Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status
Date: 2000-09-20
Institutions: European Commission
Subjects: administrative procedure, aid to refugees, international issue, refugee, right of asylum

27.2.2001

EN

Official Journal of the European Communities

C 62 E/231

Proposal for a Council Directive on minimum standards on procedures in Member States for
granting and withdrawing refugee status

(2001/C 62 E/16)

(Text with EEA relevance)

COM(2000) 578 final (cid:16) 2000/0238(CNS)

(Submitted by the Commission on 24 October 2000)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
first
Community, and in particular point
paragraph of Article 63 thereof,

(1)(d) of

the

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of
Committee,

the Economic and Social

Whereas:

(1) A common policy on asylum,
including a Common
is a constituent part of the
European Asylum System,
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.

(2) 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
the Geneva
on the full and inclusive application of
Convention relating to the Status of Refugees of 28 July
1951, as complemented by the New York Protocol of 31
January 1967, thus ensuring that nobody is sent back to
of
persecution,
non-refoulement.

i.e. maintaining

principle

the

(3) 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 Community.

(4) Minimum standards on procedures in Member States for
granting or withdrawing refugee status are therefore a
first measure on asylum procedures without prejudice to
any other measures to be taken for the purpose of
the first paragraph of
implementing point
Article 63 of the Treaty and the objective of a common
asylum procedure agreed on in the Tampere Conclusions.

(1)(d) of

(5) Asylum procedures should not be so long and drawn out
that persons in need of protection have to go through a
long period of uncertainty before their cases are decided,
and persons who have no need of protection but wish to
remain on the territory of
the Member States see an
application for asylum as a means of prolonging their

stay by several years. At
asylum
procedures should contain the necessary safeguards to
ensure that
those in need of protection are correctly
identified.

same

time,

the

(6) The minimum standards laid down in this Directive
to operate a
should therefore enable Member States
simple and quick system that
swiftly and correctly
processes applications for asylum in accordance with
the international obligations and constitutions of
the
Member States.

(7) A simple and quick system for procedures in Member
States could, provided the necessary safeguards are in
place, consist of an initial review of the decision and
the possibility of further appeal.

(8) The necessary safeguards should include that,

in the
interests of a correct recognition of
those persons in
need of protection as refugees within the meaning of
Article 1(A) of the Geneva Convention, every applicant
the opportunity to
has effective access to procedures,
cooperate with the competent authorities to present the
relevant facts of his case and sufficient procedural guar-
antees to pursue his case at and throughout all stages of
the procedure.

(9) On the other hand, in the interests of a system of swift
recognition of those applicants in need of protection as
refugees within the meaning of Article 1(A) of the Geneva
Convention, provision should be made for Member States
to operate specific procedures for processing applications
for which it is not necessary to consider the substance
and those that are suspected to be manifestly unfounded.

(10) Member States are at liberty to decide whether or not to
operate these procedures for inadmissible and manifestly
unfounded cases, but if they do, they should abide by the
common standards laid down in this Directive as regards
the definition of these cases and the other requirements to
apply the procedures,
the
decision-making process.

including time-limits

for

(11)

It is essential that these procedures contain the necessary
safeguards to ensure that earlier doubts can be set aside so
that those who are in need of protection can still be
correctly identified. In so far as is possible, they should
the same minimum
therefore contain,
procedural guarantees and requirements regarding the
decision-making process as regular procedures. However,
given the nature of the cases involved, decision making
can and should be prioritised in both instances and
further appeal may be restricted.

in principle,

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27.2.2001

(12) As minimum procedural guarantees for all applicants in
all procedures should be considered, inter alia, the right to
a personal interview before a decision is taken, the oppor-
tunity to communicate with the UNHCR, the opportunity
to contact organisations or persons that provide legal
assistance, the right to a written decision within the time-
limits laid down and the right of the applicant to be
informed at decisive moments
in the course of his
procedure,
in a language he understands, of his legal
position in order to be able to consider possible next
steps.

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

SCOPE AND DEFINITIONS

Article 1

The purpose of
to establish minimum
standards on procedures in Member States for granting and
withdrawing refugee status.

this Directive is

(13)

In addition, specific procedural guarantees for persons
such as unaccompanied minors,
with special needs,
should be laid down.

Article 2

For the purposes of this Directive:

(14) Minimum requirements

regarding the decision-making
process in all procedures should include that decisions
are taken by authorities qualified in the field of asylum
and refugee matters, that personnel responsible for exam-
ination of applications for asylum receives appropriate
training, that decisions are taken individually, objectively
and impartially, and that negative decisions state the
reasons for the decision in fact and in law.

(15)

(16)

In order to enable every applicant to effectively pursue his
case with the competent authorities of the Member States,
the right to appeal should entail for all applicants in all
procedures the opportunity for a review on both facts and
points of law and should as a rule suspend enforcement
of an adverse decision.

It
is in the very nature of minimum standards that
Member States have the power to introduce or maintain
more favourable provisions for persons who ask for inter-
national protection from a Member State, where such a
the
request
person concerned is a refugee within the meaning of
Article 1(A) of the Geneva Convention.

is understood to be on the grounds that

(17)

In this spirit, Member States are also invited to apply the
provisions of this Directive to procedures for deciding on
applications
than that
for kinds of protection other
emanating from the Geneva Convention for persons
who are found not to be refugees.

