[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 21.10.2009

COM(2009) 554 final

2009/0165 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on minimum standards on procedures in Member States for granting and withdrawing international protection (Recast)

{SEC(2009) 1376}{SEC(2009) 1377}

EXPLANATORY MEMORANDUM

Context of the Proposal

1.1. Grounds for and objectives of the proposal

This proposal is a recasting of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status[1] (hereafter – the Asylum Procedures Directive).

Contributions received by stakeholders in response to the Green Paper consultation[2] have pointed to the proliferation of disparate procedural arrangements at national level and deficiencies regarding the level of procedural guarantees for asylum applicants which mainly result from the fact that the Directive currently allows Member States a wide margin of discretion. Consequently, the Directive lacks the potential to back up adequately the Qualification Directive[3] and ensure a rigorous examination of applications for international protection in line with international and Community obligations of Member States regarding the principle of non-refoulement .

As announced in the Policy Plan on Asylum[4], this proposal is part of initiatives which aim to ensure a higher degree of harmonisation and better standards of international protection across the Union. The envisaged measures are expected to improve the coherence between EU asylum instruments , simplify, streamline and consolidate procedural arrangements across the Union and lead to more robust determinations at first instance, thus preventing abuse and improving efficiency of the asylum process .

This proposal is linked with the Commission's proposal for a regulation establishing a European Asylum Support Office[5], which inter alia aims to provide practical assistance to Member States with a view to enhancing the quality of asylum decision making.

As concerns the financial and administrative burdens arising from the envisaged measures for those Member States which are faced with specific and disproportionate pressures on their asylum systems, due in particular to their geographical or demographic situation, the resources of the European Refugee Fund will be mobilised to provide adequate support to these Member States and to ensure that the burden will be shared more fairly between all Member States. In addition, the European Asylum Support Office will coordinate and support common action to assist Member States faced with particular pressures, and, more generally, help Member States identify the most cost-efficient ways to implement the envisaged measures through the pooling of good practice and the structured exchange of high-level expertise.

1.2. General context

Work on the creation of a Common European Asylum System (CEAS) started immediately after the entry into force of the Treaty of Amsterdam in May 1999, on the basis of the principles approved by the Tampere European Council. During the first phase of the CEAS (1999-2005), the goal was to harmonise Member States' legal frameworks on the basis of minimum standards. The Asylum Procedures Directive was the last of the five pieces of EU asylum legislation. It aims to establish minimum standards on procedures in Member States for granting and withdrawing refugee status.

This proposal responds to the call of the Hague Programme to submit proposals for the second-phase instruments to the Council and the European Parliament with a view to their adoption before the end of 2010. It aims to address the deficiencies in procedures for granting and withdrawing international protection and to ensure higher and more harmonised standards of protection, thus progressing towards a common asylum procedure and a uniform status, as set out in the Tampere conclusions and reiterated in the Hague Programme.

Detailed analysis of the problems identified in relation to this directive and concerning the preparation carried out for its adoption, the identification and assessment of policy options and the identification and assessment of the preferred policy option are included in the Impact Assessment, annexed to this proposal.

1.3. Consistency with other policies and objectives of the Union

This proposal is fully in line with the Tampere European Council Conclusions of 1999 and the Hague Programme of 2004 in relation to the establishment of the CEAS. It also responds to the call of the European Pact on Immigration and Asylum, adopted by the European Council on 17 October 2008[6], to present proposals for establishing, in 2012 at the latest, a single asylum procedure comprising common guarantees.

Consultation of Interested Parties

At present, the Commission has at its disposal a large amount of information regarding the implementation of the Directive, including extensive information on the deficiencies concerning the terms of the Directive and the manner in which it is applied in practice.

- In June 2007, the Commission presented a Green Paper which aimed to identify possible options for shaping the second phase of the CEAS. The response to the public consultation included 89 contributions from a wide range of stakeholders . The issues raised and the suggestions put forward during the consultation have provided the basis for the Policy Plan that lists the measures that the Commission intends to propose in order to complete the second phase of the CEAS, including the proposal to amend the Asylum Procedures Directive. The Commission has conducted a careful analysis of the transposition measures , notified by Member States.

- The implementation of the Directive and possible ways to address the current gaps in the Community framework on asylum procedures were discussed in 6 experts' meetings organised by the Commission between February 2008 and January 2009. These consultations involved Government experts (4 experts' meetings held on 25.02.2008, 29.09.2008, 25.11.2008 and 12.01.2009), NGOs (08.01.2009), UNHCR and legal practitioners providing legal advice to asylum applicants in national procedures (17.03.2008), and focused on the key elements of the Directive. These consultations provided the Commission with valuable information regarding the areas to be addressed in the present proposal. Parties consulted expressed a general consensus to achieving further harmonisation of procedural arrangements and providing applicants for international protection with adequate guarantees thus ensuring an efficient and fair examination of their claims, in line with the Qualification Directive. Some Member States however underlined the need to retain a certain degree of flexibility regarding the organisation of asylum procedures and to maintain procedural arrangements aimed at preventing abuse, whereas others expressed a preference to address deficiencies of the present framework via practical cooperation measures rather than via a legislative intervention.

