Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status
Date: 2002-06-18
Institutions: European Commission
Subjects: EU policy, administrative procedure, aid to refugees, international issue, migration policy, refugee, right of asylum

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

(2002/C 291 E/06)

COM(2002) 326 final — 2000/0238(CNS)

(Submitted by the Commission on 18 June 2002)

EXPLANATORY MEMORANDUM

1. Background

On 20 September 2000 the Commission adopted a draft Council Directive on minimum standards on
procedures in Member States for granting and withdrawing refugee status (1).

The proposal was sent to the Council, the European Parliament and the Economic and Social Committee.

The Economic and Social Committee delivered a favourable opinion on 25 and 26 April 2001 (CES
530/2001).

On 20 September 2001 the European Parliament adopted its Opinion in plenary, approving the
Commission proposal subject to amendments and calling on the Commission to amend its proposal
accordingly. On the basis of a report presented to the plenary by Mr Watson, chairperson of the
Committee on Citizen's Freedoms and Rights, Justice and Home Affairs, the European Parliament has
adopted 106 amendments (A5-0291/2001) (2).

In the Council the proposal has been the subject of negotiations in the course of 2001. During the Belgian
Presidency, the December 2001 Council adopted Conclusions with regard to the approach taken by the
future Directive (3).

The declaration of the Laeken European Council requested the Commission to bring forward a modified
proposal.

2. An overview of the new proposal

In conformity with the Council Conclusions, this proposal sets out a different structure for asylum
procedures in Member States and amends a considerable number of the minimum standards proposed
by the Commission.

In addition, it takes over a number of the amendments of the European Parliament, either in the recitals or
in the text of the proposal.

The following key changes have been made:

1. Following suggestions from certain Member States and the European Parliament, most if not all
guarantees in Chapter II have been modified, i.e. either upgraded in terms of the level of protection
accorded to applicants for asylum or qualified, to take into account specific circumstances or exceptions
occurring in practice, methods or safe guards against abuse and certain national conditions or particu-
larities;

2. In accordance with the Council Conclusions the classification of procedures of former chapters III and
IV has been re-organised. Instead of a separate admissibility procedure, applications considered as
inadmissible may be processed in accelerated procedures;

(1) COM(2000) 578 final (OJ C 62 E, 27.2.2001, p. 231).
(2) OJ C 77 E, 28.3.2002, p. 94.
(3) (15107/1/REV 1). Press release 14581/01 (Presse 444), 2396th Council Meeting Justice, Home Affairs and Civil

Protection, Brussel, 6 and 7 December 2001.

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3. Following suggestions from some Member States special standards on two new types of accelerated
procedures are introduced: a procedure to examine applications lodged at the border or on the entry to
the territory and a procedure in which the need to initiate a new procedure for a subsequent
application is assessed;

4. New cases of inadmissible applications are introduced, whilst other cases of applications, where there is
evidence of misconduct by the applicant or abuse of the procedure, may also be processed in accel-
erated procedures;

5. Obligations to set a reasonable time limit for taking a decision under the regular procedure, to consider
non-compliance with this time limit as a negative decision against which an applicant can lodge an
appeal, as well as obligations for appeal bodies to take decisions within a reasonable time limit have
been deleted;

6. The obligation to introduce a two level appeal system, in which a court of law is competent at least
once to review a decision is replaced, in accordance with general principles of Community law, by the
right of every applicant for asylum to have an effective remedy before a court of law against a decision
on his application, leaving the institutional arrangements for review or appeal to national discretion.

7. Following an amendment from the European Parliament, it is proposed that the implementation of this

particular asylum Directive should be evaluated at regular intervals not exceeding two years.

Commentary on Articles

Recitals

The recitals have been altered to accord with the changes in the text. In addition, they reflect (parts of)
amendments 2, 3, 4, 5, 8, 11, 17, 21 of the European Parliament.

Chapter I

Scope and definitions

Article 1

This Article defines the purpose of the Directive.

Article 2

This Article contains definitions of the various concepts and terms used in the provisions of the proposal.
Following the changes to the appeals chapter, the definitions of ‘reviewing body’,
‘appellate court’ and
‘decision’ are deleted as redundant. The reference to a determining authority of a ‘judicial’ character as well
as the references to the different locations for detention have been deleted as redundant. A definition of
‘representative’ is added to clearly describe the different persons or organisations representing unaccom-
panied minors in the Member States. It follows the definition in the 1997 Third Pillar Resolution on
unaccompanied minors who are nationals of third countries. The term ‘refugee’ is defined in the modified
proposal in connection with the proposal for a Council Directive on minimum standards for the qualifi-
cation and status of third country nationals and stateless persons as refugees or as persons who otherwise
need international protection (COM(2001) 510 final). A separate definition of ‘final decision’ is introduced
to improve the legal clarity of the text.

Article 3

The reference to the Protocol on asylum for nationals of Member States of the European Union, annexed
to the Treaty establishing the European Community, is removed to a recital.

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Article 4

In order to emphasise that Member States are free to provide for more favourable standards on procedures,
which was asked for by the European Parliament in its amendment number 18, a new Article has been
inserted to that purpose.

Chapter II

Basic principles and guarantees

Article 5

Former Article 4 has mainly been amended to take account of a number of proposals discussed at expert
level in the Council.

1. This paragraph ensures that Member States do not reject or exclude an application for asylum from
examination on the sole ground that it has not been made as soon as possible. Time limits for
requesting protection as such are not prohibited, but only insofar as they may be used to circumvent
an appropriate examination of an application.

2. According to the second paragraph Member States may require that applications be made in person,
meaning that in such a case a legal adviser or other counsellor can not act on behalf of the person.

3. Although applications are usually made in person pursuant to paragraph 2, some Member States allow
for applications to be made on behalf of others. Building upon former Article 4(4) which accepted this
this proposal sets forth a number of additional guarantees in this paragraph and the
practice,
subsequent one. Paragraph 3 provides rules on the issue of persons who cannot make an application
on their own behalf (minors below an age to be determined by national law, cases of unaccompanied
minors in which a representative has to file the application).

4. This paragraph, on the other hand, provides minimum guarantees in case Member States would like to
provide by law that an application for asylum can also be made by an applicant on behalf of
dependants (spouse, minors etc).
In order to prevent any misunderstanding or abuse, the person
concerned must explicitly request that an application be made on his/her behalf. This implies that
this person can no longer lodge a separate application. If this person lodges a separate application,
Member States may reject the application on the basis of the application that was already made.

5. This paragraph is to ensure that after an application is made in a Member State, the refugee status
determination procedure must start without delay, even if formal requirements are to be fulfilled on the
basis of national law (e.g. filling in an application form, reporting to a specific location for identification
purposes).

6. This paragraph incorporates two obligations formerly listed in different Articles: the obligation to
ensure that all authorities likely to be addressed at the border or on the territory have the instruction
to forward applications to the competent authority for examination (former Article 4(3) and the
obligation to give training to the personnel of these authorities for that purpose (former Article
14(1)(a)).

Article 6

1. The scope of the Article has been clarified by adding a reference to determining authority. The
obligation concerns the right to remain pending the decision taken in first instance. The right to
remain pending review or appeal depends on the application of Articles 39 and 40.

