurisprudence developed since the adoption of the Directive by the European Court of Justice (ECJ), the ECtHR and national jurisdictions. Finally, as a result of the vagueness and ambiguity of the applicable rules, decision-makers have difficulties to reach quickly robust decisions on individual applications , whereas the possibility to interpret concepts in different ways results in intensive recourse to appeals and to subsequent applications, and in high rates of successful appeals against negative decisions. It should be further noted that the current standards of the Directive are also not adequate to attain the objectives set by the Hague programme, i.e. the establishment of a common asylum procedure and a uniform protection status . Support for these aims was demonstrated again very recently in the Pact, where the European Council highlighted its concern that " considerable disparities remain between one Member State and another concerning the grant of protection and the forms that protection takes" and called for "new initiatives to complete the establishment of a Common European Asylum System, provided for in the Hague Programme, and thus to offer a higher degree of protection". Moreover, the current standards of the Directive regarding the rights to be granted to beneficiaries of international protection with a view to supporting their integration are also not adequate to ensure effective access to the rights guaranteed by the relevant international instruments in a consistent manner in all Member States. In the same vein, they are not adequate neither to achieve the Treaty objective of promoting social cohesion and the integration of legally residing third-country nationals nor to give effect to the integration mandate set by the Tampere and the Hague Programmes. These provisions of the Directive reflect the legal standards provided by relevant refugee law and human rights instruments For a detailed presentation of these standards see Annex 23 . However, it appears, on the basis of extensive research, that they do not take sufficiently into account the specific practical difficulties faced by beneficiaries of international protection compared to other legally residing third-country nationals. As a result , they do not ensure the consistent and effective implementation of the relevant legal standards. [20] For a detailed presentation of these standards see Annex 23 Of relevance in this respect is the emerging European framework on integration . In relation specifically to beneficiaries of international protection , the need has been repeatedly acknowledged for MS to promote their social, economic and cultural integration in so far as it contributes to economic and social cohesion , the maintenance and strengthening of which is one of the Community's fundamental tasks provided for in Articles 2 and 3(1)(k) of the Treaty See for instance Decision No 573/2007/EC of the European Parliament and the Council of 23 May 2007, establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme "Solidarity and Management of Migration Flows" and repealing Council Decision 2004/904/EC (OJ L 144, p.1, "ERF"), recital 15. . In Tampere, the European Council had stated that the legal status of third-country nationals should be approximated to that of Member States' nationals and that a person who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union.[21] See for instance Decision No 573/2007/EC of the European Parliament and the Council of 23 May 2007, establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme "Solidarity and Management of Migration Flows" and repealing Council Decision 2004/904/EC (OJ L 144, p.1, "ERF"), recital 15. The Hague Programme in particular called for further progress with respect to the fair treatment of legally resident third-country nationals in the EU and the active elimination of obstacles to the integration of all third-country nationals settled on a long-term basis in the MS. In line with this mandate, a series of important developments took place, including the adoption by the Council of Common Basic Principles on integration, the adoption of a Common Agenda for Integration establishing a working framework for the integration of third-country nationals and the setting up of a European Fund for Integration. The Pact provided further impetus , inviting MS to establish "ambitious integration policies" including "specific measures to promote language learning and access to employment, essential factors for integration". Against this background, in the Council Conclusions following the European Ministerial Conference on Integration of 3/4 November 2008, MS agreed to give particular attention, when defining and implementing their national integration policies, to certain themes. These include introduction arrangements, access to housing, and the development of measures aimed at facilitating access to employment, such as individually tailored employment support measures, measures designed to identify previously acquired vocational skills and experience and, above all, to improve the recognition of such skills and experience. The above problems are manifest in the following provisions of the Directive For a concise comparison of the standards of the Directive with the standards/objectives to be attained in the second phase, see table in Annex 23. For a detailed analysis of these problems on the basis of information provided by the evaluation reports and collected in the context of recent consultations see Annexes 5- 12 and 18. : [22] For a concise comparison of the standards of the Directive with the standards/objectives to be attained in the second phase, see table in Annex 23. For a detailed analysis of these problems on the basis of information provided by the evaluation reports and collected in the context of recent consultations see Annexes 5- 12 and 18. 1) The definitions of the concepts “actors of protection” and “internal protection” do not contain adequate criteria for assessing the level and effectiveness of protection required, in line with the Geneva Convention and the ECHR, thus allowing MS to reject claims and return applicants to their country of origin despite the lack of effective protection. Moreover, these concepts are defined in a broad and vague manner which creates a risk of diverse recognition practices. 2) The definition of the concept "membership of a particular social group" regarding the significance to be attached to gender-related aspects allows for interpretations which may result in denial of protection for women, as well as for diverse recognition practices of applicants with similar claims. 3) Differences in the content of protection for refugees and beneficiaries of subsidiary protection are not objectively justified from a fundamental rights perspective. Based on the assumption that the protection needs of the latter category would be of a short duration, the Directive allows MS to limit their rights. This possibility has been used by a small number of MS, resulting in different levels of rights being granted to them in different MS. However, practical experience shows that this initial assumption was not accurate and can no longer serve as justification for such limitations of rights, assessed against the principle of non-discrimination. This differential treatment is further incompatible with the call of the Hague programme for a uniform protection status. 