(18) The Member States should provide for penalties in the
event of infringement of the national provisions adopted
pursuant to this Directive.

(19) The implementation of this Directive should be evaluated

at regular intervals.

(20) In accordance with the principles of subsidiarity and
proportionality, as set out in Article 5 of the Treaty, the
objectives of
the proposed action, namely to establish
minimum standards on procedures in Member States for
granting or withdrawing refugee status cannot be attained
by the Member States and, by reason of the scale and
effects of
the proposed action can therefore only be
achieved by the Community. This Directive confines
itself to the minimum required to achieve those objectives
and does not go beyond what
is necessary for that
purpose,

(a)

(b)

(c)

(d)

(e)

(f)

AGeneva ConventionB means the Convention relating to the
status of refugees done at Geneva on 28 July 1951, as
complemented by the New York Protocol of 31 January
1967;

AApplication for asylumB means a request whereby a person
asks for protection from a Member State and which can be
understood to be on the grounds that he is a refugee
within the meaning of Article 1(A) of
the Geneva
Convention. Any application for 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;

AApplicantB or Aapplicant for asylumB means a person who
has made an application for asylum in respect of which a
final decision has not yet been taken. A final decision is a
decision in respect of which all possible remedies under
this Directive have been exhausted;

the

ADetermining authorityB means any judicial, quasi-judicial
or administrative body in a Member State responsible for
examining
of
applications for asylum and competent to take decisions
in first instance in these cases. Any authority responsible
for controlling the entry into the territory cannot be
considered as a determining authority;

admissibility

substance

and/or

AReviewing bodyB means any judicial, quasi-judicial or
administrative body in a Member State which is inde-
pendent of and different from the relevant determining
authority in that Member State and responsible for
review of the decisions of this determining authority on
facts and points of law;

AAppellate CourtB means a judicial body in a Member State
independent of the government of the Member State in
question and responsible for further appeal against the
decision of any reviewing body;

(g)

ADecisionB means a decision by a determining authority or
reviewing body in a Member State on the admissibility or
substance of an application for asylum;

(h)

ARefugeeB means a person who fulfils the requirements of
Article 1(A) of the Geneva Convention;

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(i)

(j)

(k)

(l)

ARefugee StatusB means the status granted by a Member
State to a person who is a refugee and is admitted as
such to the territory of that Member State;

AUnaccompanied minorB means a person below the age of
eighteen who arrives on the territory of the Member States
unaccompanied by an adult responsible for him whether
by law or by custom, and for as long as he is not
effectively taken into the care of such an adult;

ADetentionB means confinement of an applicant for asylum
by a Member State within a restricted area, such as
prisons, detention facilities or airport
transit zones,
where his freedom of movement is substantially curtailed;

AWithdrawal of refugee statusB means the decision by a
determining authority to withdraw the refugee status of
the Geneva
a person on the basis of Article 1(C) of
Convention or Article 33(2) of the Geneva Convention;

(m) ACancellation of refugee statusB means the decision by a
determining authority to cancel the refugee status of a
person on the grounds that circumstances have come to
light that indicate that this person should never have been
recognised as a refugee in the first place.

Article 3

State have

dealing with
the Member
applications for asylum, including the instruction to forward
the applications to the competent authority for examination,
together with all relevant information.

instructions

for

4. Where a person has made an application for asylum also
on behalf of his dependants, each adult among these persons
shall be informed in private of his right to make a separate
application for asylum.

Article 5

Applicants for asylum shall be allowed to remain at the border
the Member State in which the
or on the territory of
application for asylum has been made or is being examined
as long as it has not been decided on.

Article 6

Member States shall ensure that decisions on applications for
asylum are taken individually, objectively and impartially.

Article 7

With respect to all procedures provided for in this Directive,
Member States shall ensure that all applicants for asylum enjoy
the following guarantees:

1.
This Directive shall apply to all persons who make an
application for asylum at the border or on the territory of
Member States without prejudice to the Protocol on asylum
for nationals of Member States of the European Union.

(a) They must be informed, prior to examination of

their
application for asylum, of the procedure to be followed
and of their rights and obligations during the procedure,
in a language which they understand.

The provisions of this Directive shall also apply where exam-
ination of an application for asylum takes place within the
the
context of a procedure to decide on the right of
applicant legally to enter the territory of a Member State.

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

3. Member States may decide to apply the provisions of this
Directive to procedures for deciding on applications for kinds
of protection other than that emanating from the Geneva
Convention for persons who are found not to be refugees.

CHAPTER II

BASIC PRINCIPLES AND GUARANTEES

Article 4

The filing of an application for asylum shall not be

1.
subject to any prior formality.

2. Member States shall ensure that the applicant for asylum
has an effective opportunity to lodge an application as early as
possible.

3. Member States shall ensure that all authorities likely to be
addressed by the applicant at the border or on the territory of

(b) They must be given the services of an interpreter, whenever
necessary, for submitting their case to the competent auth-
orities. These services must be paid for out of public funds,
if the interpreter is called upon by the competent auth-
orities.

(c) They must be given the opportunity to communicate with
the United Nations High Commissioner
for Refugees
(UNHCR) or with other organisations that are working on
behalf of the UNHCR at all stages of the procedure.