- An external study was conducted on behalf of the Commission, analysing the existing evidence and results of consultations.

- Further data was collected in response to several detailed questionnaires addressed by the Commission to all Member States and to civil society stakeholders.

- Important information on the implementation of the directive was also found in reports on the projects co-funded by European Refugee Fund and in the report on asylum procedures in the IGC participating states (the Blue Book).

On the basis of the Green Paper contributions and consultations with Government and Civil Society experts, academic commentaries, MS' replies to the questionnaires and the analysis of the transposition measures carried out by the Commission, two main problems have been identified. Namely, the minimum standards are (a) insufficient and (b) vague, thus lacking the potential to ensure fair and efficient examinations. Taking into consideration the serious gaps pointed out by many commentators and stakeholders, the Commission decided to propose the procedural guarantees and notions which are instrumental in ensuring reliable determinations in line with the Qualification Directive. This inter alia includes guarantees aimed at giving an applicant a realistic opportunity to substantiate his/her request for international protection, special guarantees for vulnerable applicants and arrangements on quality decision making. These standards are vital with a view to preventing abuse and preserving integrity of asylum systems. In this respect, the Commission's proposal also takes into account the concerns expressed by Member States regarding repeated and manifestly unfounded applications. In sum, this proposal aims to lay down the necessary conditions for making asylum procedures in the Community accessible, efficient, fair and context sensitive.

Legal Elements of the Proposal

3.1. Summary of the proposed action

The main objective of this proposal is to ensure higher and more coherent standards on procedures for granting and withdrawing international protection that would guarantee an adequate examination of the protection needs of third country nationals or stateless persons in line with international and Community obligations of Member States.

The proposal aims at improving both the efficiency and the quality of decision making by “frontloading" services, advice and expertise and encouraging MS to deliver, within a reasonable time, robust determinations at first instance . The improved efficiency and quality of the asylum process should (a) enable MS to quicker distinguish between asylum seekers and other migrants in mixed arrivals, thus optimising labour and administrative resources needed to establish and complete applicable procedures (return, asylum, humanitarian status, extradition etc.); (b) allow the asylum authorities to take robust decisions, based on complete and properly established factual circumstances of the claim, improve the defendability of negative decisions and reduce risk of their annulment by appeal bodies; (c) enable the asylum personnel to better identify cases of unfounded and abusive applications, including those based on false identity or nationality ; (d) reduce MS' reception costs and support their efforts to remove failed asylum seekers from the territory since quality determinations will be delivered quicker and more cases will result in a final decision already in the first instance. Genuine refugees and persons in need of subsidiary protection would enjoy quicker access to entitlements set out in the Qualification Directive.

The proposal further aims at simplifying and consolidating procedural notions and devices and improving coherence between asylum instruments. This should inter alia limit the phenomenon of secondary movements of asylum seekers amongst Member States, to the degree that such movements are generated from divergent procedural arrangements.

In this respect the proposal addresses the following issues:

1. Consistency between different asylum instruments

With a view to facilitating consistent application of the asylum acquis and simplifying applicable arrangements , the proposal provides for a single procedure, thus making it clear that applications should be considered in the light of both forms of international protection set out in the Qualification Directive. It further specifies the rules applicable in the single procedure, such as a mandatory sequence of an examination of the protection needs in relation to refugee status and subsidiary protection status, and extends the present rules on the withdrawal of refugee status to cases of the withdrawal of subsidiary protection. These modifications reflect a long standing objective of the Commission policy on asylum[7] and aim at ensuring consistency with the Qualification Directive. Moreover, with a view to clarifying the scope of the directive ratione materiae , the proposal makes it clear that the procedural principles and guarantees set out in the Asylum Procedures Directive apply to applicants who are the subject to procedures pursuant to the Dublin Regulation[8] in the second Member States, and underlines that the notion of implicit withdrawal of applications should not be an obstacle for applicants to re-access asylum procedures in the responsible Member State.

2. Access to procedures

The proposal provides for a number of guarantees aimed at enhancing access to asylum procedures. First, it explicitly includes territorial waters in the scope of the Directive and specifies the obligations of border guards, police and personnel of detention facilities. It also provides for a time limit for completing formalities related to the lodging of an application and introduces guarantees aimed at enabling de facto asylum seekers to articulate their request for protection when they are present at the border crossing points or pre-removal detention facilities. These include access to information on procedures to be followed in order to apply for international protection, access to organisations providing legal advice and counselling to asylum seekers, and arrangements aimed at ensuring the communication between the competent authorities and the person concerned.