2. The second paragraph refers to a new Article that allows Member States to have a special procedure for
subsequent applications (see Articles 33 and 34). A preliminary examination would allow Member
States to examine whether or not there is reasonable cause to ‘open a new asylum procedure’. From the
moment it is decided not to do so, Member States are free to remove applicants from their territory on
the basis of an earlier decision. The issue of suspensive effect of review or appeal is dealt with in
Chapter IV.

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Article 7

Former Articles 6, 13(1), 14(1)(d) are assembled in one Article under the heading of requirements for the
examination of applications. The standards reflect key elements of a fair and efficient refugee determination
process and are therefore grouped together. Point (b) of Article 7(1) splits the obligation of former Article
14(1)(d) into an obligation to obtain country of origin information and the one to provide the personnel
examining and deciding on applications with this information. The obligation in the second paragraph has
undergone little substantive changes.

Article 8

The notion of a fair and efficient procedure should also be reflected in standards on the formal and
material requirements for decisions themselves. These standards were previously submerged in the Article
on procedural guarantees for applicants. It is now proposed to introduce a separate Article, more or less
taking over the wording of former Article 7(d).

Article 9

This Article sets out guarantees for every applicant during the examination of his application for asylum
by the determining authority both under the accelerated procedure and the regular procedure. Former
Article 7 has undergone a number of changes of substance following discussions in the Council.

Paragraph 1 has been fine-tuned as follows:

(a) The provision on information underlines that information must be given in time to enable the
applicant to both exercise his rights and comply with the obligations as referred to in this Directive.
The method is not prescribed. As suggested by amendment 23 of the European Parliament, this could
be done by means of an information sheet; e.g. a standard document about the procedure in a
language an applicant can be reasonably expected to understand. The point of the change is also to
underline that the information need not be given all at once, as long as it is given in time to exercise
rights and to comply with obligations.

(b) It is now clarified that Member States shall at least ensure that when the applicant is called upon to be
interviewed before a decision in first instance is taken — be this the interview described in Articles 10
to 12 or any other interview at this stage of the procedure — he shall be provided with the services of
an interpreter.

(c)

Instead of providing an opportunity for the applicant to communicate with (a representative of) the
UNHCR or any other organisation working on behalf of the UNHCR, Member States are merely
obliged not to deny the applicant such an opportunity.

(d) This subparagraph introduces the concept of notification, underlining the need for an official
communication to the applicant of his or her decision. It should be part of the set of minimum
standards for first stage harmonisation. Two obligations are imposed. Firstly, the applicant for asylum
should be notified of the decision in first instance within reasonable time after the decision has actually
been taken. Secondly, the decision should be notified in an appropriate manner. Notification should
ensure that the decision is delivered in person. This can be done by sending it by mail to the address
the applicant has supplied or actually handing over the decision to the applicant himself (e.g. in a
reception centre where he or she is awaiting the outcome of the procedure). To allow flexibility in
implementing this potentially far-reaching obligation,
it is added that if a legal advisor or other
counsellor represents the applicant,
the decision can be notified to this advisor or counsellor
instead. Representing in this respect means that the advisor or counsellor replaces the applicant in
legal acts. If the decision can not be notified as described above, e.g. because the
certain formal
applicant has disappeared,
the decision should be notified in another appropriate manner.
Depending on national practice, this could be through publication in an official journal, delivery at
the last known address of the applicant or to the legal advisor or other counsellor last known to be
representing the applicant etc. Disappearing should not prevent the promulgation of the decision.

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(e) As in the first proposal, the decision itself does not require translation into a language the applicant
understands. As applicants in most if not all cases may not read or fully understand the official
language of the Member State, they should at least be informed of the purport of the decision in a
language they can reasonably be expected to understand. It has been suggested by Member States that
the text should reflect that the legal advisor or other counsellor concerned (with the aid of an inter-
preter) should in principle rather do this task. However,
it is
necessary that Member States themselves ensure an appropriate communication to the applicant by
other means in keeping with the principle. Member States can, for instance, attach a (standard)
information leaflet to the decision.

if an applicant is not represented,

Paragraph 2 replaces former Article 8(3). Paragraph 3 provides that most of the guarantees are also
it is not necessary to take up in the complete list of
applicable during appeal or review. However,
guarantees. The obligation under sub (a),
the (entire) procedure to be
followed, has in any case already been complied with in first instance. As for the obligation under sub
(e), the national level is considered a more appropriate level to regulate the communication of judgements
of appeal bodies to the persons concerned.

to inform the applicant of

Article 10

Articles 10, 11 and 12 contain standards relating to the personal interview, offering both guarantees to
applicants where necessary and flexibility to Member States where appropriate. Former Article 8 is split
into three different provisions outlining respectively the personal scope of the obligation to conduct an
interview, the objective requirements for the setting of the interview and the function of the (result of the)
personal interview, i.e. the transcript, in the determination process.

Article 10 concerns those invited to a personal interview before a decision is taken by the determining
authority. Article 10 substitutes former Article 8(1) and paragraph 5. Depending on the stage and nature
of the procedure, this Article refers to the personal interview on the admissibility and/or the substance or
to the personal interview on the substance.

The principle that each applicant for asylum should have the opportunity to submit his case in a personal
interview is fully maintained in paragraph 1. As in all administrative procedures, an exchange of
information is important for a decision to be taken on the basis of the relevant facts. Asylum procedures
generally differ from other administrative procedures in the sense that applicants for asylum are not always
able to provide the administration with clear-cut, written evidence to substantiate a need for international
protection. Since in most if not all asylum cases the determining authority must assess the credibility of
statements and/or of the applicant on the basis of all available facts,
it is imperative for a proper
assessment that applicants have, as much as possible, the opportunity to bring these forward in a
personal manner, i.e. in an interview.

The possibility of deferring personal interviews is left to national discretion.

It is found that in practice a personal interview is not necessary in a certain number of cases and that this
should be regulated in this Directive. The four exceptions to the principle provided for in paragraph 2
build upon the cases described in former Article 8(5). This is considered to be an exhaustive list of cases in
which Member States are not obliged to offer the applicant the opportunity to be interviewed. In all other
cases, Member States must ensure that the applicant has at least the opportunity of an interview. Whether
or not the applicant avails himself of this opportunity is not important for the purposes at stake. Hence
paragraph 4, which provides that the fact that no interview has taken place, does not prevent the
the determination process can be
determining authority from taking a decision, ensuring that
completed in such cases.

To uphold the principle outlined above, a provision is needed in case the relevant facts can not be
submitted in the specific setting of a personal interview for reasons beyond the control of the applicant.
Paragraph 3 therefore provides that in the cases referred to in the second subparagraph of paragraph 1,
paragraph 2(b), (c) and (d) the applicant must be offered the opportunity, before a decision is taken by the
determining authority, to make comments in lieu of a personal interview, where appropriate through the
assistance of a legal adviser or other counsellor and/or, in the case of a minor, a legal guardian.