(d) They must be communicated decisions on applications for
asylum in writing. If an application is rejected, the reasons
for the decision in fact and in law shall be stated and
the
information given on the possibility for review of
decision and, where applicable, on how to file an appeal
and the relevant time-limits.

(e) In the event of an adverse decision, they must be informed
of the main purport of the decision and the possibility for
review of the decision and, where applicable, of how to
request an appeal and the relevant
in a
language which they understand.

time-limits,

(f)

In the event of a positive decision, they must be informed
of the decision and of any mandatory steps, if any, they
should take as a result of this decision, in a language which
they understand.

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Article 8

1.
Before a decision is taken by the determining authority,
the applicant for asylum must be given the opportunity of a
personal interview on the admissibility and/or substance of his
application for asylum with an official competent under
national law.

At the end of a personal

interview as referred to in
2.
paragraph 1, the official must at least read out a transcript
to the interviewee in order
to be able to request his
agreement with its contents.

an efficient examination in accordance with the national rules
pertaining to the procedure in these areas and do not render
access impossible.

3.
In the regular procedure, the applicant’s legal adviser or
counsellor shall have the opportunity to be present during the
the application for
personal
asylum. Member States
rules on the
for
presence of legal advisers or counsellors at all other interviews
in the asylum procedure, without prejudice to this paragraph
and Articles 8(5) and 10(1)(b).

interview on the substance of
shall provide

3. Where a person has made an application for asylum also
on behalf of his dependants, each adult among these persons
must be given the opportunity to express his opinion in private
and to be interviewed on the admissibility and/or substance of
the application.

4. Member States shall ensure that all applicants for asylum
have the right to a legal adviser or counsellor to assist them
after an adverse decision by a determining authority. The
assistance must be given free of charge at this stage of the
procedure if the applicant has no adequate means to pay for
it himself.

4.
A personal interview on the substance of the application
for asylum shall normally take place without the presence of
family members.

5. Member States may permit the competent authorities to
refrain from conducting a personal interview on the substance
of the application for asylum in the case of persons who are
not capable of attending this interview for psychological or
medical
reasons and minors below an age stipulated by
national law or regulation, as long as this does not negatively
affect the decision by the determining authority. In these cases,
each person must be given the opportunity to be represented
by a legal guardian, counsellor or adviser as appropriate.

In the regular procedure referred to in Articles 24, 25
6.
and 26, hereinafter Athe regular procedureB, each applicant for
asylum must be given an opportunity, within a reasonable
time-limit, to consult the transcript of a personal
interview
on the substance of his application for asylum and to make
comments on it.

interview on the substance of

7. Member States shall ensure that an official and an inter-
preter of a sex chosen by the interviewee is involved in the
the application for
personal
asylum if
the person
concerned finds it otherwise difficult to present the grounds
for his application in a comprehensive manner owing to the
experiences he has undergone or to his cultural origin.

there are reasons

to believe that

Article 9

1. Member States shall ensure that all applicants for asylum
have the opportunity to contact in an effective manner organi-
sations or persons that provide legal assistance at all stages of
the procedure.

In closed areas designated for

the examination of
2.
applications
for asylum, Member States may regulate the
access of organisations providing legal assistance, provided
such rules either serve the legitimate purpose of ensuring the
quality of legal assistance or are objectively necessary to ensure

Article 10

1. With respect
in this
Directive, Member States shall ensure that all unaccompanied
minors enjoy the following guarantees:

to all procedures provided for

(a) A legal guardian or adviser must be appointed as soon as
possible to assist and represent them with respect to the
examination of the application;

(b) The appointed legal guardian or adviser must be given the
opportunity to help prepare
the personal
interview on the admissibility and/or the substance of the
application for asylum. Member States shall allow the legal
guardian or adviser of an unaccompanied minor to be
present at the personal interview and to ask questions or
make comments.

them for

2. Member States shall ensure that the personal interview on
the admissibility and/or the substance of the application for
asylum of an unaccompanied minor
is conducted by an
official trained with regard to the special needs of unaccom-
panied minors.

3. Member States shall ensure that:

(a) The competent organisations that carry out medical exam-
inations to determine the age of unaccompanied minors
shall use methods that are safe and respect human dignity;

(b) Unaccompanied minors are informed prior to the exam-
ination of their application for asylum, and in a language
which they understand, about the possibility of age deter-
include
mination by a medical examination. This shall
information on the method of examination and the
possible consequences of the result of the medical exam-
ination for the examination of the application for asylum,
including the consequences of refusal on the part of the
unaccompanied minor to undergo the examination.

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Article 11

1. Member States shall not hold an applicant for asylum in
detention for the sole reason that his application for asylum
needs to be examined. However, Member States may hold an
applicant for asylum in detention for the purpose of taking a
decision in the following cases, in accordance with a procedure
prescribed by national law and only for as long as is necessary:

(a) to ascertain or verify his identity or nationality;

(b) to determine his identity or nationality when he has
destroyed or disposed of his
identity
documents or used fraudulent documents upon arrival in
the Member State in order to mislead the authorities;

and/or

travel

(c) to determine the elements on which his application for
asylum is based which in other circumstances could be lost;

they abide by the
information,
considered confidential
same rules as the determining authorities with respect to the
confidentiality of this information.

if

Article 14

1. Member States shall ensure that:

(a) personnel likely to come into contact with persons at the
stage where they may make an application for asylum, such
as border officials and immigration officers, have received
the necessary basic training to recognise an application for
asylum and how to proceed further in accordance with the
instructions referred to in Article 4(3);

(b) personnel interviewing applicants for asylum have received

the necessary basic training for this purpose;

(d) in the context of a procedure, to decide on his right to

enter the territory.