4) The specific integration needs of beneficiaries of international protection are not met : The Directive grants beneficiaries of international protection access to a series of rights, aimed at supporting their integration in the host societies; however, it does not take sufficiently into account the wide range of practical obstacles they encounter which are linked to their specific situation. For instance, they are often unable to provide documentary evidence to prove their claimed academic and professional qualifications or their limited financial capacities p revent them from seeking recognition of their qualifications or from following vocational training . Information on the concrete implementation of the Directive's provisions in MS' is fragmentary; however, numerous relevant studies demonstrate the disparities in MS' practices and that overall the rights formally granted to beneficiaries of international protection are often de facto unavailable to them: they lack effective access to sustainable employment and integration, resulting in l osses for the receiving societies and their economies For a detailed presentation of the problems, and references to the relevant studies see Annex 9 . [23] For a detailed presentation of the problems, and references to the relevant studies see Annex 9 5) The definition of "family members" does not cover cases where the beneficiaries of protection are minors or the wide range of situations where a minor might be considered dependent . To this extent, it does not give full effect to the principle of the primacy of the best interests of the child flowing from the UN Convention on the Rights of the child . 2.2.3 Statistical evidence of insufficient harmonization The wide divergences in the application of the Directive are illustrated by ample statistical evidence. To cite a few examples For references and more information on relevant statistics see Annex 13 : [24] For references and more information on relevant statistics see Annex 13 - Percentages of total positive decisions in the different MS in 2007 varied from 27.5% in Germany, to 0.8% in Greece; - Recognition rates for applicants from the same nationality for the period 2005-2007 varied significantly: for instance, for asylum seekers from Russia (mostly of Chechen background), from 63% in Austria to 0% in Slovakia; the percentage of positive decisions for Somali asylum-seekers was 98% and 55% in Malta and in the UK against 0% in Greece. - Again regarding asylum applicants having the same nationality, certain MS tend to grant refugee status whereas others opt for subsidiary protection. On positive decisions regarding Iraqi applicants in 2007, Sweden granted refugee status to 155 persons and subsidiary protection to 9,565, whereas Germany granted refugee status to 5,760 persons and subsidiary protection to 35. - The figures below show the different outcomes of first-instance decisions taken in selected MS in the 4 th quarter 2008 Source: Eurostat. EU-27: Refugee status and rejections: no data for DK, IT and CY available. Subsidiary protection: no data for DK, IT and CY available. Humanitarian reasons: no data for DK, FR, IT, CY and AT : [25] Source: Eurostat. EU-27: Refugee status and rejections: no data for DK, IT and CY available. Subsidiary protection: no data for DK, IT and CY available. Humanitarian reasons: no data for DK, FR, IT, CY and AT (...PICT...) (...PICT...) 2.2.4 The effect of insufficient harmonization on secondary movements Evidence suggests that the harmonization achieved by the Directive has not had any effect on secondary movements. Multiple applications remained high – at 17% in 2006 and 16% in 2007 For more information on relevant statistics see Annex 14 , whereas certain MS continue to be more "attractive" destinations than others. For instance, between January and December 2006, Belgium, Germany, France, Sweden and the United Kingdom received more than 3000 multiple applications while countries such as Cyprus and Portugal had received less than 100 such applications and Estonia one. In order to counter such secondary movements the Dublin mechanism has been established, setting criteria for the determination of the MS responsible for the examination of each asylum application. This mechanism limits the possibility for asylum seekers to choose the MS that will examine their application, based on the premise that they have similar chances of finding protection in all MS. However, to the extent that such a level-playing field has not yet been achieved, this system creates a phenomenon decried as an "asylum lottery". [26] For more information on relevant statistics see Annex 14 Evidently, there is a multitude of reasons why asylum seekers may find one country more "attractive" than others: linguistic and cultural ties, presence of friends and relatives, even the size of the development aid it provides (as a proxy for the country's reputation for generosity) The findings of recent studies on the distribution of asylum applications across receiving countries are largely consistent with the responses from surveys of asylum seekers about why they chose one destination rather than another: they suggest that, while asylum policies do influence the numbers of applications, asylum flows are determined mostly by variables not related to asylum policy; see Timothy J. Hatton, "European asylum policy", National Institute Economic Review no 194, October 2005, available at http://ner.sagepub.com/cgi/conten/abstract/194/1/106 . However, their chances to obtain a status or a higher level of rights there also play a decisive role. Indeed, statistics provide clear indications of the impact of asylum policy rules on secondary movements: countries which introduced restrictive measures have often seen a decrease in the number of applications soon after the changes were implemented, e.g. Germany after 1993, Spain in 1995, and Denmark in 2001. The gaps and ambiguities inherent in the Directive's provisions allowed Sweden to restrict its policies concerning Iraqi asylum seekers in 2007. As a result, Sweden witnessed a decrease by 2/3 in the number of applications from that country in 2008, whereas its restrictive policy had a impact on its neighbouring countries: the number of applications from Iraqis in Germany and the Netherlands more than doubled in 2008 compared to 2007 , Finland received 4 times as many and Norway three times as many Asylum applications by Iraqis in Sweden decreased from 18,560 in 2007 to 6,330 in 2008, whereas in. Germany they increased from 4,325 in 2007 to 7,135 for Jan-Oct 2008, in the Netherlands from 2,005 in 2007 to 4,805 for Jan-Oct 2008 and in Finland from 290 in 2007 to 765 for Jan-Oct 2008); Source: Eurostat. . [27][28] The findings of recent studies on the distribution of asylum applications across receiving countries are largely consistent with the responses from surveys of asylum seekers about why they chose one destination rather than another: they suggest that, while asylum policies do influence the numbers of applications, asylum flows are determined mostly by variables not related to asylum policy; see Timothy J. Hatton, "European asylum policy", National Institute Economic Review no 194, October 2005, available at http://ner.sagepub.com/cgi/conten/abstract/194/1/106 Asylum applications by Iraqis in Sweden decreased from 18,560 in 2007 to 6,330 in 2008, whereas in. Germany they increased from 4,325 in 2007 to 7,135 for Jan-Oct 2008, in the Netherlands from 2,005 in 2007 to 4,805 for Jan-Oct 2008 and in Finland from 290 in 2007 to 765 for Jan-Oct 2008); Source: Eurostat. 