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Article 11

Article 11 merges all provisions on the requirements for the organisation of the personal
interview.
Paragraph 1 takes up former Article 8(4) without changing the language. Paragraph 2 ensures in
interviews are conducted in conditions which allow applicants to present
general terms that personal
the grounds for their applications in a comprehensive manner, including the issue of selecting an inter-
preter. It replaces former Article 8(7), which merely regulated the specific issue of a gender sensitive
approach during the interview. Paragraph 2(b), last sentence, allows Member States for economical reasons
to choose an interpreter of a more common language when it does not harm the interests of the applicant.

Article 12

This Article distinguishes between two different situations relating to the status of the transcript of the personal
interview in the procedure. It joins together and fine-tunes paragraphs 2 and 6 of former Article 8.

1. This paragraph introduces the obligation to make a transcript of every personal interview.

2. As a reflection of the principle of a fair and effective procedure this paragraph lays down the general
rule that Member States have to ensure that in all cases applicants have timely access to the transcript
of the personal interview on which the decision is or will be based. This enables the applicant to
exercise his appeal rights properly and it enables appellate bodies, where appropriate, to verify whether
the decision is based on relevant information. It is underlined that the obligation is no longer restricted
to the regular procedure.

3. This provision regulates the specific situation in some Member States where the applicant's approval is
it must be
requested on the contents of the transcript of the personal interview. Where requested,
ensured that the applicant has the opportunity to request or propose corrections because of mistrans-
lation or misconceptions appearing in the transcript. In order to ensure the effectiveness of the decision
making process, a complementary provision is proposed in case the applicant refuses to agree with the
contents of the transcript of the personal interview. Member States should in such a case be able to take
a decision on the application for asylum.

Article 13

Former Article 9 (legal assistance) is split into two Articles.

Article 13 sets out the right to legal assistance during the asylum procedure and Article 14 the rights of
legal advisers or other counsellors. Legal assistance is understood to be any form of assistance or repre-
sentation by a person relating to the examination of the asylum application. It may be given by a legal
adviser or other counsellor qualified to do so in accordance with national law.

In Article 13 further conditions are added for the applicant to qualify for free legal assistance after a
negative decision.

Paragraph 1 lays down the general rule on the right to legal assistance and representation. Every applicant
must have the opportunity to consult (instead of to contact) in an effective manner a legal adviser or other
including
counsellor on matters relating to their asylum applications at all stages of the procedure,
following a negative decision.

Paragraph 2 lays down the rules for free assistance after a negative decision. Upon suggestion of some
Member States new qualifying factors are added to the availability of legal assistance free of charge after an
adverse decision by a determining authority. First, applicants will have to request such assistance. Second,
Member States may subsequently provide for an examination of its necessity. Such an examination may
include a test of sufficient resources and a legal merits test. Where Member States apply these tests,
Community law should not go into detail as to the grounds and the procedure, but rather merely lay
down the general approach. It is therefore proposed to merely lay down the standard adopted in Article 47
of the Charter of Fundamental Rights of the European Union. Third, Member States are allowed to restrict
legal assistance given free of charge to those legal advisers or other counsellors who are specifically
designated by national law to assist and/or represent applicants for asylum. This means that applicants
will remain free to choose a legal adviser or other counsellor, but can no longer invoke the right to free
legal assistance in such cases.

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Article 14

This Article provides three rights of legal advisers or other counsellors: the right to access to the file of the
applicant, the right to visit the applicant in closed areas and the right to attend a personal interview. The
rights in the first and third paragraph are new.

1. The legal adviser or other counsellor shall enjoy access to the information in the applicant's file to be
able to properly represent his client's interests in all situations. However, this rule does not mean that
such persons have access at any time or to all information. Member States are allowed to maintain
practical arrangements in this respect. As regards the information held in the file of the applicant,
Member States will only be obliged to grant access to the information which is liable to be examined by
the authorities referred to in Chapter IV.

Former Article 9(2) has been revised to both better convey the underlying principle and delineate the
obligations of Member States towards granting access to legal advisers or other counsellors to applicants
for asylum in closed areas. Firstly, it is now proposed that Member States may only control access to
applicants for asylum in closed areas where it is necessary for the security of the area or necessary to
ensure an efficient examination. The reference to quality of legal assistance is substituted with a
reference to security in these areas. In order to ensure efficient examination of asylum applications
in closed areas, including compliance with time-limits for decision making laid down in national laws
or regulations, Member States can choose to set rules for the timing and the duration of the access to
asylum applicants by legal advisers or other counsellors. Secondly, the right is not open to any legal
adviser but restricted to the legal advisers or other counsellors who actually assist and/represent the
applicants staying in closed areas. Lastly, following amendment 34 of the European Parliament, it is
added that the restrictions on the basis of this paragraph should be strictly necessary for the purposes
described and should never result in the effective annulment of the right to have access to legal
assistance.

2. Contrary to former Article 9(3), this provision extends the presence of a legal adviser or counsellor at
there are some

interviews to interview under

the accelerated procedure.

In addition,

personal
amendments in the language.

Article 15

This Article introduces the necessary additional procedural guarantees for unaccompanied minors
following the December 1998 Vienna Action Plan and the Scoreboard.

Paragraph 1 specifies the procedural guarantees to be provided to all unaccompanied minors, irrespective
of the nature of the procedure used to process their application. A change of definition has occurred (i.e.
the introduction of the notion of representative), whilst a cross-reference to Article 10(3) is necessary (the
possibility of not inviting a minor for a personal interview on the application for asylum). The idea of the
original proposal, that the representative assisting an unaccompanied minor, could, where appropriate,
discuss with the unaccompanied minor the need to continue the procedure where other options appear to
be available, is fully maintained.

Paragraph 2 focuses on the conditions for examining and deciding on an application made by an
unaccompanied minor. Former Articles 10(2), 14(1)(c) and (d) are joined together. As a minimum
standard the personal interview must be conducted by a person who has the necessary knowledge of
the special needs of minors (sub a). This also applies for the official who takes the decision on the
application (sub b).

Paragraph 3 lays down two procedural standards in case a Member State uses medical examinations to
determine the age of unaccompanied minors. Subparagraph (a) has been pruned back to its essentials: the
obligation to inform the unaccompanied minor of the possibility of such a medical examination. Whilst an
unaccompanied minor can refuse to undergo a medical examination, this refusal should not prevent the
determining authority from taking a decision on his application. To ensure a fair assessment it is therefore
proposed to add by way of a guarantee that a rejection of the application can not be based solely on the
refusal of the minor. This guarantee is similar to the one relating to a refusal to approve with the transcript
of the interview in Article 12(2). It goes without saying that the methods used for medical examinations to
determine the age of unaccompanied minors should be safe and respect human dignity. The former Article
10(3)(a) is deleted.

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Article 16

This Article lays down the investigative standards common to the examination of all applications for
asylum. Former Article 25 has seen mainly drafting changes. However, it has been moved from the chapter
on substantive determination procedures, regular procedures section to the chapter on basic principles and
guarantees as the examination under the accelerated procedure must,
in accordance with the Council
Conclusions, entail a substantive examination in light of the Geneva Convention. The standards are
therefore also fully applicable under the accelerated procedure.