3. Procedural guarantees in procedures at first instance

The proposal aims to increase the overall level of fairness in asylum procedures, thus leading to more consistent application of agreed procedural principles and guarantees. The proposed amendments are, to a large extent, informed by evolving case law of the European Court of Justice regarding the general principles of Community Law, such as the right to defence, the principle of equality of arms, and the right to effective judicial protection. The jurisprudence of the European Court of Human Rights was another key source of inspiration for developing further procedural safeguards for asylum applicants. In this respect, the proposal essentially aims to provide an applicant with an adequate and realistic opportunity to support his/her claim for international protection, and to ensure a meaningful assessment of the protection needs of the applicant by the competent authorities. In view of the above, the proposed amendments:

(a) reduce exceptions to the procedural principles and guarantees set out in the present Directive. In particular, the proposal deletes the possibility to omit a personal interview in accelerated procedures;

(b) provide for additional guarantees, such as the right to free legal assistance for applicants for international protection in procedures at first instance;

(c) introduce special guarantees for vulnerable asylum applicants. These inter alia include rules dealing with medico-legal reports, exemption of certain categories of applicants from accelerated or border procedures and procedural arrangements aimed at establishing the elements of the application in cases involving gender and/or age based persecution.

The envisaged measures would inter alia contribute to preventing abuse of procedures by improving applicants' awareness of applicable requirements leading inter alia to better compliance with procedural obligations. They would also support efforts of asylum authorities to take defendable and robust decisions, based on complete and properly established factual circumstances of the claim.

4. Procedural notions and devices

With a view to achieving the objective of a common asylum procedure, the proposal aims at consolidating the key procedural notions and devices and defining better their functional role in asylum procedures. This primarily concerns the inadmissibility grounds, including the safe third country notion, accelerated procedures and manifestly unfounded applications, the notion of subsequent applications, and the safe country of origin concept. The directive's notions and devices should become more consistent and simplified , while providing asylum authorities with necessary procedural tools to prevent / respond to abuse and process quickly clearly unfounded or less complex applications.

With respect to the inadmissibility decisions, the proposal makes it clear that the applicant concerned should be able to make his/her views with regard to the application of the inadmissibility grounds known to the authorities before a decision to consider an application inadmissible has been taken. The proposal further deletes the European safe third country notion and incorporates the grounds of subsidiary protection in the list of material requirements for the application of the safe third country notion.

The proposal also revises the present arrangements for accelerated procedures providing for a limited and exhaustive list of grounds for an accelerated examination of manifestly unfounded applications and underlines that the determining authority should be given sufficient time to carry out a rigorous examination of an application in such cases. At the same time, the proposal preserves and further develops the Directive's provisions safeguarding the integrity of procedures, in particular as concerns the processing of abusive or fraudulent claims. In this respect, the amendments introduce an obligation for applicants to cooperate with the competent authorities in establishing their identity and other elements of the application. This provision should operate in conjunction with the current standards which allow MS to consider applications, based on false information or documents with respect to applicant's identity or nationality, as manifestly unfounded and to accelerate their examination.

The envisaged measures on quality decision making, including arrangements on personal interviews, expert advice and training, should further enhance the preparedness of the asylum personnel to identify timely fraudulent or abusive cases. These measures are further strengthened by underlining the principle of a single determining authority. The latter amendment accommodates institutional arrangements of the majority of MS and is indispensible with a view to ensuring the availability of institutional expertise and delivering robust determinations, based on complete and accurately established factual circumstances. This would also contribute to consolidating the asylum process and improving the quality of first instance examinations, thus discouraging abuse of procedures.

It is also proposed to streamline the asylum process by introducing time limits for procedures at first instance. The envisaged general 6 month time limit accommodates legislative amendments and/or practices of the majority of Member States, consulted in the process of preparing the amendments[9]. It is instrumental in improving the efficiency of examinations, reducing reception costs, facilitating removal of failed asylum seekers and ensuring quicker access to protection for genuine refugees and persons in need of subsidiary protection. The amendments also provide for the possibility of extending the time limit for 6 more months in individual cases. In order to give MS sufficient time to adapt and re-organise their national procedures in line with the proposed time limits, the proposal provides for the postponement of the transposition deadline with regard to these amendments for 3 years.

Furthermore, the proposal aims to reconsider certain elements of the safe country of origin concept by deleting the notion of a minimum common list of safe countries of origin and consolidating the common objective criteria for the national designation of third countries as safe countries of origin. The proposed amendments should lead to more consistent application of the safe country of origin notion, based on common material requirements, regular reviews of the situation in countries designated as safe and procedural guarantees equally applied in all MS opted for this device. The European safe third country concept is also re-visited to the extent that the common list is no longer foreseen. In order to reduce the root causes of repeated applications, the proposal makes it clear that the applicant and the determining authority should take all necessary efforts to establish and assess the elements of the initial application in line with the cooperative requirement set out in Article 4(1) of the Qualification Directive. The proposal further consolidates the Directive's provisions dealing with subsequent applications with a view to enabling Member States to subject a subsequent application to an admissibility test in line with the res judicata principle and to derogate from the right to remain in the territory in cases of multiple subsequent applications thus preventing abuse of asylum procedures.

5. Access to effective remedy

The proposal facilitates access to effective remedy for asylum applicants in line with Community and international obligations of Member States. In this respect, the proposal is largely informed by ongoing developments in respective case law of the ECJ and the ECtHR. Firstly, the proposal provides for a full and ex nunc review of first instance decisions by a court or tribunal and specifies that the notion of effective remedy requires a review of both facts and points of law. Furthermore, the proposal aims at bringing the appeal proceedings pursuant to the Directive in line with the "equality of arms" principle and, subject to limited exceptions, provides for automatic suspensive effect of appeals against first instance decisions on applications for international protection.