2.2.5 Insufficient harmonization as one of the factors for the unequal distribution of asylum seekers The numbers of asylum-seekers per 1,000 inhabitants for the period 2004-2008 See Annex 15. show that the most affected MS form two groups. Some MS are affected due to their geographical position (Cyprus, Greece, Malta): they are the first MS where the asylum-seekers arrive, even if they are not their desired destination. As a result, even MS with poor reception conditions and low recognition rates receive very high numbers of asylum-seekers. Other MS are affected due to their perceived generosity , measured both in reception conditions and in recognition rates, which are higher than the EU average (23% in 2007): Sweden (46%), Austria (32.4%), Luxembourg (48%). MS offering high protection standards appear to carry a heavier burden in relative terms than MS offering lower standards and recognition rates. Indeed, the fact that Sweden receives five times more asylum applications than Spain , which is a border country, may be attributed to a large extent to the higher standards of protection it grants to asylum applicants and the higher recognition rate (around 46% in 2007 compared to Spain's 4.5 %) See tables in Annex 13 . A clear articulation between recognition rates and distribution of applications amongst MS is further demonstrated in the tables in Annex 16.[29][30] See Annex 15. See tables in Annex 13 2.2.6 Evidence for poor first instance decision-making There are indications that the vagueness and ambiguity in current substantial criteria may have a negative impact on the quality of first instance examinations and on the solidity of the decisions taken . Firstly, MS are confronted with high numbers of repeated claims. In 2008, subsequent applications amounted to 36.4% in the Czech Republic, 28.5% in Belgium, 20.7% in Germany, 15.4% in Poland and 12.3% in the Netherlands. In the same year, out of 197,284 applications recorded in EURODAC, in 31,910 cases the same person had already made at least one asylum application before. Furthermore, in average, around 80 % of rejection decisions are appealed in the EU . These high percentages of subsequent and multiple applications as well as the particularly high percentage of appeals can partially be attributed to attempts by rejected asylum seekers to prevent their removal and prolong their entitlement to reception conditions . However, when considered in combination with the high rate of successful appeals (in 2008, 28% of appeals in the EU resulted in overturning negative decisions In 2008 appeals thus resulted in 18,500 final decisions to grant protection in addition to 47,745 positive first-instance decisions; for data on appeals in 2007 and 2008 see Annex 17 ), they also point to the low defendability of initial determinations and to the need to improve the robustness of negative decisions and reduce the risk of their annulment. [31] In 2008 appeals thus resulted in 18,500 final decisions to grant protection in addition to 47,745 positive first-instance decisions; for data on appeals in 2007 and 2008 see Annex 17 2.2.7 Difficulties in forecasting and quantifying costs in the asylum system It is impossible to forecast the financial impact of changes to the CEAS for several reasons. Firstly, the size or profile of flows of refugees fleeing in response to events around the world cannot be predicted from year to year. These events determine the personal motives and circumstances of individual applicants, which in turn determine the grounds on which their applications are accepted or rejected by MS To cite a theoretical example: if for instance the multi-national troops currently present in Iraq and who are potential actors of protection withdraw, the Directive's provisions on actors of protection, which are now often relevant in the determination of claims by Iraqi asylum seekers, would no longer be relevant for a large number of asylum claims in the EU. Depending on future conflicts around the world, different provisions of the Directive and other grounds of protection may acquire greater relevance in the future. . Secondly, MS have not been able to provide statistics on why, over a given period, certain applications have been accepted and others rejected. Protection is granted on a case-by-case basis as the result of a complex, context-specific analysis of the credibility of the claim and the individual circumstances of the applicant. [32] To cite a theoretical example: if for instance the multi-national troops currently present in Iraq and who are potential actors of protection withdraw, the Directive's provisions on actors of protection, which are now often relevant in the determination of claims by Iraqi asylum seekers, would no longer be relevant for a large number of asylum claims in the EU. Depending on future conflicts around the world, different provisions of the Directive and other grounds of protection may acquire greater relevance in the future. Moreover, there is no information available on the overall costs of hosting beneficiaries of protection As will be indicated below, the scant information collected on specific aspects does not allow for plausible estimates. . Different rights, such as access to education, recognition of qualifications, social welfare or employment support, are granted on the basis of individual needs and MS do not segregate statistics on the basis of such criteria. This problem is recognised by the EU, and it is being addressed by greater cooperation and information sharing among MS, the institutions and NGOs, soon to be assisted by the EASO. [33] As will be indicated below, the scant information collected on specific aspects does not allow for plausible estimates. It is thus impossible to estimate how many applicants might actually be affected by any amendments to the grounds of protection or to assess the effects of any amendments to the rights granted to beneficiaries of protection. This is unfortunately a constraint which future proposals must work within. Of course, raising the standards of protection would make the EU a more attractive place for refugees. Evidence suggests, however, that such 'pull' factors are more relevant to economic migrants. G enuine refugees do not have a choice: they must leave their country to protect their lives. 'Push' factors are stronger than pull factors, as has been apparent following conflicts in the former Yugoslavia, Chechnya, Afghanistan and Iraq. Any major conflicts in regions neighbouring the EU will inevitably result in flows of refugees to the EU, irrespective of the level of protection provided. As an indication it may be noted that, even if refugee flows increased by, for instance, 50%, they would still be close to the average for the past 20 years (340,000) while at the same time the creation of a level-playing field under the proposal would mitigate the effects of this increase by leading to a more equal distribution of asylum seekers amongst MS See Impact assessment to the Policy Plan on Asylum 'The Persistence of refugee flows towards the EU', (SEC (2008) 2029) p. 5 . [34] See Impact assessment to the Policy Plan on Asylum 'The Persistence of refugee flows towards the EU', (SEC (2008) 2029) p. 5 2.2.8 The economic situation In the present context, it is also necessary to take into account the severe strains that the current financial crisis is putting on MS' budgets and its effects on public support for measures to the advantage of beneficiaries of protection EU citizens may initially perceive any ‘special’ treatment for this category as unfair. According to a recent Eurobarometer survey of public opinion, 54% of EU citizens disagree with the idea that immigrants are needed to work in certain sectors of the economy in view of the ageing European population and the shortage of labour in certain sectors of the economy, whereas in the ten new MS (excluding Bulgaria and Romania) this figure is much higher, reaching close to 80% (compared to 49% in the fifteen old MS) http://ec.europa.eu/public_opinion/archives/ebs/ebs_215_en.pdf (pp. 39-40). However, other recent surveys show that attitudes towards genuine refugees are more positive than they are towards immigrants in general and that the humanitarian motives underlying refugee protection are more widely supported than negative press coverage would suggest; see Timothy J. Hatton, "European asylum policy", op.cit. p 113. . Raising the standards regarding the grounds for granting