Article 17

Article 17 sets a minimum framework for assessing the legitimacy of cases of detention but takes a
different angle than former Article 11.
Instead of exhaustively enumerating legitimate grounds for
detention, it is proposed to limit the scope of Community law related to first stage harmonisation to
laying down guarantees as regards the exceptions to the principle that an applicant should not solely be
detained because he is an applicant for asylum. The guarantees listed in paragraph 1 are twofold: a
description in general terms of the aim of detention in an asylum procedure and procedural guarantees.
As to the aim, Member States should base individual grounds for detention on either the need for an
efficient examination of an asylum application or the prevention of absconding by the applicant. The
procedural guarantees, on the other hand, are that the detention is in accordance with a procedure laid
down by national law or regulation that each decision to detain a specific applicant is either objectively
necessary for an efficient examination or, in the case of a risk of absconding, based solely on an assessment
of the personal conduct of the applicant. Moreover, initial and subsequent judicial reviews of the detention
order should take place. The courts in question should have the necessary competence to review detention
orders pursuant to this provision.

Following practice in some Member States, paragraph 2 introduces the option for Member States to detain
applicants at the beginning of the procedure in order to take a quick decision. The time limit of two weeks
serves as a basic guarantee against abuse.

It is underlined that the scope of this Article is limited to the stage of the examination of an application for
asylum by the determining authority. It follows from the wording of paragraph 1 that national policies on
detention for other reasons (national security, penal proceedings etc) remain untouched. Moreover,
Member States are free to provide for detention on other stages of the procedure, such as detention to
safeguard the possibility of expulsion or detention of an applicant for asylum whose application is rejected.

Article 18

In order to strengthen the mechanism for determining the Member State responsible for examining an
application for asylum in the EU, it is proposed that Member States may detain an applicant awaiting his
or her transfer to another Member State. This provision should not be incorporated in Article 17 since the
temporal scope is different from the cases described in that Article, for the transfer to another Member
State will take place after the application is rejected as inadmissible. The proposal for a Council Regulation
establishing the criteria and mechanisms for determining the Member State responsible for examining an
asylum application lodged in one of the Member States by a third country national (COM(2001) 447 final)
stipulates that transfer shall take place within six months. In cases where an applicant is detained, the
transfer should be expedited. It is therefore proposed to limit detention in this situation to one month.

Article 19

Articles 19 and 20 represent a significant addition to the minimum standards in the original proposal.
They are the result of extensive discussions at expert level on the principles laid down in former Article 16.
It is considered imperative for reasons of efficiency to lay down clear and precise standards on what to do
when procedures are interrupted or broken off, either as a result of an explicit withdrawal (Article 19) or
for other reasons (Article 20). Whilst the standards exhaustively describe procedural options Member States
have, they also spell out the guarantees necessary to ensure an appropriate examination of applications in
these cases.

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This Article is about explicit withdrawal of the application, therefore withdrawal by the applicant himself
either in writing or orally, done in person or by his legal adviser or other counsellor. Discussions at expert
level showed the need of Member States for flexibility in these cases. Therefore the Directive offers a choice
to Member States whether to discontinue the examination or to reject the application if the applicants
wants to withdraw his application. It is assumed that a rejection on the merits of the case (i.e. a rejection
because the applicant has no well founded fear for persecution according to the Geneva Convention) is
only possible if the determining authority has enough information to do so (in most case presumably only
after the personal interview). If the examination is discontinued after withdrawal without a decision, a
notice in the file will serve as a proof of the withdrawal (paragraph 2). This is important in case the
applicant shows up afterwards and lodges another application or wishes to re-open his earlier application.
This Article does not specify what happens in such cases. Member States will have to examine the
application in accordance with the other standards. For this, Article 38 (right to an effective remedy)
provides a possible mechanism.

Article 20

This Article deals with the situation in which an applicant for asylum does not explicitly withdraw his
application but appears to have no interest in a decision on this application. Admittedly, the behaviour of
an applicant can justify the conclusion that he implicitly wants to withdraw or abandon his application
and this should be acknowledged in the Directive.

Paragraph 1 provides for the grounds for such an assumption of withdrawal or abandonment of an
it concerns cases of non-compliance (with obligations or time limits, etc.) or
application. In general
lack of cooperation, including the cases where a person has disappeared (without authorisation). Like in
Article 19(1), Member States are free either to take a decision to discontinue the examination of the
application or to reject it.

Paragraph 2 is about what should happen if the applicant re-appears. Regardless of the national arrangements
in place to deal with such cases, the basic guarantee shall have to be that the person concerned can not be
removed to his country of origin before it is established that he has no well-founded fear for persecution.
Though this idea underlies the whole Directive, it is of a specific interest here when an individual case is not
re-opened. If a case is re-opened, Member States may decide to take up the examination at the stage in which
the application was discontinued previously or choose to start from the beginning. If the application has been
rejected instead of discontinued, and the rejection has become final, Member States may apply the specific
procedure for subsequent applications described in Articles 33 and 34.

Article 21

Minor drafting changes have been made in the first sentence and the last subparagraph. The original
wording of Article 17(c) has been changed into ‘to present its views’ to avoid the impression, that Member
States are obliged to involve the UNHCR in appeal proceedings in the same way as the applicant and the
determining authority are involved in such procedures.

Article 22

In a recital it is acknowledged that Council Directive 95/46/EC on the protection of individuals with regard
to the processing of personal data and on the free movement of such data applies to transmissions of data
under the terms of this Directive and that this should also apply to transmissions of data to UNHCR.
Former Articles 15(1) and paragraph 4 have therefore been deleted. The use of data by UNHCR itself is not
subject to national law but is governed by strict norms on confidentiality by the United Nations General
Assembly.

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Chapter III

Procedures at first instance

Article 23

Article 23, indicating the choice of procedures Member States have,
is a new provision. It takes into
account the Council Conclusions which underscored that the Directive should contain an accelerated
procedure for inadmissible and manifestly unfounded applications (former chapters III and IV section 2)
and a regular procedure (former chapter IV section 1), as well as subsequent consultations on special rules
for repeat applications and applications examined at external borders. As a result of the focus on the
accelerated procedures, the regular procedures remain the responsibility of the Member States subject to
the provisions in chapter II (basic principles and guarantees) and chapter IV (appeal procedures).

Article 24

This Article, which consists of elements from former Articles 23 and 29, is simplified and considerably
modified as a result of the Council Conclusions. Paragraphs 1 to 3 follow the language of the Conclusions.

It is inserted in paragraph 2 that an extension is only valid after notice is served on the applicant or his
legal adviser or other counsellor, thereby taking over the wording of former Article 24(3), last sentence,
and taking into account the changes made to former Article 7 of the role of legal assistance towards
informing the applicant. This standard serves the legitimate purpose of legal certainty.

Paragraph 3 deals with the consequence of non-compliance with the time limits. Moreover, in line with the
Council Conclusions it is added that where an applicant is at the origin of non-compliance with the time
limit, he/she cannot invoke its consequence. The use of this provision must be reserved to cases of abuse.