3.2. Legal Basis

This proposal amends Directive 2005/85/EC and uses the same legal base as that act, namely point (1)(d) of the first paragraph of Article 63 of the EC Treaty. The amendments dealing with procedural standards relating to subsidiary protection status are based on point (2)(a) of the first paragraph of Article 63 of the EC Treaty.

Article 1 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, states that Ireland and the UK may ‘opt in’ to measures establishing a Common European Asylum System. In accordance with Article 3 of this Protocol, the United Kingdom and Ireland had given notice of their wish to take part in the adoption and application of the current Directive. However, the position of these Member States with regard to the current directive does not affect their possible participation with regard to the new directive.

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not bound by the directive nor is subject to its application.

3.3. Subsidiarity Principle

Title IV of the EC Treaty ('TEC') on visas, asylum, immigration and other policies related to free movement of persons confers certain powers on these matters to the European Community. These powers must be exercised in accordance with Article 5 TEC, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

The current legal base for Community action is established in Article 63(1) TEC. This provision states that the Council is to adopt “measures on asylum, in accordance with the Geneva Convention relating to the Status of Refugees of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties” in areas such as minimum standards on procedures in Member States for granting or withdrawing refugee status and minimum standards for giving protection to persons who otherwise need international protection.

Due to the transnational nature of the problems related to asylum and refugee protection, the EU is well placed to propose solutions in the framework of the CEAS, in particular with regard to issues concerning procedures for granting and withdrawing international protection. Although an important level of harmonization was reached by the adoption of the directive in 2005, further EU action is necessary in order to attain higher and more harmonised standards on asylum procedures and to take further steps towards a common asylum procedure, the long term goal identified in Tampere. These standards are also considered indispensible with a view to ensuring that asylum seekers who are the subject to the Dublin procedures have their applications examined under equivalent conditions in different Member States.

3.4. Proportionality Principle

The impact assessment on the amendment of the Asylum Procedures Directive assessed each option with regard to the problems identified so as to represent an ideal proportion between practical value and efforts needed and concluded that opting for EU action does not go beyond what is necessary to achieve the objective of solving those problems.

3.5. Impact on fundamental rights

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

- fundamental rights flowing from general principles of Community law, which, themselves, are the result of constitutional traditions common to the Member States and the ECHR, as enshrined, moreover, in the EU Charter, and

- obligations stemming from international law, in particular from the Geneva Convention, the European Convention on Human Rights, and from the UN Convention on the Rights of the Child.

Ensuring higher standards on asylum procedures as well as their consistent application across the EU will have an overall positive impact for asylum seekers from a fundamental rights point of view. In particular, the proposal will reduce room for administrative error in asylum procedures thus ensuring better respect for the principle of non-refoulement and improving access to protection and justice. It will also enhance gender equality and promote the best interests of the child principle in national asylum procedures.

ê 2005/85/EC

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2009/0165 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on minimum standards on procedures in Member States for granting and withdrawing refugee status ð international protection ï

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular point (1) (d) ð and point (2) (a) ï of the first paragraph of Article 63 thereof,

Having regard to the proposal from the Commission[10],

Having regard to the opinion of the European Economic and Social Committee[11],

Having regard to the opinion of the Committee of the Regions[12],

Acting in accordance with the procedure laid down in Article 251 of the Treaty[13],

Whereas:

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1. A number of substantive changes are to be made to Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures for granting and withdrawing refugee status[14]. In the interests of clarity, that Directive should be recast.

ê 2005/85/EC recital 1

2. A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union’s objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.

ê 2005/85/EC recital 2

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

ê 2005/85/EC recital 3

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

ê 2005/85/EC recital 4 (adapted)

5. The Ö Directive 2005/85/EC Õ minimum standards laid down in this Directive on procedures in Member States for granting or withdrawing refugee status are therefore Ö was Õ a first measure on asylum procedures.

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

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

8. The resources of the European Refugee Fund and of the European Asylum Support Office should be mobilised to provide adequate support to the Member States' efforts relating to the implementation of the standards set in the second phase of the Common European Asylum System, in particular to those Member States which are faced with specific and disproportionate pressures on their asylum systems, due in particular to their geographical or demographic situation.

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

ê 2005/85/EC recital 5

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

ê 2005/85/EC recital 6

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

ê 2005/85/EC recital 7

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

ê 2005/85/EC recital 8

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

ê 2005/85/EC recital 9

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

ê 2005/85/EC recital 10

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

ê 2005/85/EC recital 11

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

ê 2005/85/EC recital 12

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

ê 2005/85/EC recital 13

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

ê 2005/85/EC recital 14

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

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

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

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

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

23. The "best interests of the child" should be a primary consideration of Member States when implementing this Directive, in line with the 1989 United Nations Convention on the Rights of the Child.