protection could result in higher recognition rates, thus incurring additional costs for some MS in terms of granting these persons the rights attached to their status. Further costs will result for some MS from raising the level of rights granted to beneficiaries of protection. [35] EU citizens may initially perceive any ‘special’ treatment for this category as unfair. According to a recent Eurobarometer survey of public opinion, 54% of EU citizens disagree with the idea that immigrants are needed to work in certain sectors of the economy in view of the ageing European population and the shortage of labour in certain sectors of the economy, whereas in the ten new MS (excluding Bulgaria and Romania) this figure is much higher, reaching close to 80% (compared to 49% in the fifteen old MS) http://ec.europa.eu/public_opinion/archives/ebs/ebs_215_en.pdf (pp. 39-40). However, other recent surveys show that attitudes towards genuine refugees are more positive than they are towards immigrants in general and that the humanitarian motives underlying refugee protection are more widely supported than negative press coverage would suggest; see Timothy J. Hatton, "European asylum policy", op.cit. p 113. Any further measures in this area can be co-funded by the European Refugee Fund (ERF) . In the longer term, some costs may be offset to a certain extent by savings in terms of welfare assistance, by the contributions of the beneficiaries to the economies of the host state and, more importantly, by the decreases in costs entailed by the proposal. However, MS have legal obligations from a fundamental rights perspective regarding beneficiaries of international protection , who do not arrive in the EU to obtain access to the labour market but to seek protection. In this sense, integration support can be considered to form part of the protection to be provided to them. Furthermore, the principle of non-discrimination, enshrined inter alia in Article 21, of the EU Charter is also relevant to the treatment to be afforded to them. 2.3 The Baseline scenario: "How would the problem evolve, all things being equal? " The problems identified above may be addressed to a certain extent by the case law of the ECJ and ECtHR, as they may be asked to provide guidance aimed at addressing inconsistencies and possible protection gaps. However, by its very nature, such guidance by the ECJ and ECtHR cannot systematically or fully address the identified problems, but only on an ad hoc , case-by-case basis. The impact of the ECJ may be particularly limited , since only national courts against whose decisions there is no judicial remedy may seek its guidance through preliminary questions and these courts might not always be accessible to asylum seekers. Moreover, their rulings can interpret or annul existing rules but they cannot create new ones. Unless taken over and enshrined in the EU acquis , the standards they establish do not benefit from the accessibility and coherent application across the EU guaranteed by the Community legal and institutional framework. These problems could not be adequately addressed by infringement procedures either, as the problems identified do not flow from the incomplete transposition or the incorrect implementation of the Directive, but from the vagueness, the ambiguity and the gaps in the Directive, which make it difficult to substantiate infringement cases. Practical cooperation , to be reinforced through the establishment of the EASO, may result in raising current standards and in increased convergence of national practices, e.g. through training, awareness raising, peer pressure, the identification of good practices and the provision of enhanced country of origin information. In particular, the EASO may reinforce the impact of the Directive's rules through the assessment of the asylum situation in the EU and recommendations on the implementation of the asylum instruments. However, such measures are insufficient, on their own, to adequately and comprehensively address the problems which flow from the ambiguities and possibilities for derogations in the legislation itself. It is also questionable whether those MS where improvements are most urgently needed will respond to a voluntary approach. Both the ECJ and ECtHR case-law and enhanced practical cooperation have the potential to contribute to clarifying the rules of the Directive and thus to enhance the quality and efficiency of national asylum procedures. However, given the above mentioned limits to their impacts, it is unclear to what extent they may result in a systematic overall improvement or a significant reduction of the duration of the asylum process, of the possibilities for abuse and of the costs involved across the EU. Developments at national level (e.g. change of government, factual developments, re-evaluation of the situation etc.) and eventual positive or negative impacts on asylum policy are impossible to predict . To cite an example, on the basis of their experience with the implementation of the subsidiary protection regime, several MS have taken steps towards closing the gaps between the rights provided to beneficiaries of subsidiary protection and refugees, realizing that a differentiation does not make sense in view of the similarity of the protection needs and the administrative burdens it entails. However, a few MS still differentiate, and at least one MS adopted new legislation introducing a differentiation with respect to the conditions for providing benefits to family members of beneficiaries of subsidiary protection as late as in January 2009. More generally, there are no indications that future developments will probably lead to higher standards or to increased harmonization; rather the opposite. Indeed, as the current financial crisis is putting severe strains on MS' budgets, it entails an increased risk of xenophobic tendencies and of pressures to resort to measures which could undermine the effective protection of fundamental rights . MS may choose for instance to focus on their own nationals before allocating resources to beneficiaries of protection or even to lower their standards so as to reduce the influxes of asylum seekers and deflect them elsewhere. Moreover, the persistence of divergences would result in the persistence of high levels of secondary movements within the EU and, consequently, in the continuation of an intensive use of the Dublin system , with all the costs resulting for MS from its implementation. At the same time, the MS receiving higher numbers of asylum seekers as a result of providing higher standards (and possibly even other MS ) might be inclined to lower their standards (see section 2.2 above). By contrast, it would be impossible to determine if - and to what extent - the maintenance of the status quo would have any impact on the overall asylum flows to the EU , since refugee flows are mainly driven by push factors such as political instability, no/poor rule of law, lack of respect for human rights, undemocratic regimes and armed conflicts and cannot be predicted As demonstrated in the reversal of trends described in section 2.1 above: following a sharp decrease in the period 2003-2006, asylum flows have increased again significantly since 2007. . [36] As demonstrated in the reversal of trends described in section 2.1 above: following a sharp decrease in the period 2003-2006, asylum flows have increased again significantly since 2007. 2.4 Does the EU have the power to act? 2.4.1 The EU's right to act The current legal base for Community action regarding the qualification and status of refugees and beneficiaries of subsidiary protection is established in Article 63 1(c), 2(a) and 3(a) TEC . 