Paragraph 4 introduces a special mechanism for a particular group of cases that could not but should
nevertheless have been decided under the accelerated procedure. It is recognised that time limits bear the
risk, that certain applicants are tempted to stall the examination of their case, e.g. by withholding relevant
information on purpose, in order to have their case examined under the regular procedure, whereas the
facts of their case merit an accelerated procedure. Member States should in some of these cases have the
opportunity to consider a decision on the application as a decision taken under the accelerated procedure,
even though it is not taken within the time limits. To that end, it should be ascertained that the applicant
has a) withheld crucial information and b) done so without reasonable cause and in bad faith. A similar
provision was provided for in Article 37 of the original proposal, though technically different for it was
placed under the appeals chapter. It is underlined that this paragraph is not applicable if the applicant
could not have provided the relevant information earlier, for instance because he only received relevant
documentation after four months. In such a case, extension of the time limit would be more appropriate.

Paragraph 5 makes clear that every rejection of an application on the proposed Dublin II Regulation is
considered a decision taken under the accelerated procedure, regardless of the time frame within which the
decision was taken.

Article 25

Article 25 lists the cases in which Member States may reject an asylum application as inadmissible. Under
category (a), inadmissibility relating to the mechanism created by the Dublin Convention and soon to be
communitarised, a reference is added to Norway and Iceland in view of the adoption of the Council
Decision concerning the conclusion of an agreement between the European Community and the Republic
of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State
responsible for examining a application for asylum lodged in a Member State or Iceland or Norway
(Council Decision of 15 March 2001 (2001/258/EC). Moreover,
the wording is changed (‘has
acknowledged responsibility’ instead of ‘is responsible’) in the spirit of amendment 56 of the European
Parliament.

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Moreover, following consultations with Member States, the categories in former Article 18 are supple-
mented by two categories proposed in the Commission working document on the relationship between
safeguarding internal security and complying with international protection obligations and instruments
(COM(2001) 743 final). It concerns two sets of cases, namely (a) where an international criminal court has
indicted the individual who has claimed asylum and (b) where an extradition request from a country other
than the country of origin of the applicant, is pending. Further discussions on these new grounds may be
necessary.

Article 26

Former Article 20 has been slightly amended. It is laid down that the level of protection in the first
country of asylum must be in accordance with the standards laid down in international law.

Article 27

Former Article 21 remains unchanged, with the exception of the last subparagraph in paragraph 3. In
conformity with amendment 58 of the European Parliament it is added that Member States shall provide
reasons for each change in the designation of a country as a safe third country. A similar amendment has
been made to former Article 30 (now 30) on the designation of safe countries of origin.

Article 28

in
Former Article 22 has seen some minor modifications. First,
subparagraph (a) is deleted as redundant. Second, the word ‘admitted’ is added to take account of the
situation where a person has never been in the third country before, but solely has a connection or close
links to the country. Third, former Article 23(5) is moved to this Article, whilst ‘may’ is changed in ‘shall’,
following amendment 63 of the European Parliament. Despite these modifications,
it is expected that
further discussions are necessary.

the reference to ‘a previous stay’

Article 29

The former Article on manifestly unfounded applications is split into two separate Articles: one on the
rejection of manifestly unfounded cases (Article 29) and another on the rejection of other cases on
substantive grounds under the accelerated procedure (Article 32). The notion of ‘manifestly unfounded’
supposes that an applicant has not established a prima facie case for refugee status; it is linked to the lack
of a legal foundation for the claim, which the applicant is pleading. The three situations described in
paragraph (a) to (c) are examples of this notion, but the cases in Article 32 are not.

Given the new approach of Articles 29 and 32, it is no longer necessary to retain the exception in former
Article 28(2)(a) (internal flight alternative). The change in approach towards the exception in former
Article 28(2)(b), referring to exclusion from refugee status,
flows from the Commission working
document on the relationship between safeguarding internal security and complying with international
protection obligations and instruments (COM(2001) 743 final).

Articles 30 and 31

Articles 30 and 31 (former Articles 30 and 31) jointly lay down the proposed common approach towards
safe countries of origin. The approach remains unchanged, though the text has been slightly reworded.

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Article 32

Article 32 makes clear that an application can only be rejected on the substance under the accelerated
procedure if it first has been established that the applicant has no well-founded fear for persecution in
terms of the Geneva Convention. This approach stems from the Council Conclusions. Certain behaviour of
the applicant may justify a rejection under the accelerated procedure, if the case is unfounded. However,
this behaviour in itself cannot result in a rejection, for notwithstanding his behaviour the applicant might
still be a refugee.

At the same time, discussions in the Council on the nature of the accelerated procedure have been such
that all guarantees laid down in Chapter II of the proposal now also apply in the accelerated procedure.
Given the different approach to the notion of a manifestly unfounded application and this major change in
the provisions of Chapter II, it is considered justified to increase the list with five new grounds.

Articles 33 and 34

The Council Conclusions provide for ‘the possibility whereby applications for asylum submitted after an
earlier application has been rejected by a member State are processed in a special context, in order to
ensure that such applications are processed swiftly’ (II.1.10). The proposed Articles 33 and 34 leave it to
the Member States to decide whether or not to have a special procedure in case of subsequent applications,
(an examination
consisting of a preliminary examination on whether certain conditions are met
comparable to admissibility).
If the conditions are fulfilled, Member States must proceed to further
examine the application in conformity with the standards of this Directive as set out in Chapter II (in
some Member States also referred as ‘to open a new procedure’). Where Member States do provide for this
procedure, the standards laid down in these Articles must be met. The basic idea is that Members States
can derogate from requirements for the examination of a first application (see Chapter II) during the
preliminary examination, allowing a more expeditious decision making process, including removal (see
Article 40(3)), provided certain conditions are met. Inspiration for this procedure is drawn from German
practice. It is underlined that Member States are not obliged to adopt these rules and may continue to
examine subsequent applications from former applicants like any other application. Some Member States
may perhaps prefer to do so and reject subsequent applications from former applicants as unfounded
under the accelerated procedure, where the necessary conditions of Article 30(2)(d) are met.

Article 35

The Council Conclusions indicated that ‘the question whether the Directive should apply to applications
for asylum made at the border of a Member State remains open’ (II.1.6). On the basis of subsequent
consultations with Member States, a special approach to applications made at border post is proposed. The
starting point for this approach is the primacy of national law and the possibility to preserve national
specific features of such procedures and administrative arrangements.

it is
However, as this approach allows Member States to ‘fall below’ common procedural standards,
necessary to introduce a so-called standstill clause. Thus, Member States who at
the moment of
adoption already have in place legislation relating to border procedures can derogate from the
minimum standards of Chapter II, except from the standards explicitly referred to in this Article, but
others cannot. This exceptional regime strikes a (delicate) balance between the needs of those Member
States for maintaining a special procedure at border posts and the protection of the basic guarantees that
all applicants for asylum should be offered throughout the EU, regardless of the nature of the applicable
practical arrangements in Member States.

Articles 36 and 37

Former Article 26, which deals with the issue of withdrawal or annulment of refugee status within the
meaning of point (1)(d) of the first paragraph of Article 63 of the EC Treaty, is only changed to cover the
situation where a court or another body and not the determining authority decides on withdrawal or
annulment.

The terminology of ‘withdrawal or annulment’ is meant to cover ‘cessation’ of refugee status as well.