(c) personnel interviewing persons in a particularly vulnerable
position and minors have received the necessary basic
training with regard to the special needs of these persons;

2. Member States shall provide by law for the possibility of
an initial review and subsequent regular reviews of the order
for detention of applicants for asylum detained pursuant to
paragraph 1.

Article 12

Member States shall take appropriate measures to ensure that
all competent authorities are adequately provided with staff and
equipment so that they can discharge their duties as laid down
in this Directive.

Article 13

1. Member States shall take appropriate measures to ensure
that determining authorities are fully qualified in the field of
asylum and refugee matters. To that end, each Member State
shall ensure that its determining authorities have:

(a) at their disposal specialised personnel with the necessary
knowledge and experience in the field of asylum and
refugee matters;

(d) personnel examining applications for asylum have received
the necessary basic training with respect to international
international
refugee law, national asylum law, relevant
human rights law, this Directive and the assessment of
applications for asylum from persons with special needs,
including unaccompanied minors;

(e) personnel responsible for orders of detention have received
the necessary basic training with respect to national asylum
law, relevant international human rights law, this Directive
and national rules for detention.

2.
Upon request of their reviewing bodies, Member States
shall grant their personnel the same treatment as the personnel
of determining authorities with respect
training
mentioned at paragraph 1(c), where necessary, and (d).

to the

Article 15

1. Member States shall take appropriate measures to ensure
that information regarding individual applications for asylum is
kept confidential.

(b) access to precise and up-to-date information from various
from the UNHCR,
information
sources,
concerning the situation prevailing in the countries of
origin of applicants for asylum and in transit countries;

including

2. Member States shall not disclose or share the information
referred to in paragraph 1 with the authorities of the country
of origin of the applicant for asylum.

(c) the right to ask advice, whenever necessary, from experts
for example, a medical or cultural

on particular issues,
issue.

Upon request of their reviewing bodies, Member States
2.
shall grant them the same treatment as determining authorities
with respect to access to the part of the information mentioned
at paragraph 1(b)
is considered public information.
Member States may decide to grant them access to the part
is
of

the information mentioned at paragraph 1(b)

that

that

3. Member States shall take appropriate measures to ensure
that no information for the purpose of examining the case of
an individual applicant shall be obtained from the authorities
of his country of origin in a manner that would result in the
fact of his having applied for asylum becoming known to those
authorities.

This Article does not affect

4.
the UNHCR’s access to
information in the exercise of its mandate under the Geneva
Convention in accordance with Article 17 of this Directive.

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Article 16

1.
In the event of a voluntary withdrawal of the application
for asylum by the applicant, the determining authority shall
enter a notice in the file discontinuing the examination of
the application.

If an applicant for asylum has disappeared, the deter-
2.
the
mining authority may discontinue the examination of
the applicant has
application if, without reasonable cause,
not complied with reporting duties or requests to provide
information or to appear for a personal interview for at least
30 working days.

If the applicant places himself at the disposal of the auth-
3.
orities for the purpose of the examination of his application for
asylum after the examination of
the application has been
discontinued pursuant to paragraphs 1 or 2, his request may
be considered a new application for asylum.

Article 17

Member States shall take appropriate measures to enable the
UNHCR or other organisations that are working on behalf of
the UNHCR:

(a) to have access to applicants for asylum, including those in

detention and in airport transit zones;

(b) to have access to information on individual applications for
the procedure and on the
for asylum

asylum, on the course of
decisions taken, provided that
agrees;

the applicant

(c) to be able to make representations, in the exercise of its
supervisory responsibilities under Article 35 of the Geneva
Convention, to any competent authorities regarding indi-
the
vidual applications
procedure.

for asylum at any stage of

CHAPTER III

ADMISSIBILITY

Article 18

Member States may dismiss a particular application for asylum
as inadmissible if:

(a) another Member State is responsible for examining the
application, according to the criteria and mechanisms for
determining which Member State
for
considering an application for asylum submitted by a
national of a third country or stateless person in one of
the Member States;

responsible

is

(b) pursuant to Article 20, a third country is considered as a

first country of asylum for the applicant;

(c) pursuant

to Articles 21 and 22, a third country is

considered as a safe third country for the applicant.

Article 19

When a Member State requests another Member State to take
the responsibility for examining a particular application for
inform the
asylum,

requesting Member State

shall

the

applicant as soon as possible of the request, its content and
the relevant time-limits in a language which he understands.

Article 20

A country can be considered as a first country of asylum for an
applicant for asylum if he has been admitted to that country as
a refugee or
reasons justifying the granting of
protection, and can still avail himself of this protection.

for other

Article 21

1. Member States may consider that a third country is a safe
third country for the purpose of examining applications for
in
asylum only in accordance with the principles set out
Annex I.