2.4.2 A dded value of EU action and respect for the principle of subsidiarity The issues identified are of a transnational nature and cannot be tackled by MS acting in isolation. Action at the EU level can be expected to be more effective than MS action in several respects. i) The objectives set by the Hague Programme - and confirmed in the Pact - regarding a uniform protection status and the integration of third-country nationals cannot be attained by unilateral MS action. ii) It is unlikely that the level of protection will be comprehensively raised to meet the higher international standards as they have evolved through MS' unilateral actions . On the contrary, ‘a race to the bottom’ may occur, since those MS currently providing more generous protection standards may be inclined to lower their standards in order to avoid "attracting" larger numbers of asylum seekers. As indicated above, the current financial crisis aggravates this danger. The present circumstances lend thus particular urgency to the need for the EU to proactively dissuade MS from resorting to measures which could undermine the effective protection of fundamental rights Indeed, the whole creation of a CEAS and the Qualification Directive, in particular, "pursues the objective of developing a fundamental right to asylum which follows from the general principles of Community law which, themselves, are the result of constitutional traditions common to the Member States and the ECHR, as reproduced, moreover, in the Charter [of Fundamental Rights]". See Opinion of Advocate General Poiares Maduro of 9 September 2008 in Case C-465/07, Elgafaji, point 21 . [37] Indeed, the whole creation of a CEAS and the Qualification Directive, in particular, "pursues the objective of developing a fundamental right to asylum which follows from the general principles of Community law which, themselves, are the result of constitutional traditions common to the Member States and the ECHR, as reproduced, moreover, in the Charter [of Fundamental Rights]". See Opinion of Advocate General Poiares Maduro of 9 September 2008 in Case C-465/07, Elgafaji, point 21 iii) S econdary movements and the uneven distribution of asylum seekers and beneficiaries of protection are cross-border issues that can only be addressed at EU level. Evidently, no action is possible with a view to addressing the factors leading to secondary movements which are not related to asylum policy (such as the "friends and relatives" effect, cultural and linguistic links or employment opportunities). However, it is imperative to tackle those factors which are linked to the divergences of national legislations and practices and to different levels of rights provided in different MS and this can be achieved solely by enhanced harmonization at the EU level . Such harmonisation can indeed drastically reduce asylum seekers' incentive for movements and reduce the costs of transfers under the Dublin Regulation. iv) Ambiguities and vagueness in the existing acquis can only be resolved at EU level. Action by MS cannot lead to an overall improvement of the quality and efficiency of the asylum process throughout the EU. Although authorities and courts in individual MS might attempt to clarify the meaning of certain notions, possibly also using the practical cooperation channels or seeking guidance from the ECJ, such actions cannot comprehensively and systematically address the problems resulting from the vagueness and ambiguity inherent in several provisions of the Directive. As a result, there would be no significant improvement in terms of frontloading and shortening the duration of asylum procedures nor in terms of achieving more solid, robust first-instance decisions which are not frequently overturned on appeal. Compliance with the principle of subsidiarity in this respect is confirmed by the ECJ's case-law, according to which, once the Council ‘has found it necessary to improve the existing level of protection (minimum standards in the area of health and safety) and to further harmonise the law in this area while maintaining improvements already made, the achievement of this objective necessarily presupposes Community action' Case C-377/98, Netherlands v Council , paragraph 52¸ concerning the "Working time Directive" . [38] Case C-377/98, Netherlands v Council , paragraph 52¸ concerning the "Working time Directive" 3 OBJECTIVES 3.1 Global objective The global objective for the development of rules on the qualification and status of beneficiaries of international protection in the second phase of the CEAS is t o achieve higher standards of protection across the EU for persons in need of international protection . This objective is in line with the strategy for the completion of the CEAS announced by the Commission in the Policy Plan, falling, more specifically, within the cross-cutting objective to achieve "better and more harmonized standards of protection". 3.2 Specific objectives The proposal to amend the Directive should pursue the following specific objectives: 1. To ensure the full and inclusive application of the Geneva Convention and full respect of the ECHR and of the EU Charter of Fundamental Rights ; 2. To approximate the content of protection granted to refugees and beneficiaries of subsidiary protection; 3. To raise the overall content of protection taking into account the specific needs of beneficiaries of international protection ; 4. To improve the efficiency of the asylum process; 5. To ensure the consistent application of agreed protection standards across the EU. 3.3 Operational objectives The following operational objectives will contribute to achieving specific objectives 1, 4 and 5: · To limit the broad interpretation of the concepts "actors of protection" and "internal protection" in line with the standards of the Geneva Convention and the ECHR · To ensure a more inclusive interpretation of the concept "membership of a particular social group" in line with the standards of the Geneva Convention · t o ensure a more inclusive interpretation of the “causal nexus requirement’ in line with the Geneva Convention See Annex 18 and section 4.8 below. [39] See Annex 18 and section 4.8 below. · to prevent the unwarranted cessation of protection status See Annex 18 and section 4.8 below. [40] See Annex 18 and section 4.8 below. The following operational objective will contribute to achieving specific objectives 2, 4 and 5: · To eliminate unjustified differences between the rights granted to refugees and beneficiaries of subsidiary protection The following operational objectives will contribute to achieving specific objectives 3 and 5: · To enhance the integration of beneficiaries of international protection taking into account their specific needs · To better ensure the right of beneficiaries of international protection for respect of family life. 4 POLICY OPTIONS Given the diversity of problems identified, it is not possible to identify one single all-embracing policy option. Therefore, different policy options, legislative and non-legislative, have been identified for addressing each objective. A systematic comparison of the different options in terms of effectiveness, efficiency and coherence against the baseline scenario is presented in tables in Annex 19 . 4.1 Status Quo The existing legal framework would remain unchanged and ongoing activities would continue. The Commission would continue monitoring the implementation of the Qualification Directive. For an assessment of the status quo see Annex 20. 