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Chapter IV

Appeals procedures

Article 38

The Council Conclusions have been the main orientation for a complete restructuring of the appeals
chapter. Member States did not accept the starting point of the original proposal that Community law
on asylum procedures should provide for a three-tiers system, meaning an appeal to a reviewing body of a
nature to be defined by the Member States and, for all applicants in Member States, access to further
appeal before a court of law. Thus, former Articles 38 to 40 have become redundant. Moreover, the
appeals chapter is streamlined and stripped to its bare essentials. Thus, provisions on time limits for
decision making by the reviewing bodies and the consequences of non-compliance in former Article
35, the optional procedure of automatic review in former Article 36, the references to expeditious
procedures for cases at border posts in former Articles 34(5) and 39(4) are deleted.

The modified proposal restricts itself to developing the principle of a right to an effective remedy before a
court of law instead of the original ‘institutional’ approach. It defines the principle in Article 34(1) and
further elaborates it in the remaining paragraphs of Article 34 and the other Articles of this chapter. The
notion of an effective remedy before a court of law is inspired by Article 47 of the Charter of Fundamental
Rights of the European Union, which in turn is based on Article 13 of the ECHR. Article 13 refers to ‘an
effective remedy before a national authority’. Article 47 of the Charter refers to an independent and
impartial tribunal. This should be understood as a reference to a court of law. In Community law the
protection is more extensive than under the ECHR since it guarantees the right to an effective remedy
before a court of law. The Court of Justice enshrined this principle in its caselaw (Case 222/84, Johnston v
Chief Constable of the RUC and Case 222/86, Unectef/v Heylens). According to the Court, the principle
also applies to the Member States when they are implementing Community law. The elements ‘inde-
pendent and impartial’ are formal requirements for an effective remedy and can be considered to be
included in the notion of ‘court’. The caselaw of the Court of Justice distinguishes other requirements
for a remedy to be effective, such as the power to confirm or nullify a decision.

Given the choice made by the Council not to oblige Member States to have a two level appeal system in
asylum cases and the above mentioned caselaw, it appears that where there is only one appeal, e.g. in
some countries in manifestly unfounded or inadmissible applications, it must be before a court. In this
sense, the Council Conclusions, which included the possibility of an appeal before ‘a quasi-judicial body’,
can not be followed by the Commission.

The principle of an effective remedy before a court does not preclude Member States from having an
administrative body responsible for review preceding an appeal to a court. This means that an effective
remedy might entail either an appeal before a court or a review by an administrative body followed by an
appeal before a court. However, there is no need to express this in the text itself.

Paragraph 2 provides that regardless of whether the decision is taken under the regular or the accelerated
procedure, the effective remedy should always include the possibility of an examination by the court on
both facts and points of law.

Paragraph 3 assures that where authorities in Member States refuse to re-open the case after its discon-
tinuation appeal is possible. Likewise, appeal to a court should be possible against decisions regarding time
limits and their extension pursuant to Article 24. The first paragraph entails a right to an appeal against a
refusal to further examine a subsequent application in conformity with Chapter II as referred to in the
Articles 33 and 34.

Articles 39 and 40

Following the invitation in the Council Conclusions to develop sufficient differentiation between the
regular and the accelerated procedure,
it is proposed to have separate Articles on review and appeal
against decisions taken under these procedures.

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The major distinction between the accelerated and the regular appeals procedure is on the right to remain
at the territory, at port or airport transit zones or at the border of the Member State concerned to await
the outcome of review or appeal (afterwards referred to as: suspensive effect). If a decision is taken under
the regular procedure it is presumed that a review or appeal against the decision will have automatic
suspensive effect (Article 39(1) but Member States may derogate from it only by virtue of laws or
regulations in force on the date of adoption of this Directive). While the same presumption applies for
accelerated procedures, no standstill clause is proposed and the provisions merely require Member States to
lay down in national law in which cases there is no suspensive effect (Article 40(1)).

The other distinction relates to the cases in which an exception can be made to the rule that, where there
is no (automatic) suspensive effect, a ruling of a court on a request to nevertheless give suspensive effect in
a particular individual case, must be awaited before expulsion can take place. This follows from the fact
that different decisions are taken in the procedure. The decisions relating to the exceptions in Article 40(3)
are always taken under accelerated procedures.

Article 41

This Article regroups and amends former Article 34(1) to 4 requiring Member States to lay down in
advance, for reasons of legal certainty, rules on time limits and the competencies of the national courts or
administrative bodies responsible for respectively appeal and review in accordance with new Article 38. A
second paragraph has been added following discussions on the issue of withdrawal or abandonment during
appeal proceedings.

Chapter V

General and final provisions

Article 42

Former Article 41 on implementing the Directive without discrimination is amended to take into account
the wording of Article 21 of the Charter of Fundamental Rights of the European Union, solemnly
proclaimed after the adoption of the original proposal.

Article 43

Former Article 42 on penalties remains unchanged.

Article 44

the Commission on the application of

Former Article 43 on the report of
the Directive remains
unchanged, except for some minor editorial changes and the reporting interval. Following amendments
8 and 101 of the European Parliament it is proposed to regularly report every two years on the application
of the Directive. The Commission supports this amendment, provided it is not a precedent for all asylum
Community legislation. It is believed that this Directive is of a particular importance to the common
European asylum system since the rules on procedures precede and condition the exercise of rights under
other asylum Community legislation, such as the proposal for a Council Directive on minimum standards
for the qualification and status of third country nationals and stateless persons as refugees or as persons
who otherwise need international protection (COM(2001) 510 final).

Article 45

A rule is added on the communication to the Commission of the text of the provisions of national law
which Member States adopt in the field covered by this Directive and the deadline for transposal
is
modified.

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Articles 46 and 47

Former Articles 45 and 46 remain unchanged.

Annex I

Annex I is modified first of all as a result of amendments of the European Parliament (numbers 102, 108,
110). Secondly, the Council proposed some changes. The original Annex did not take into account the
situation in which a country has ratified the Geneva Convention but has not yet put appropriate rules in
place. If such a country nonetheless consistently 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 as evinced by the UNHCR, the country should be able to be qualified as a safe
third country.

As to part II of Annex I, a text has been added to lay down explicitly in the Directive that, for those
Member States which assess on a case by case basis the safety of a third country and not by designation on
a list, there is no need to motivate the individual decision in the general and public manner outlined this
part of the Annex. A similar provision is added to part II of Annex II.

Annex II

The changes (replacing ‘generally observes’ by ‘consistently observes’ and ‘institutions’ by ‘structures’) are
the result of amendment 111 of the European Parliament.

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular point
first
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 the Economic and Social
Committee,

Whereas:

including a Common
(1) A common policy on asylum,
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.

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

(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 European 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
the purpose of
other measures
implementing Article 63(1)(d) of
the
objective of a common asylum procedure agreed on in
the Tampere Conclusions.

the Treaty or

taken for

to be

(5) The main aim of this Directive is to introduce a minimum
framework in the European Community on procedures
for the determination of refugee status, ensuring that no
Member State expels or returns an applicant for asylum in
any manner whatsoever to the frontiers of
territories
where his
freedom would be threatened on
account of his race, religion, nationality, membership of
a particular social group or political opinion.

life or

(6) To secure

this

aim,

the Council Conclusions on
procedures in Member States for granting and with-
drawing refugee status of 7 December 2001 (as revised
18 December 2001) underline the need for provisions
ensuring that applicants for asylum receive substantial
guarantees with regard to the decision-making process
and that decisions are of optimum quality, without jeop-
ardising the objective of efficiency of procedures. Such
provisions should also define the minimum standards
for a regular procedure, make it possible to adopt or
retain accelerated procedures, and allow for sufficient
differentiation between these types of procedures.