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

ê 2005/85/EC recital 15

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

ê 2005/85/EC recital 16

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

ê 2005/85/EC recital 17

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

ê 2005/85/EC recital 18

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

ê 2005/85/EC recital 19

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

ê 2005/85/EC recital 20 (adapted)

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

ê 2005/85/EC recital 21

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

ê 2005/85/EC recital 22 (adapted)

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30. Member States should examine all applications on the substance, i.e. assess whether the applicant in question qualifies as a refugee Ö for international protection Õ in accordance with Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [15] , Directive […/../EC] [the Qualification Directive] except where the present Directive provides otherwise, in particular where it can be reasonably assumed that another country would do the examination or provide sufficient protection. In particular, Member States should not be obliged to assess the substance of an asylum application ð for international protection ï where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to this country.

ê 2005/85/EC recital 23

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

ê 2005/85/EC recital 24

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

ê 2005/85/EC recital 25

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

ê 2005/85/EC recital 26

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

ê 2005/85/EC recital 27

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

ê 2005/85/EC recital 28

35. In accordance with Article 64 of the Treaty, this Directive does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

ê 2005/85/EC recital 29 (adapted)

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36. This Directive does not deal with procedures ð between Member States ï governed by Council Regulation (EC) No 343/2003 of 18 February 2003 Regulation (EC) No […/… ][establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application ð for international protection ï lodged in one of the Member States by a third-country national ð or a stateless person ï [16] (The Dublin Regulation)].

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

ê 2005/85/EC recital 30

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

ê 2005/85/EC recital 31

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39. Since the objective of this Directive, namely to establish minimum standards on procedures in Member States for granting and withdrawing refugee status ð international protection ï cannot be sufficiently attained by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.

ê 2005/85/EC recital 32 (adapted)

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

ê 2005/85/EC recital 33 (adapted)

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

ê 2005/85/EC recital 34

40. In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive and is not bound by it or subject to its application.

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

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

ê 2005/85/EC

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HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

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

Article 2

Definitions

For the purposes of this Directive:

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

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

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

ê 2005/85/EC

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

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(d) "applicant with special needs" means an applicant who due to age, gender, disability, mental health problems or consequences of torture, rape or other serious forms of psychological, physical or sexual violence is in need of special guarantees in order to benefit from the rights and comply with the obligations in accordance with this Directive;

ê 2005/85/EC (adapted)

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

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

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

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

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

ê 2005/85/EC (adapted)

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

ò new

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

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

ê 2005/85/EC (adapted)

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(h)(m) "unaccompanied minor" means a person below the age of 18 who arrives in the territory of the Member States unaccompanied by an adult responsible for him/her whether by law or by custom, and for as long as he/she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he/she has entered the territory of the Member States ; ð a minor as defined in Article 2 (l) of Directive […./.../EC] [the Qualification Directive];ï

(i)(n) "representative" means a person acting on behalf of an organisation representing an unaccompanied minor as legal guardian , a person acting on behalf of a national organisation which is responsible for the care and well-being of minors or any other appropriate representation appointed to ensure his/her best interests; ð person appointed by the competent authorities to act as a legal guardian in order to assist and represent an unaccompanied minor with a view to ensuring the child's best interests and exercising legal capacity for the minor where necessary; ï

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

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

Article 3

Scope

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

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

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

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

ê 2005/85/EC

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Article 4

Responsible authorities

45. Member States shall designate for all procedures a determining authority which will be responsible for an appropriate examination of the applications in accordance with this Directive,in particular Articles 8(2) and 9. ð Member States shall ensure that this authority has sufficient numbers of competent and specialized personnel at its disposal for carrying out its tasks within the prescribed time limits. To that end, Member States shall provide for initial and follow up training programmes for the personnel examining applications and taking decisions on international protection. ï

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46. The training referred to in paragraph 1 shall include, in particular:

(a) substantive and procedural rules on international protection and Human Rights set out in relevant international and Community instruments, including the principles of non- refoulement and non-discrimination;

(b) gender, trauma and age awareness;

(c) use of country of origin information;

(d) interview technics, including cross-culture communication;

(e) identification and documentation of signs and symptoms of torture;

(f) evidence assessment, including the principle of the benefit of the doubt;

(g) case law issues relevant to the examination of applications for international protection.

ê 2005/85/EC

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

ê 2005/85/EC (adapted)

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23. However, Member States may provide that another authority is responsible for the purposes of: ð processing cases pursuant to Regulation (EC) No …/…. [the Dublin Regulation]. ï

(a) processing cases in which it is considered to transfer the applicant to another State according to the rules establishing criteria and mechanisms for determining which State is responsible for considering an application for asylum, until the transfer takes place or the requested State has refused to take charge of or take back the applicant;

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

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

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

(e) refusing permission to enter in the framework of the procedure provided for in Article 35(2) to (5), subject to the conditions and as set out therein;

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

34. Where Ö an authority Õ authorities are Ö is Õ designated in accordance with paragraph 23, Member States shall ensure that the personnel of Ö that authority Õ such authorities have the appropriate knowledge or receive the necessary training to fulfil their obligations when implementing this Directive.