4.2 To limit the broad interpretation of "actors of protection" in line with the standards of the Geneva Convention Option 1 (l egislative) : To specify that the list of actors of protection is an exhaustive one, to clarify that "parties" means political parties or entities and to require that such actors have administrative authority and full control over the territory and population in question. Option 2 (l egislative) : As under option 1, to specify that the list of actors of protection is exhaustive, as well as to require that protection must be effective and durable and that the parties and organisations in question are willing and able to enforce the rule of law. Option 3 (practical cooperation): MS could jointly map interpretations and share information on the criteria used to assess which actors of protection in certain third countries are potentially able to ensure adequate protection. Option 1 would ensure clarity as to the exhaustive character of the list and would stipulate with precision under what conditions parties and organisations may be equated to States regarding their ability to provide protection. However, this may exclude entities which might not have a "political" character or the attributes of a State but which would nevertheless be able to effectively provide protection in the context of a given country/society. Option 2 would also ensure clarity as to the exhaustiveness of the list and would strengthen the criteria to be applied in assessing the adequacy, accessibility and effectiveness of protection. Firstly, it would ensure that the “willingness to protect” may not be deemed sufficient in the absence of the "ability to protect", hereby also excluding parties (such as NGOs) which try to provide protection but do not have the (military, legal, etc.) power to do so. Secondly, even actors who are willing and able in principle to provide protection but not providing it in reality or who can provide protection only on a temporary basis are excluded from the scope of the concept. Thirdly, the requirement to enforce the rule of law would give more prominence to the already applicable condition relating to the operation of an effective legal system, thus clearly excluding entities such as criminal networks, warlords or guerrillas or even non-governmental organisations as potential actors of protection. The enforcement of the rule of law would also imply the enforcement of human rights standards. Finally, there would be more consistency in the approach under the Directive to the assessment by MS of whether a change in the situation in the country of origin is "significant and non-temporary nature" before deciding on cessation (Article 11(2)). Option 3 would be a useful complement to the tighter definition of “actors of protection”. Several MS receive the same caseloads, i.e. asylum applicants from the same countries of origin and presenting similar claims. Exchange of information on the criteria used to assess potential actors of protection in these countries and the results of these assessments would contribute significantly to the approximation of national decision-making practices. Such cooperation could take place in the context of EURASIL and would benefit from the creation of the EASO. Comparison of financial impacts : For MS that previously rejected applications on the basis that (particular) “actors of protection” (Option 1) or a (certain) level and type of protection (Option 2) are present in the applicant’s country of origin, both options may result in higher recognition rates. It is likely that their will be a greater increase of positive decisions under option 2 than option 1, as more MS will have to restrict their interpretation of “actors of protection”. Social effects and fundamental rights: Under both legislative options, a number of applicants who under the current provision of the Directive could be denied protection on the basis of the presence of “actors of protection” might be granted protection in the future. This access to protection will be better enhanced under Option 2. Both Options 1 and 2 enhance respect for Articles 18 and 19 of the Charter but protection standards would be raised higher under option 2. Overall assessment: To the extent that it imposes rather stringent conditions for the definition of the entities able to provide protection, Option 1 appears disproportionate. To the extent that it strengthens and clarifies the criteria for assessing the nature of the protection instead of overly restricting the definition of actors of protection, Option 2 appears more adequate and proportionate to achieve both enhanced compatibility with the Geneva Convention and enhanced quality and efficiency of decision-making. Option 3 imposes no obligations on MS, since they participate in cooperation activities on a voluntary basis. Option 2 should therefore be combined with Option 3 as part of the preferred policy option. 4.3 To limit the broad interpretation of the concept of "internal protection" in line with the standards of the Geneva Convention and the ECHR Option 1 (l egislative) : · To specify the criteria to be used for the "reasonableness" analysis based on the relevant UNHCR Guidelines, i.e. safety and security of the applicant, respect for his/her fundamental rights and the possibility to survive at a basic level of subsistence; · To confirm that the concept of internal flight alternative may apply notwithstanding technical obstacles to return to the country of origin but to specify that such obstacles must be of a temporary and exceptional nature and that they should not preclude the return for a period exceeding 6 months from the date of the decision, citing as examples the closure of airports and natural disasters; · To specify that applicants falling within the scope of this option should be granted refugee status or subsidiary protection during the period in question, depending on what status they would be eligible for if the internal flight alternative would not apply. Option 2 (l egislative): · To introduce an additional requirement, namely that the applicant should be able to travel to, gain admittance and settle in the proposed alternative location; · To delete the possibility to apply the internal flight alternative despite technical obstacles. · To include an explicit reference to the obligation of the competent authorities to obtain precise and up-to-date information on the general situation in the country. Option 3 (l egislative): · To impose on MS the obligation to demonstrate on an individual basis that the conditions for applying the internal flight alternative are fulfilled while specifying that the duty of the applicant to substantiate his/her claim in accordance with Article 4(1) of the Directive would not be affected · to introduce an additional requirement, namely that the applicant should be safely, legally and practically able to travel to, gain admittance and settle in the proposed alternative location; · To delete the possibility to apply the internal flight alternative despite technical obstacles. Option 4 (practical cooperation): MS could map the criteria for assessing “reasonableness” and exchange information relevant for the assessment of the existence of an internal flight alternative in specific third countries, possibly with the assistance of the EU Portal on Country of origin information and more generally of the EASO. Option 1 would limit the scope for broad and divergent interpretations of internal protection and technical obstacles and would provide a clear framework for the reasonableness analysis, so as to limit the potential for violations of Article 3 ECHR, as interpreted in the Salah Sheekh judgment. Option 2 would ensure conceptual coherence, by specifying that, for a Member State to deny its protection to an applicant, the absence of a well-founded fear of persecution or of risk of serious harm is not sufficient. It would also ensure that the concept of internal flight alternative under EU law is closely modelled on the core obligations flowing for the MS from the ECHR. To the extent that it would essentially transpose in the Directive the conditions set out in the Salah Sheekh judgment, it would not be open to criticisms about imposing "new", additional obligations on