2. Member States may retain or introduce legislation that
allows for the designation by law or regulation of safe third
countries. This legislation shall be without prejudice to Article
22.

3. Member States which, at the date of entry into force of
this Directive, have in force laws or regulations designating
countries as safe third countries and wish to retain these
laws or regulations, shall notify them to the Commission
this Directive and
within six months of
notify
relevant
as
amendments.

the adoption of
possible

subsequent

soon

any

as

Member States shall notify to the Commission as soon as
laws or regulations designating
possible any introduction of
this
countries as safe third countries after the adoption of
Directive, as well as any subsequent relevant amendments.

Article 22

A country that is a safe third country in accordance with the
principles set out in Annex I can only be considered as a safe
third country for a particular applicant for asylum if, notwith-
standing any list:

(a) the applicant has a connection or close links with the
country or has had the opportunity during a previous
stay in that country to avail himself of the protection of
its authorities;

(b) there are grounds

for considering that

this particular

applicant will be re-admitted to its territory; and

(c) there are no grounds for considering that the country is not

a safe third country in his particular circumstances.

Article 23

If a personal

interview on the admissibility of

1.
the
application for asylum with regard to Article 18(b) or (c) is
conducted with an applicant, Member States shall ensure that
the competent authorities conduct
interview
within 40 working days after the application of the person
concerned has been made.

this personal

shall

States

2. Member
the determining
authority takes a decision dismissing an application for
asylum as
(c)
inadmissible by virtue of Article 18(b) or
within 25 working days following the personal interview.

ensure

that

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If no personal

interview with the applicant has been
3.
conducted, the time-limit for taking a decision shall be 65
working days.

the reasons justifying his need for protection with a view to
helping the competent authorities to determine the elements
on which his application for asylum is based.

Non-compliance with the time-limits in this Article shall
4.
result in the application for asylum being processed under the
regular procedure.

5. When implementing a decision based on Article 22,
Member States may provide the applicant with a document
in the language of the third country informing the authorities
of that country that the application has not been examined in
substance.

CHAPTER IV

SUBSTANTIVE DETERMINATION PROCEDURES

S e c t i o n 1

The regular procedure

Article 24

1. Member States
reasonable time-limit
asylum by the determining authority.

shall adopt by law or
for examination of applications

regulation a
for

2.
In cases in which the determining authority has not taken
a decision within the time-limit referred to in paragraph 1,
applicants shall have the right to request a decision from the
reviewing body. Member States shall determine by law whether
the decision of the reviewing body on this request is to be on
the merits of the case or be a decision setting a time-limit for a
decision by the determining authority. The Member States shall
ensure that the reviewing body takes a decision in these cases
as soon as possible.

3.
The time-limit in paragraph 1 can be extended for six
months if there is reasonable cause. Reasonable cause is, inter
alia, assumed if the determining authority is awaiting clarifi-
cation by the reviewing body or the Appellate Court on an
issue that could affect
the decision on the
the nature of
application.

If the time-limit is extended, the determining authority must
serve written notice on the applicant. An extension of the
time-limit in a particular case is not valid unless notice is
served on the applicant.

Article 25

1. Member States shall take appropriate measures to ensure
that an applicant
for asylum is given the opportunity to
cooperate with the competent authorities in order to present
the relevant facts of his case as completely as possible and with
all available evidence.

An applicant

2.
for asylum shall be considered to have
sufficiently put forward the relevant facts of his case if he
has provided statements on his age, background,
identity,
identity and travel documents and
nationality, travel routes,

After the applicant has made an effort to support his
3.
statements concerning the relevant
facts by any available
evidence and has given a satisfactory explanation for any lack
of
the
applicant’s credibility and evaluate the evidence.

the determining authority must assess

evidence,

4. Member States shall ensure that if the applicant has made
a genuine effort to substantiate his claim and the examiner
finds the applicant’s statements to be coherent and plausible,
while not running counter to generally known facts, the deter-
mining authority gives the applicant the benefit of the doubt,
despite a possible lack of evidence for some of the applicant’s
statements.

Article 26

1. Member States shall ensure that the determining authority
may start an examination to withdraw or cancel the refugee
status of a particular person as soon as information comes to
light indicating that there are reasons to reconsider the validity
of his refugee status.

2.
Each cancellation or withdrawal of refugee status shall be
examined under the regular procedure in accordance with the
provisions of this Directive.

3. Member States may provide for derogation from Articles
7 and 8 in cases where it is impossible for the determining
authority to comply with the provisions for reasons specifically
relating to the grounds for withdrawal or cancellation.

S e c t i o n 2

The accelerated procedure

Article 27

Member States may adopt or retain an accelerated procedure
for the purpose of processing applications that are suspected to
be manifestly unfounded pursuant to Article 28.