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

ê 2005/85/EC

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Article 5

More favourable provisions

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

CHAPTER II

BASIC PRINCIPLES AND GUARANTEES

Article 6

Access to the procedure

1. Member States may require that applications for asylum be made in person and/or at a designated place.

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47. Member States shall designate competent authorities responsible for the receipt and registration of applications for international protection. Without prejudice to paragraphs 5, 6, 7 and 8, Member States may require that applications for international protection be made in person and/or at a designated place.

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

ê 2005/85/EC

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

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

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

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5. Member States shall ensure that a minor has the right to make an application for international protection either on his/her own behalf, or through his/her parents or other adult family members.

6. Member States shall ensure that the appropriate bodies referred to in Article 10 of Directive 2008/115/EC of the European Parliament and of the Council [17] have the right to lodge an application for international protection on behalf of an unaccompanied minor if, on the basis of an individual assessment of his/her personal situation, these bodies are of the opinion that the minor may have protection needs pursuant to Directive […./../EC] [the Qualification Directive].

ê 2005/85/EC

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47. Member States may determine in national legislation:

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

(b) the cases in which the application of an unaccompanied minor has to be lodged by a representative as provided for in Article 1721 (1)(a);

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

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

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8. Member States shall ensure that border guards, police and immigration authorities, and personnel of detention facilities have instructions and receive necessary training for dealing with applications for international protection. If these authorities are designated as competent authorities pursuant to paragraph 1, the instructions shall include an obligation to register the application. In other cases, the instructions shall require to forward the application to the authority competent for this registration together with all relevant information.

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

9. An application for international protection shall be registered by the competent authorities within 72 hours from the moment a person has expressed his/her wish to apply for international protection pursuant to subparagraph 1 of paragraph 8.

Article 7

Information and counseling at border crossing points and detention facilities

48. Member States shall ensure that information on procedures to be followed in order to make an application for international protection is made available at:

(a) border crossing points, including transit zones, at external borders; and

(b) detention facilities.

49. Member States shall provide for interpretation arrangements in order to ensure communication between persons who wish to make an application for international protection and border guards or personnel of detention facilities.

3. Member States shall ensure that organizations providing advice and counseling to applicants for international protection have access to the border crossing points, including transit zones, and detention facilities subject to an agreement with the competent authorities of the Member State.

Member States may provide for rules covering the presence of such organizations in the areas referred to in this Article.

ê 2005/85/EC

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Article 78

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

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

51. Member States can make an exception only where, in accordance with Articles 32 and 34, ð a person makes ï a subsequent application ð as described in Article 35 (8) ï will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant[18] or otherwise, or to a third country ð, with the exception of the country of origin of the applicant concerned ï , or to international criminal courts or tribunals.

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

ê 2005/85/EC (adapted)

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Article 89

Requirements for the examination of applications

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

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54. Applications for international protection shall first be examined to determine whether applicants qualify as refugees. If not, they shall be examined to determine whether the applicants are eligible for subsidiary protection.

ê2005/85/EC (adapted)

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

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

(b) precise and up-to-date information is obtained from various sources, such as the United Nations High Commissioner for Refugees (UNHCR) ð and the European Asylum Support Office ï, as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisionsð and, where the determining authority takes it into consideration for the purpose of taking a decision, to the applicant and his/her legal adviser ï ;

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

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

ê 2005/85/EC

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34. The authorities referred to in Chapter V shall, through the determining authority or the applicant or otherwise, have access to the general information referred to in paragraph 23(b), necessary for the fulfilment of their task.

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

Article 910

Requirements for a decision by the determining authority

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

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

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

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

57. For the purposes of Article 6(3)(4), and whenever the application is based on the same grounds, Member States may take one single decision, covering all dependants.

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58. Paragraph 3 shall not apply to cases where disclosure of particular circumstances of a person to members of his/her family can jeopardize the interests of that person, including cases involving gender and/or age based persecution. In such cases, a separate decision shall be issued to the person concerned.

ê 2005/85/EC (adapted)

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Article 1011

Guarantees for applicants for asylum ð international protection ï

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

(a) they shall be informed in a language which they may reasonably be supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. They shall be informed of the time-frame, as well as the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive 2004/83/ECDirective […./../EC] [the Qualification Directive ]. This information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 1112;

(b) they shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary. Member States shall consider it necessary to give these services at least when the determining authority calls upon the applicant to be interviewed as referred to in Articles 12 and 13 13, 14, ð 15, 16 and 30ï and appropriate communication cannot be ensured without such services. In this case and in other cases where the competent authorities call upon the applicant, these services shall be paid for out of public funds;

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

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

(e) they shall be informed of the result of the decision by the determining authority in a language that they may reasonably be supposed to understand when they are not assisted or represented by a legal adviser or other counsellor and when free legal assistance is not available. The information provided shall include information on how to challenge a negative decision in accordance with the provisions of Article 910(2).

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

Article 1112

Obligations of the applicants for asylum ð international protection ï

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

62. In particular, Member States may provide that:

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

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

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

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

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

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

Article 1213

Personal interview

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

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

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Where a person has made an application for international protection on behalf of his/her dependants, each adult to whom the applicant relates must be given the opportunity to express his/her opinion in private and to be interviewed on his/her application .