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(7) This Directive

rights

respects

fundamental

and
the
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union
In particular
as general principles of Community law.
for human
this Directive seeks to ensure full respect
dignity,
to asylum of applicants for asylum
and their dependants, and the protection in the event of
removal,
the
promoting
application of Articles 1, 18 and 19 of the Charter.

extradition,

expulsion

the right

or

(8) This Directive should be implemented without prejudice
to Member States' existing international obligations under
human rights instruments.

(9) This Directive should be without prejudice to the Protocol
on asylum for nationals of Member States of the European
Union as annexed to the Treaty establishing the European
Community.

(10) Asylum procedures should not be so long and drawn out
that persons in need of international protection have to
go through a long period of uncertainty before their cases
are decided, whilst 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 the same
time, asylum procedures should contain the necessary
safeguards to ensure that
those in need of protection
are correctly identified.

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

whose right
States is subject to an examination.

to entry to the territory of

the Member

(15) It

is essential

that accelerated procedures contain the
necessary safeguards to ensure that earlier doubts on the
part of the status determining authority can be set aside
so that those who are in need of protection can still be
correctly identified. They should therefore contain,
in
principle, the same minimum procedural guarantees and
requirements regarding the decision making process as
this is necessary for
regular procedures, provided that
the purposes of
the
standards regarding procedures to consider subsequent
applications containing no fresh evidence or arguments,
and procedures through which a decision is taken on the
right of
asylum are
proportionate to the specific purpose of such procedures.

the particular procedure. Thus,

an applicant

entry of

for

(16) As minimum procedural guarantees for all applicants for
asylum in all procedures should be considered, inter alia,
access to the procedure, right to stay pending a decision
by the determining authority, access to the services of an
interpreter for submitting their case if interviewed by the
the opportunity to communicate with the
authorities,
United Nations High Commissioner
for Refugees
(UNHCR) or, with any organisation working on its
behalf,
a
decision, motivation of that decision in fact and in law,
the opportunity to consult a legal adviser or other coun-
sellor, and the right to be informed of their legal position
at decisive moments in the course of the procedure, in a
language they can reasonably be supposed to understand.

to appropriate notification of

right

the

(17) In addition, specific procedural guarantees for persons
such as unaccompanied minors,

with special needs,
should be laid down.

(12) A quick and simple system for procedures in Member
States could, provided that the necessary safeguards are
in place, consist of a single appeal against the decision to
a court.

(18) Minimum requirements

regarding the decision-making
process in all procedures should be that decisions are
taken on the basis of the facts by authorities competent
in the field of asylum and refugee matters.

(13) The necessary safeguards should require 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
is to have an effective access to procedures, the oppor-
tunity to co-operate and properly communicate with the
competent authorities so as to present the relevant facts of
his case and sufficient procedural guarantees to pursue his
case at and throughout all stages of the procedure.

(14) 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 accelerated procedures
for processing in
accordance with clear, pre-established criteria a number
of
of
including
categories
is not necessary to consider
applications for which it
the
to be manifestly
unfounded, subsequent applications containing no fresh
evidence or arguments, and applications of persons

applications,

substance,

different

appear

those

that

(19) Decisions taken on an application for asylum should be
subject to an appeal consisting of an examination on both
facts and points of law by a court of law. The applicant
should be entitled not to be expelled until a court has
ruled on the right to remain pending the outcome of this
appeal, except in a limited number of cases laid down in
this Directive, including for reasons of national security or
public order.

(20) Directive 95/46/EC of the European Parliament and the
Council of 24 October 1995 on the protection of indi-
viduals with regard to the processing of personal data and
on the free movement of such data (1) shall apply to
personal data treated in application of
this directive.
Directive 95/46/EC shall also apply to the transmission
of data from Member States to the UNHCR in the exercise
of its mandate under the Geneva Convention. This trans-
mission is subject to the level of personal data protection
in the UNHCR being considered as adequate.

(1) OJ L 281, 23.11.1995, p. 31.

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(21) 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

(22) In this spirit, Member States should be encouraged 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, taking into
account in particular Council Directive . . . [Proposal for
a Council Directive on minimum standards for the qualifi-
cation and status of third country nationals and stateless
persons as refugees or as persons who otherwise need
international protection].

(23) Member States should provide for penalties in the event
the national provisions adopted

of
infringement of
pursuant to this Directive.

(24) The implementation of this Directive should be evaluated

at regular intervals not exceeding two years.

(25) 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 and withdrawing refugee
status cannot be
sufficiently attained by the Member States. They can
the
therefore, by reason of
action, be better achieved by the Community. This
Directive confines itself
to the minimum required in
order
to achieve those objectives and does not go
beyond what is necessary for that purpose,

the scale and effects of

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

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

this Directive is

Article 2

Definitions

For the purposes of this Directive:

(a)

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

(b)

‘Application for asylum’ means an application made by a
person which can be understood as a request for inter-

the
national protection from a Member State under
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;

(c)

‘Applicant’ or ‘applicant for asylum’ means a person who
has made an application for asylum in respect of which a
final decision has not yet been taken.

(d) A final decision is a decision in respect of which all
been

this Directive have

remedies under

possible
exhausted;

(e)

(f)

(g)

(h)

(i)

(j)

(k)

(l)

‘Determining authority’ means any quasi-judicial or admin-
istrative body in a Member State responsible for examining
applications for asylum and competent to take decisions at
first instance in such cases

the Geneva Convention as set out

‘Refugee’ means a person who fulfils the requirements of
Article 1(A) of
in
Council Directive . . . [Proposal for a Council Directive
on minimum standards for the qualification and status
third country nationals and stateless persons as
of
refugees or as persons who otherwise need international
protection];

‘Refugee Status’ 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;

‘Unaccompanied minor’ 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 a person, or a
minor who is left unaccompanied after he has entered
the territory of the Member States;

‘Representative’ means a person or organisation repre-
senting an unaccompanied minor as legal guardian, a
national organisation which is responsible for his/her
care and well-being, or any other appropriate represen-
tation appointed to ensure his/her best interests;

‘Detention’ means the confinement of an applicant
for
asylum by a Member State within a restricted area,
where his freedom of movement is substantially curtailed;

‘Withdrawal of refugee status’ means the decision by a
competent authority to withdraw the refugee status of a
person on the basis of Article 1(C) of
the Geneva
Convention or Article 33(2) of the Geneva Convention;

‘Annulment of refugee status’ means the decision by a
the refugee status of a
competent authority to cancel
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.

(m) ‘Remain on the territory of the Member State’ means to
remain at the border, the airport or port transit zones or
the Member State in which the
on the territory of
application for asylum has been made or
is being
examined.