Article 28

1. Member States may dismiss applications for asylum as
manifestly unfounded if:

(a) the applicant has submitted, without reasonable cause, an
application containing false information with respect to his
identity or nationality;

(b) the applicant has produced no identity or travel document
and has not provided sufficient or sufficiently convincing
information to determine his identity or nationality, and
there
the
applicant has in bad faith destroyed or disposed of an
identity or travel document
that would help determine
his identity or nationality;

considering

reasons

serious

that

are

for

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(c) a person has made an application for asylum at the last
stage of a procedure to deport him and could have made it
earlier;

(d) in submitting and explaining his application, the applicant
does not raise issues that justify protection on the basis of
the Geneva Convention or Article 3 of the 1950 European
Convention for the Protection of Human Rights and Funda-
mental Freedoms;

(e) the applicant is from a safe country of origin within the

meaning of Articles 30 and 31 of this Directive;

(f)

the applicant has submitted a new application raising no
relevant new facts with respect to his particular circum-
stances or to the situation in his country of origin.

2. Member States shall not consider the following to be
grounds
for asylum as
for
manifestly unfounded:

the dismissal of applications

(a) the applicant has not sought refuge in a part of his country
of origin or, if he is a stateless person, in a part of the
country of
in which he can
reasonably be expected not to be persecuted in the sense
of the Geneva Convention;

former habitual residence,

(b) there are serious reasons for considering that the grounds
of Article 1(F) of the Geneva Convention apply with respect
to the applicant.

Article 29

If

interview on the

the
1.
a personal
conducted with an applicant,
application for asylum is
the competent authorities
Member States shall ensure that
conduct this personal interview within 40 working days after
the application of the person concerned has been made.

substance of

shall

States

ensure

2. Member
the determining
authority takes a decision dismissing an application for
asylum as manifestly unfounded in accordance with Article
28 within 25 working days following the personal interview
with the applicant.

that

If no personal

3.
interview with the applicant has been
conducted, the time-limit for taking a decision shall be 65
working days.

4.
Non-compliance with the time-limits in this Article shall
result in the application for asylum being processed under the
regular procedure.

Article 30

1. Member States may consider a country as a safe country
of origin for the purpose of examining applications for asylum
only in accordance with the principles set out in Annex II.

for

2. Member States may retain or introduce legislation that
allows
safe
countries of origin. This legislation shall be without prejudice
to Article 31.

the designation by law or

regulation of

3. Member States which, at the date of entry into force of
this Directive, have in force laws or regulations designating
countries as safe countries of origin and wish to retain these
laws or regulations, shall notify them to the Commission
this Directive and
within six months of
notify
relevant
as
amendments.

the adoption of
possible

subsequent

soon

any

as

Member States shall notify to the Commission as soon as
laws or regulation designating
possible any introduction of
countries as safe countries of origin after the adoption of
this Directive, as well as any subsequent relevant amendments.

Article 31

A country that is a safe country of origin in accordance with
the principles set out in Annex II can only be considered as a
safe country of origin for a particular applicant for asylum if he
has the nationality of that country or, if he is a stateless person,
it is his country of former habitual residence, and if there are
no grounds for considering the country not
to be a safe
country of origin in his particular circumstances.

CHAPTER V

APPEALS PROCEDURES

Article 32

Applicants for asylum have the right to appeal against any
decision taken on the admissibility or the substance of their
application for asylum.

Appeal may be on both facts and points of law.

Article 33

1.
Appeal shall have suspensive effect. The applicant may
remain in the territory or at the border of the Member State
concerned awaiting the outcome of
the
reviewing body.

the decision of

2. Member States may derogate from this rule:

(a) in cases where a country which is not a Member State is
the applicant

considered as a safe third country for
pursuant to Articles 21 and 22;

(b) in cases

that are dismissed as manifestly unfounded

pursuant to Article 28;

(c) in cases where there are grounds of national security or

public order.

3.
If the suspensive effect of appeal is denied, the applicant
shall have the right to apply to the competent authority for
leave to remain on the territory or at the border of the Member
State during the appeals procedure. No expulsion may take
place until the competent authority has taken a decision on
this request, except in cases where a country which is not a
Member State is considered as a safe third country for the
applicant pursuant to Articles 21 and 22.

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4. Member States shall ensure that the competent authority
processes the request as soon as possible.

If a Member State chooses to introduce such a procedure,
2.
it shall provide for reasonable time-limits for the applicant to
submit written comments.

Article 34

lay down by law or

1. Member States shall
regulation
reasonable time-limits for giving notice of appeal and for
for filing the
filing the grounds of appeal. The time-limit
in no case be less
grounds of appeal
than 20 working days.

in regular cases shall

2. Member States shall lay down all other necessary rules for
including rules to extend the time-limit for
lodging appeal,
filing the grounds of appeal for a reasonable cause.

3.
the
In a procedure providing for automatic review,
provisions of Articles 32(2), 33 and 34(3), (4) and (5) shall
apply.

Article 37

Member States may provide that
the reviewing body shall
decide a case in accordance with the procedure in Article 35
or Article 36 if:

3. Member States shall decide that the reviewing body either
has the power to confirm or nullify the decision of the deter-
mining authority or that it must take a decision on the merits
of the case.

(a) the applicant has, without reasonable cause and in bad
the
faith, withheld information at an early stage of
procedure which would have resulted in the application
of Articles 18 or 28;

4. Member States shall ensure that, if the reviewing body
nullifies a decision,
it remits the case to the determining
authority for a new decision.

(b) the applicant has committed a serious offence on the

territory of the Community;

5.
For the purposes of an expeditious procedure for legal
entry to the territory in accordance with Article 3(2), Member
States may provide for the reviewing body to take a decision
on appeal within seven working days.