ê 2005/85/EC (adapted)

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

64. The personal interview ð on the substance of the application ï may be omitted where:

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

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

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

3. The personal interview may also be omitted where

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

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

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

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

65. Irrespective of Article 2024(1), Member States, when deciding on the application for asylum ð international protection ï, may take into account the fact that the applicant failed to appear for the personal interview, unless he/she had good reasons for the failure to appear.

Article 1314

Requirements for a personal interview

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

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

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

(a) ensure that the person who conducts the interview is sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin, ð gender, ï or vulnerability;, insofar as it is possible to do so; and

ò new

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

ê 2005/85/EC (adapted)

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

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

e) ensure that interviews with minors are conducted in a child-friendly manner.

ê 2005/85/EC

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

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

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Article 15

Content of a personal interview

When conducting a personal interview on the substance of an application for international protection, the determining authority shall ensure that the applicant has an adequate opportunity to present elements needed to substantiate his/her application for international protection in accordance with Article 4 (1) and (2) of Directive […./../EC] [the Qualification Directive]. To that end, Member States shall ensure that:

(a) questions addressed to the applicant are relevant to the assessment of whether he/she is in need of international protection in accordance with Directive […./../EC] [the Qualification Directive];

(b) the applicant has an adequate opportunity to give an explanation regarding elements needed to substantiate the application which may be missing and/or any inconsistencies or contradictions in his/her statements.

ê 2005/85/EC

Article 14

Status of the report of a personal interview in the procedure

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

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

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

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

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

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

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Article 16

Transcript and report of personal interviews

69. Member States shall ensure that a transcript is made of every personal interview.

70. Member States shall request the applicant’s approval on the contents of the transcript at the end of the personal interview. To that end, Member States shall ensure that the applicant has the opportunity to make comments and/or provide clarifications with regard to any mistranslations or misconceptions appearing in the transcript.

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

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

72. Without prejudice to paragraphs 1 and 2, Member States may make a written report of a personal interview, containing at least the essential information regarding the application, as presented by the applicant. In such cases, Member States shall ensure that the transcript of the personal interview is annexed to the report.

73. Member States shall ensure that applicants have timely access to the transcript and, where applicable, the report of the personal interview before the determining authority takes a decision.

Article 17

Medico-legal reports

74. Member States shall allow applicants, upon request, to have a medical examination carried out in order to support statements in relation to past persecution or serious harm. To that end, Member States shall grant applicants a reasonable period to submit a medical certificate to the determining authority.

75. Without prejudice to paragraph 1, in cases where there are reasonable grounds to consider that the applicant suffers from post-traumatic stress disorder, the determining authority, subject to the consent of the applicant, shall ensure that a medical examination is carried out.

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

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

78. Member States shall ensure that persons interviewing applicants in accordance with this Directive receive training with regard to the identification of symptoms of torture.

79. The results of medical examinations referred to in paragraphs 1 and 2 shall be assessed by the determining authority along with other elements of the application. They shall, in particular, be taken into account when establishing whether the applicant's statements are credible and sufficient.

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Article 1518

Right to legal assistance and representation

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

81. In the event of a negative decision by a determining authority, Member States shall ensure that free legal assistance and/or representation be granted on request, subject to the provisions of paragraph 3. ð To that end, Member States shall: ï

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(a) provide for free legal assistance in procedures in accordance with Chapter III. This shall include, at least, the provision of information on the procedure to the applicant in the light of his/her particular circumstances and explanations of reasons in fact and in law in the case of a negative decision;

(b) provide for free legal assistance or representation in procedures in accordance with Chapter V. This shall include, at least, the preparation of the required procedural documents and participation in the hearing before a court or tribunal of first instance on behalf of the applicant.

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3. Member States may provide in their national legislation that free legal assistance and/or representation is granted:

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

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

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

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

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

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With respect to the procedures provided for in Chapter V, Member States may choose to only make free legal assistance and/or representation available to applicants insofar as such assistance is necessary to ensure their effective access to justice. Member States shall ensure that legal assistance and/or representation granted pursuant to this paragraph is not arbitrarily restricted.

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4. Rules concerning the modalities for filing and processing requests for legal assistance and/or representation may be provided by Member States.

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

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56. Member States may also:

(a) impose monetary and/or time-limits on the provision of free legal assistance and/or representation, provided that such limits do not arbitrarily restrict access to legal assistance and/or representation;

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

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

Article 1619

Scope of legal assistance and representation

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

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

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(a) grant access to the information or sources in question at least to a legal advisor or counsellor who has undergone a security check, insofar as the information is relevant to the examination of the application or taking a decision to withdraw international protection;

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

83. Member States shall ensure that the legal adviser or other counsellor who assists or represents an applicant for ð international protection ï asylum has access to closed areas, such as detention facilities and transit zones, for the purpose of consulting that applicant.

Member States may only limit the possibility of visiting applicants in closed areas where such limitation is, by virtue of national legislation, objectively necessary for the security, public order or administrative management of the area, or in order to ensure an efficient examination of the application, provided that access by the legal adviser or other counsellor is not thereby severely limited or rendered impossible.