MS. Moreover, the deletion of the "technical obstacles" derogation would clearly and unquestionably ensure full compatibility with ECHR and the Geneva Convention. Finally, the reference to the obligation of the competent authorities to obtain precise and up-to-date information on the general situation in the country reflects the requirement for the examination of applications established in Article 8(1) of the Asylum Procedures Directive. Option 3 has all the advantages of Option 2 but, in addition, it would have an even greater positive effect in terms of achieving high protection standards across the EU, to the extent that it explicitly places on MS the burden of proof that an area constitutes an internal flight alternative. The practical cooperation option would not suffice in itself to achieve the set objective, i.e. to restrict the broad interpretation of the concept of internal flight alternative in a manner consistent with the ECHR. However, as a complement to the legislative amendments, it could contribute significantly to the approximation of national decision-making practices. Comparison of financial impacts : Under all options, MS which previously applied the notion of internal flight alternative in a broader manner would now carry the additional costs involved in granting protection to a larger number of applicants. Such costs are likely to be higher under Options 2 and 3, since the reference to technical obstacles would be removed. On the other hand, Option 1 would entail higher costs than Options 2 and 3 as a result of the specific time limit introduced for the duration of the technical obstacles, which would require authorities to re-open the files to re-assess the case and to issue a new decision once this period has expired. Option 3 may potentially incur additional costs for some MS, where the applicants carry the burden to prove that there is no internal protection for them anywhere in the country of origin. These MS may have to undertake additional research to collect evidence so as to fulfil their obligation to demonstrate that a certain area is as an internal flight alternative for the applicant. Social effects and fundamental rights: All legislative options would have a positive effect on access to protection, as improved requirements would be put in place for defining whether an alternative location is safe and the risk of being sent back to the country of origin in violation of Article 3 ECHR would be significantly reduced. All options would also improve access to justice, as they would enhance the right to appeal. These effects would be higher under Options 2 and 3 than under Option 1, as they remove the possibility to return applicants despite temporary technical obstacles, and even higher under Option 3, as it imposes the burden of proof on MS. The rights covered under Articles 18 and 19 of the Charter would be better respected under Option 2 than under Option 1 and even better under Option 3 as the latter would ensure improved access to protection and a lower risk of refoulement. Where the applicant concerned is an unaccompanied minor, all options would also positively impact on the rights of the child (Article 24) by providing better protection of children and their best interests, to the extent that they impose a careful consideration of the individual circumstances in view of clearer and stricter criteria. Overall assessment: By establishing criteria to be used for the reasonableness analysis, Option 1 might result in introducing "new", additional restrictions to the use of the concept. Options 2 and 3, on the other hand, would only introduce in the Directive the conditions set out in the Salah Sheekh judgment; thus, they would not go beyond the transposition of MS' obligations under the ECHR into the EU acquis. Option 3 might meet resistance from the Member States which currently do not carry the burden of proof. Option 2 appears thus to be the most balanced and proportionate approach, which would be appropriate to facilitate decision-making and also to bring the concept in line with relevant standards. Option 4 imposes no obligations on MS, since they participate in cooperation activities on a voluntary basis. The preferred option should therefore comprise Options 2 and 4. 4.4 To ensure a more inclusive interpretation of the concept "particular social group" in line with the standards of the Geneva Convention Option 1 (l egislative): To explicitly allow MS to adopt the alternative application of the two relevant criteria by providing for the possibility to define a particular social group based on either one of the two criteria mentioned including based solely on gender-related aspects. Option 2 (l egislative): To replace the last phrase of Article 10(1)(d) with a provision specifying that gender related aspects should be given due consideration for the purposes of recognising membership of a particular social group or identifying a characteristic of such a group. Option 3 (l egislative): To replace the last phrase of Article 10(1)(d) as under Option 2 and also to specify that, for this ground to apply, it suffices that one of the two requirements is met Option 4 (practical cooperation): MS could cooperate to jointly map the interpretation of the ground "membership of a particular social group " with regard to gender-related issues and its effects on the process and outcomes of determining whether an applicant is to be granted international protection or not. Option 1 would explicitly endorse the broad interpretation of this notion, i.e. the alternative application of the criteria, which is already applied by at least 10 MS in their legislation and/or jurisprudence and would possibly encourage others to adopt it. It would thus clarify the scope of this notion and create favourable conditions for a more inclusive application of the Geneva Convention. However, to the extent that such a broadening of the concept would only be optional, it would be an inadequate measure in terms of ensuring a consistent interpretation and preventing potential protection gaps. In sum, Option 1 closely resembles the status quo. Option 2 would not address the general issue of the application of the two criteria, but would provide specific guidance on the weight to be attached to issues arising from the applicant's gender and would impose an overall obligation to duly consider such issues in the assessment of the claim and specifically within the context of the definition of a particular social group. It would thus ensure consistency of national practices and would address the risk of gaps in the provision to women of the protection flowing for this Convention. Option 3 presents all the advantages of Option 2 but would also bring clarity about the more general issue of the scope of the concept. It would further ensure that all MS adopt a progressive and inclusive application of this Geneva Convention ground and would comprehensively address the risk of gaps in the provision of the protection flowing for this Convention. The practical cooperation option could be particularly helpful to those MS which might need to broaden their current interpretation and application of this concept and could in any case contribute to the approximation of national decision-making. Comparison of financial impacts : O ptions 1 and 3 would incur costs related to higher recognition rates for those MS (at least 12) that currently apply cumulatively the relevant criteria. These extra costs will not apply to the (at least 10) MS that have already adopted an alternative approach to the concept. All legislative options would incur costs for those MS (at least 14) that currently do not provide the possibility to define a particular social group on gender related aspects alone and as a consequence may deny certain female applicants international