Article 35

1. Member States shall ensure that,
in cases where an
application has been found to be inadmissible or manifestly
unfounded,
the reviewing body takes a decision within 65
working days after notice of appeal has been given in
accordance with Article 34(1).

(c) there are manifestly serious reasons for considering that the
grounds of Article 1(F) of the Geneva Convention apply
with respect to the applicant;

(d) there are reasonable grounds for regarding the applicant as
a danger to the security of the Member State in which he is
located;

(e) the applicant, having been convicted by a final judgment of
a particularly serious crime, constitutes a danger to the
community of the Member State in which he is located;

2. Member States may adopt by law or regulation time-
limits for examination by the reviewing body in other cases.

(f)

the applicant is held in detention.

A time-limit in paragraph 1 or 2 may be extended if
3.
there is
inter alia,
reasonable cause. Reasonable cause is,
assumed if the reviewing body is awaiting clarification by the
Appellate Court on a point of law that could affect the nature
of its decision.

If the time-limit is extended, the reviewing body must serve
written notice on the applicant. An extension of the time-limit
in a particular case is not valid unless notice is served on the
applicant.

Article 38

1. Member States shall ensure that in all cases applicants for
asylum have a right to further appeal to the Appellate Court.

If

2.
the reviewing body is an administrative or quasi-
judicial body, Member States shall ensure that the Appellate
Court has the power to examine decisions on both facts and
points of law. If the reviewing body is a judicial body, Member
States may decide that the Appellate Court has to limit its
examination of decisions to points of law.

Article 36

1. Member States may introduce a procedure that provides
for automatic review by a reviewing body of decisions by
determining authorities finding cases to be inadmissible or
manifestly unfounded.

in cases where an
3. Member States may provide that
application has been found to be inadmissible or manifestly
unfounded, the Appellate Court is able to decide whether or
not to give leave to appeal and, in cases in respect of which
leave to appeal
is granted, to examine the decisions in an
abbreviated or accelerated procedure.

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4. Member States may provide that in cases in which the
reviewing body has not taken a decision within the time-limits
provided for in Article 35(1) or (2), applicants and/or deter-
mining authorities shall have the right to request a decision
from the Appellate Court setting a time-limit for a decision by
the reviewing body. Member States may provide for a decision
to be taken by the Appellate Court in these cases as soon as
possible.

lay down by law or

regulation
5. Member States shall
reasonable time-limits for giving notice of further appeal and
for filing the grounds of further appeal. The time-limit for
filing the grounds of further appeal shall in no case be less
than 30 working days.

6. Member States shall lay down all other necessary rules for
filing further appeals, including rules extending the time-limit
for filing the grounds of further appeal for a reasonable cause.

Article 39

1. Member States shall lay down rules by law on suspensive
effect pending the ruling of the Appellate Court.

In all cases in which suspensive effect
for asylum shall have the right

is denied,
the
2.
applicant
to apply to the
Appellate Court for leave to remain on the territory or at
the border of the Member State during further appeal. No
expulsion may take place until a decision has been taken by
the Appellate Court on this request.

3. Member States may provide for a decision to be taken by
the Appellate Court in the cases referred to in paragraph 2 as
soon as possible.

4.
For the purposes of an expeditious procedure for legal
entry to the territory in accordance with Article 3(2), Member
States may require the Appellate Court to rule on the request
pursuant to paragraph 2 within seven working days.

Article 40

Member States may decide that determining authorities also
have the right to further appeal.

CHAPTER VI

GENERAL AND FINAL PROVISIONS

Article 41

Article 42

shall

States

lay down the penalties

The Member
for
infringements of the national provisions adopted pursuant to
this Directive and shall
the measures necessary to
ensure that they are enforced. The penalties laid down must
be effective, proportionate and dissuasive. The Member States
shall notify the Commission of these provisions by no later
than the date specified in Article 44(1) and without delay of
any subsequent amendments affecting them.

take all

Article 43

No later than two years after the date specified in Article 44(1),
the Commission shall report to the European Parliament and
the Council on the application of this Directive in the Member
States and shall propose any amendments that are necessary.
The Member States
the
is appropriate for drawing up this report
information that
not
later than eighteen months after the date specified in
Article 44(1).

send the Commission all

shall

After presenting the report, the Commission shall report to the
European Parliament and the Council on the application of this
Directive in the Member States at least every five years.

Article 44

1.
The Member States shall bring into force the laws, regu-
lations and administrative provisions necessary to comply with
this Directive by 31 December 2002 at the latest. They shall
forthwith inform the Commission thereof.

When the Member States adopt those provisions, they shall
contain a reference to this Directive or be accompanied by
such a reference on the occasion of their official publication.
Member States shall determine how such reference is to be
made.

2. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in the
field covered by this Directive.

Article 45

This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities.

Member States shall apply the provisions of this Directive to
applicants for asylum without discrimination as to sex, racial or
ethnic origin, religion or belief, disability, age, sexual orien-
tation or country of origin.

Article 46

This Directive is addressed to the Member States.