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

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34. Member States may provide rules covering the presence of legal advisers or other counsellors at all interviews in the procedure, without prejudice to this Article or to Article 1721(1)(b).

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

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

The absence of a legal adviser or other counsellor shall not prevent the competent authority from conducting the personal interview with the applicant, ð without prejudice to Article 21 1(b) ï.

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Article 20

Applicants with special needs

85. Member States shall take appropriate measures to ensure that applicants with special needs are given the opportunity to present the elements of an application as completely as possible and with all available evidence. Where needed, they shall be granted time extensions to enable them to submit evidence or take other necessary steps in the procedure.

86. In cases where the determining authority consider that an applicant has been subjected to torture, rape or other serious forms of psychological, physical or sexual violence as described in Article 21 of Directive […/…/EC] [laying down minimum standards for the reception of asylum seekers (the Reception Conditions Directive)], the applicant shall be granted sufficient time and relevant support to prepare for a personal interview on the substance of his/her application.

87. Article 27 (6) and (7) shall not apply to the applicants referred to in paragraph 2.

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Article 1721

Guarantees for unaccompanied minors

88. With respect to all procedures provided for in this Directive and without prejudice to the provisions of Articles 12 and 14 13, ð 14 ï and 15, Member States shall:

(a) as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to ð the lodging and ï the examination of the application. ð The representative shall be impartial and have the necessary expertise in the field of childcare. ï This representative can also be the representative referred to in Article 19 of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers [19] ; Directive […/…/EC] [the Reception Conditions Directive];

(b) ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself/herself for the personal interview. Member States shall allow ð ensure that ï the Ö a Õ representative ð and/or a legal advisor or other counsellor admitted as such under national law are ï to be present at that interview and ð have an opportunity ï to ask questions or make comments, within the framework set by the person who conducts the interview.

Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present.

89. Member States may refrain from appointing a representative where the unaccompanied minor:

(a) will in all likelihood reach the age of maturity before a decision at first instance is taken; or

(b) can avail himself, free of charge, of a legal adviser or other counsellor, admitted as such under national law to fulfil the tasks assigned above to the representative; or

(c)(b) is married or has been married.

3. Member States may, in accordance with the laws and regulations in force on 1 December 2005, also refrain from appointing a representative where the unaccompanied minor is 16 years old or older, unless he/she is unable to pursue his/her application without a representative.

43. Member States shall ensure that:

90. If an unaccompanied minor has a personal interview on his/her application for asylum ð international protection ï as referred to in Articles 12, 13 and 14,13, 14 and 15 that interview is conducted by a person who has the necessary knowledge of the special needs of minors;

91. an official with the necessary knowledge of the special needs of minors prepares the decision by the determining authority on the application of an unaccompanied minor.

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4. Subject to the conditions set out in Article 18, unaccompanied minors shall be granted free legal assistance with respect to all procedures provided for in this Directive.

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5. Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for asylum ð international protection ï ð, where, following his/her general statements or other relevant evidence, Member States still have doubts concerning his/her age ï.

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Any medical examination shall be performed in full respect of the individual’s dignity, selecting the less invasive exams.

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In cases where medical examinations are used, Member States shall ensure that:

(a) unaccompanied minors are informed prior to the examination of their application for asylum ð international protection ï , and in a language which they may reasonably be supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for asylum ð international protection ï , as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination;

(b) unaccompanied minors and/or their representatives consent to carry out an examination to determine the age of the minors concerned; and

(c) the decision to reject an application for asylum ð international protection ï from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal.

The fact that an unaccompanied minor has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for asylum ð international protection ï.

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6. Article 27 (6) and (7), Article 29 (2) (c), Article 32, and Article 37 shall not apply to unaccompanied minors.

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67. The best interests of the child shall be a primary consideration for Member States when implementing this Article.

Article 1822

Detention

92. Member States shall not hold a person in detention for the sole reason that he/she is an applicant for ð international protection ï asylum. ð Grounds and conditions of detention as well as guarantees available to detained applicants for international protection shall be in accordance with Directive […/…/EC] [the Reception Conditions Directive]. ï

93. Where an applicant for asylum ð international protection ï is held in detention, Member States shall ensure that there is a possibility of speedy judicial review ð in accordance with Directive […/…/EC] [the Reception Conditions Directive] ï.

Article 1923

Procedure in case of withdrawal of the application

94. Insofar as Member States provide for the possibility of explicit withdrawal of the application under national law, when an applicant for asylum explicitly withdraws his/her application for asylum ð international protection ï , Member States shall ensure that the determining authority takes a decision to either discontinue the examination or reject the application.

95. Member States may also decide that the determining authority can decide to discontinue the examination without taking a decision. In this case, Member States shall ensure that the determining authority enters a notice in the applicant’s file.

Article 2024

Procedure in the case of implicit withdrawal or abandonment of the application

96. When there is reasonable cause to consider that an applicant for asylum ð international protection ï has implicitly withdrawn or abandoned his