protection. These extra costs will not apply to the (at least 11) MS that already provide for such a possibility. In the case of Option 1 all the above costs would be limited as they would affect only those MS which voluntarily accept to change their approach. Social effects and fundamental rights: The effect of Option 1 on access to protection would be marginal, as it does not oblige Member States to change their approach. Option 2 would substantially improve the equality of treatment of female applicants and increasz their chances of being granted protection. Option 3 would have an even higher impact, as it would also tackle the general issue of the application of the relevant criteria. In the MS affected, Option 3 would also ensure better respect of the rights covered under Article 18 and especially Article 19 of the Charter than all the other options. Overall assessment: All legislative options can be considered proportionate; however it appears that Option 1 would be an inadequate measure in terms of raising protection standards, improving efficiency and ensuring a consistent application. Option 3 would have the most positive effects in terms of ensuring that all MS adopt a progressive and inclusive application of this Geneva Convention ground but it might meet with strong resistance from a significant number of Member States. Therefore, Option 2 appears as the most proportionate and adequate to achieve the set objectives. Option 4 imposes no obligations on MS, since they participate in cooperation activities on a voluntary basis. The preferred option should therefore be a combination of Options 2 and 4. 4.5 To approximate the rights of beneficiaries of subsidiary protection to those of refugees 4.5.1 Duration of residence permits Option 1 (l egislative) : To prolong the minimum duration of the residence permits granted to beneficiaries of subsidiary protection from the current 1-year period to 2 years. Option 2 (l egislative) : To oblige MS to grant beneficiaries of subsidiary protection residence permits valid for at least 3 years, but to include as a compulsory element that the MS should re-assess at the moment of renewal whether the conditions for the protection status are still fulfilled. Option 3 (l egislative) : To oblige MS to grant beneficiaries of subsidiary protection residence permits valid for at least 3 years, as is currently the case for refugees. Option 1 would not result in a similar level of entitlements for beneficiaries of subsidiary protection and refugees, although it would lead to an improvement in those MS (at least 11) that currently grant beneficiaries of subsidiary protection the minimum (1 year) residence permit. Some MS may still opt for more beneficial terms, in particular those (at least 7) MS which grant permits of 3 years or more. This means that the protection standards across the EU would not be entirely consistent, but in any case to a higher degree that at present. Standards would be enhanced in those MS (at least 8) that currently grant resident permits of less than 2 years. Under Option 2, beneficiaries of subsidiary protection would be entitled to a residence permit of equal duration as refugees. Protection standards would be increased in those countries that currently grant permits valid for a period shorter than three years (at least 12 MS; in addition to those granting permits of one year, Poland grants a permit of two years), but decreased in those MS that currently renew residence permits automatically. It would also satisfy the need felt by certain MS to assess the persistence of protection needs of beneficiaries of subsidiary protection more strictly than in the case of refugees. Option 3 would imply the complete approximation of the duration of residence permits granted to the two categories, thus raising the content of the status of beneficiaries of subsidiary protection and enhancing consistency in the application of the Directive. It would also lead to optimal streamlining of the relevant administrative procedures. Comparison of financial impacts : Option 1 would result in a limited reduction of the administrative and financial costs associated with the renewal of residence permits for those MS that issue permits valid for one year only. However, this reduction would not be as important as under option 3, where the need for renewal only would need to be assessed every three years on a case by case basis. In practice, option 3 would imply that those MS which check the need for protection every year at present would only need to do this every three years. Option 2 on the other hand, which would introduce an obligation to verify whether protection needs persist at the end of the 3 year period, would imply an additional administrative burden on the MS, in particular for those countries that currently already issue permits valid three years or more, and only re-assess the need on a case by case basis. For the MS which assess the need for protection on a yearly or every second year basis, an assessment every three years could, however, even imply a cost reduction. In practice the obligation to re-assess the need for protection would mean that within a three years period, all these beneficiaries’ (need for) residence permits would need to be checked by the MS. Depending on the number (and proportion) of beneficiaries of subsidiary protection in the country, this requirement would be more costly in some MS than others. Social effects and fundamental rights: All three options will lead to increased equality, access to social protection and integration for beneficiaries in some MS, but impacts will vary between the options. Option 3 will achieve the highest level of equality, protection and integration, whereas option 1 will have the least positive effects, since it would result in a better situation in the lowest number of MS and during the shortest time period. Indeed, longer validity of residence permits can be expected to have more positive effects on both social protection and integration. All options promote the rights in Articles 18 and 21 of the Charter. These rights would be enhanced to the highest degree by option 3 and to the lowest degree by option 1. As regards the situation of children and their right to such protection and care that is necessary for their well being (Article 24), option 3 would have the strongest positive impact. Overall assessment : Option 1 is inadequate to achieve the desired level of approximation of rights, streamlining of procedures and consistency of standards. Option 2 is disproportionate in view of the additional administrative burden it implies in a compulsory manner, given that MS can on their own initiative check the persistence of protection needs as often as they see fit. Compared to these options, and taking into account that it would have the strongest positive impacts from the social/fundamental rights perspective, Option 3 should be the preferred policy option. 4.5.2 Access to employment Option 1 (l egislative) : To guarantee beneficiaries of subsidiary protection access to employment-related education opportunities under the same conditions as refugees but to make their access to the labour market conditional on MS' compliance with the transitional arrangements in the Accession Treaties. Option 2 (l egislative) : To establish a temporal limit of 6 months for the application of the limitations allowed by the current Qualification Directive. Option 3 (l egislative) : To oblige MS to grant beneficiaries of subsidiary protection unconditional access to employment and to activities such as employment-related education opportunities, vocational training and practical workplace experience, as is currently the case with refugees. Option 1 would not result in a complete approximation but would greatly reduce the scope of discretion cur