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PRINCIPLES WITH RESPECT TO THE DESIGNATION OF SAFE THIRD COUNTRIES

ANNEX I

I. Requirements for designation

A country is considered as a safe third country if it fulfils, with respect to those foreign nationals or stateless persons to
which the designation would apply, the following two requirements:

A.

it generally observes the standards laid down in international law for the protection of refugees;

B.

it generally observes basic standards laid down in international human rights law from which there may be no
derogation in time of war or other public emergency threatening the life of the nation.

A. The standards laid down in international law for the protection of refugees

1. A safe third country is any country that has ratified the Geneva Convention, observes the provisions of that
Convention with respect to the rights of persons who are recognised and admitted as refugees and has in place
with respect to persons who wish to be recognised and admitted as refugees an asylum procedure in accordance with
the following principles:

F The asylum procedure is prescribed by law.

F Decisions on applications for asylum are taken objectively and impartially.

F Applicants for asylum are allowed to remain at the border or on the territory of the country as long as the

decision on their application for asylum has not been decided on.

F Applicants for asylum have the right to a personal interview, where necessary with the assistance of an inter-

preter.

F Applicants for asylum are given the opportunity to communicate with the UNHCR or other organisations that

are working on behalf of the UNHCR.

F There is provision for appeal to a higher administrative authority or to a court of law against the decision on

each application for asylum or there is an effective possibility to have the decision reviewed.

F The UNHCR or other organisations working on behalf of the UNHCR have,

in general, access to asylum
applicants and to the authorities to request information regarding individual applications, the course of the
procedure and the decisions taken and, in the exercise of their supervisory responsibilities under Article 35 of
the Geneva Convention, can make representations to these authorities regarding individual applications for
asylum.

2. Notwithstanding the above, a country that has not ratified the Geneva Convention may still be considered a safe third

country if:

F it generally observes the principle of non-refoulement as laid down in the OAU Convention governing the
specific aspects of refugee problems in Africa of 10 September 1969 and has in place with respect to the
persons who request asylum for this purpose a procedure that is in accordance with the abovementioned
principles; or

F it has followed the conclusions of the 19-22 November 1984 Cartagena Declaration of Refugees to ensure that
national laws and regulations reflect the principles and criteria of the Geneva Convention and that a minimum
standard of treatment for refugees is established; or

F it nonetheless generally observes in practice the standards laid down in the Geneva Convention with respect to
the rights of persons in need of international protection within the meaning of this Convention and has in place
with respect to the persons who wish to be so protected a procedure which is in accordance with the
abovementioned principles; or

F it complies in any other manner whatsoever with the need for international protection of these persons, either
through cooperation with the Office of UNHCR or other organisations which may be working on behalf of the
UNHCR or by other means deemed in general to be adequate for that purpose as evinced by the Office of the
UNHCR.

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B. The basic standards laid down in international human rights law

1. Any country that has ratified either the 1950 European Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as the AEuropean ConventionB) or both the 1966 International
Covenant on Civil and Political Rights (hereinafter referred to as the AInternational CovenantB) and the 1984
(hereinafter
Convention against Torture and Other Cruel,
referred to as the AConvention against TortureB), and generally observes the standards laid down therein with
respect to the right to life, freedom from torture and cruel,
freedom from
slavery and servitude, the prohibition of retroactive criminal laws, the right to recognition as a person before the
law, freedom from being imprisoned merely on the ground of inability to fulfil a contractual obligation and the right
to freedom of thought, conscience and religion.

Inhuman or Degrading Treatment or Punishment

inhuman or degrading treatment,

2. Observance of the standards for the purpose of designating a country as a safe third country also includes provision
by that country of effective remedies that guarantee these foreign nationals or stateless persons from being removed
in breach of Article 3 of the European Convention or Article 7 of the International Covenant and Article 3 of the
Convention against Torture.

II. Procedure for designation

Every general assessment of the observance of these standards for the purpose of designating a country as a safe third
country in general or with respect to certain foreign nationals or stateless persons in particular must be based on a
range of sources of information, which may include reports from diplomatic missions, international and non-govern-
mental organisations and press reports. Member States may in particular take into consideration information from the
UNHCR.

The report of the general assessment shall be in the public domain.

PRINCIPLES WITH RESPECT TO THE DESIGNATION OF SAFE COUNTRIES OF ORIGIN

ANNEX II

I. Requirements for designation

A country is considered as a safe country of origin if it generally observes the basic standards laid down in international
human rights law from which there may be no derogation in time of war or other public emergency threatening the life
of the nation, and it:

A. has democratic institutions and the following rights are generally observed there: the right to freedom of thought,
conscience and religion, the right to freedom of expression, the right to freedom of peaceful assembly, the right to
freedom of associations with others, including the right to form and join trade unions and the right to take part in
government directly or through freely chosen representatives;

B. allows monitoring by international organisations and NGOs of its observance of human rights;

C.

is governed by the rule of law and the following rights are generally observed there: the right to liberty and security
of person, the right to recognition as a person before the law and equality before the law;

D. provides for generally effective remedies against violations of these civil and political rights and, where necessary, for

extraordinary remedies;

E.

is a stable country.

II. Procedure for designation

Every general assessment of the observance of these standards for the purpose of designating a country as a safe country
of origin must be based on a range of sources of information, which may include reports from diplomatic missions,
international and non-governmental organisations and press reports. Member States may in particular take into
consideration information from the UNHCR.

The report of the general assessment shall be in the public domain.