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Article 3

Scope

1.
This Directive shall apply to all applications for asylum
made at the border, at port and airport transit zones or on the
territory of Member States.

2.
This Directive shall not apply to requests for diplomatic
or territorial asylum submitted to diplomatic or consular repre-
sentations 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.

Article 4

More favourable provisions

Member States may introduce or maintain more favourable
standards on procedures
for granting and withdrawing
in so far as those standards are compatible
refugee status,
with this Directive.

CHAPTER II

BASIC PRINCIPLES AND GUARANTEES

Article 5

Access to the procedure

1. Member States shall ensure that applications for asylum
are neither rejected nor excluded from examination on the sole
ground that they have not been made as soon as possible.

2. Member States may require that applications for asylum
be made in person.

3. Member States shall ensure that each adult person has the
right to make a separate application for asylum on his own
behalf.

However, Member States may determine, by law

(a) the cases in which a minor cannot make an application on
his own behalf and in which his application is to be made
by another person on his behalf;

(b) the cases in which the application of an unaccompanied
minor has to be lodged by a representative as provided for
in Article 15(1).

4. Member States may provide by law that an application
may be made by an applicant on behalf of his dependants,
including minors. In these cases Member States shall ensure
that dependant adults and dependant minors not covered by
to the making of
point
the
application on their behalf,
failing which the dependants
shall have an opportunity to make an application on their
own behalf.

(a) of paragraph 3 consent

Where a dependant files an application on his own behalf after
he/she has consented to the making of an application on
his/her behalf, the subsequent application may be rejected on
the basis the application made on his/her behalf.

5. Member States
the procedures as
shall ensure that
provided for in this Directive shall start as soon as possible.

6. Member States shall ensure that:

(a) all

relevant authorities

likely to be addressed by the
applicant at the border or on the territory of the Member
State have instructions for dealing with applications for
the
asylum,
applications
the
competent authority for examination;

to
information

including
and

forward
to

instruction

the
all

relevant

(b) the personnel of

those authorities have received the
necessary training to recognise an application for asylum
and to proceed further
in accordance with those
instructions.

Article 6

Right to stay pending the examination of the application

Applicants for asylum shall be allowed to remain on the
1.
territory of the Member State until such time as the deter-
mining authority has made a decision.

2. Member States can only make an exception where,
in
accordance with Articles 33 and 34, a subsequent application
will not be further examined.

Article 7

Requirements for the examination of applications

1. Member States shall ensure that decisions by the deter-
mining authority on applications for asylum are taken after an
appropriate examination. To that end, Member States shall
ensure that

(a) applications are examined and decisions are taken indi-

vidually, objectively and impartially;

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

and that

transited,

(c)

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

2. Members States shall ensure that the authorities referred
to in Chapter IV are given access to the general information
referred to in § 1(b), necessary for the fulfilment of their task.

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Article 8

Requirements for a decision by the determining authority

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

2.
They shall also ensure that if an application is rejected,
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.

Article 9

Guarantees for applicants for asylum

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

(a) They must be informed of the procedure to be followed
and of their rights and obligations during the procedure, in
a language which they may reasonably be supposed to
understand. The information must be given in time to
enable them to exercise the rights guaranteed in this
Directive and to comply with the obligations described in
Articles 16 and 20(1);

case

to the

competent

receive the services of an interpreter
their

(b) They must
for
submitting
authorities
whenever
shall consider
it
reasonable. Member States
reasonable to give
these services
if
the determining
to be interviewed
authority calls upon the applicant
before a decision is taken on the application. In this case
and in other cases where the competent authorities call
upon the interpreter, the services shall be paid for out of
public funds;

shall also enjoy the guarantees listed in paragraph 1(b),
and (d).

(c)

Article 10

Persons invited to a personal interview

1.
Before a decision is taken by the determining authority,
the applicant for asylum shall be given the opportunity of a
interview on his/her application for asylum with a
personal
person competent
such an interview under
national law.

to conduct

Member States may, however, provide that minors below a
certain age need not be interviewed.

The personal

2.
basis of an individual assessment:

interview may be omitted where, on the

(a) the determining authority is able to take a positive decision

on the basis of evidence available;

(b) the competent authority is of the opinion that the applicant
is unfit or unable to be interviewed due to lasting circum-
stances beyond his control. When in doubt, Member States
may require a medical or psychological certificate;

(c)

the competent authority cannot provide an interpreter in
accordance with point
(b) of Article 11(2) within a
reasonable time;

(d) the competent authority is not able to conduct

the
applicant has, without good

interview, because
reasons, not complied with invitations to appear.

the

(c) They must not be denied the opportunity to communicate
with the UNHCR or with any other organisation working
on behalf of the UNHCR on the territory of the Member
State pursuant to an agreement with such Member State;

(d) They must be notified in reasonable time and in an appro-
priate manner of the decision by the determining authority
on their application for asylum. If a legal adviser or other
counsellor is legally representing the applicant, Member
States may choose to notify the decision to him instead
of to the applicant for asylum;

(e) They must be informed 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. The
include information on how
information provided shall
to challenge a negative decision.

2.
Each adult among the dependants referred to in Article
5(4) shall be informed in private of the possibility to provide
information to the competent authorities on the application for
asylum before a decision is taken by the determining authority.

In the cases referred to in second subparagraph of
3.
paragraph 1 and in points (b),
(c) and (d), of paragraph 2,
the applicant must be offered the opportunity, before a
decision is taken by the determining authority,
to make
comments in lieu of a personal interview, where appropriate
with the assistance of a legal adviser or other counsellor
and/or, in the case of a minor, a representative.

the applicant can not have an interview because the
If
competent authority is not able to provide an interpreter in
accordance with point (b) of Article 11(2) within a reasonable
time, Member States shall provide, free of charge, assistance by
a legal adviser or other counsellor and/or, in the case of an
unaccompanied minor, a representative, and shall provide them
with an opportunity, before a decision is taken by the deter-
mining authority,
the
applicant in lieu of a personal interview.

to make comments on behalf of

4.
The fact that no personal interview has taken place on a
ground referred to in paragraph 2 and that no comments were
received pursuant to paragraph 3, shall not prevent the deter-
mining authority from taking a decision on an application for
asylum.

With respect to the procedures provided for in Chapter IV,
Member States shall ensure that all applicants for asylum

The absence of a personal interview on the grounds referred to
in paragraph 2 or 3 shall not in itself adversely affect the
decision of the determining authority.

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Article 11

Requirements for a personal interview

request, be granted free of charge, subject to the provisions of
this paragraph.

A personal interview shall normally take place without

1.
the presence of family members.

Member States may

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

of

(a) when appointing the person who conducts the interview
and the interpreter, use their best endeavours to take
circumstances
account
surrounding the application,
including the applicant's
cultural origin or vulnerability, insofar as it is possible to
do so in advance and the competent authority is aware of
such circumstances;

the personal or

general

(b) select an 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
language
which he may reasonably be supposed to understand.

there is another

for asylum if

Article 12

Status of the transcript of a personal

interview in the

procedure

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

2. Member States shall ensure that applicants have timely
access to the transcript of the personal interview on which the
decision is or will be based.

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

In such cases, Member States shall ensure that the applicant has
the opportunity to request or propose corrections of mistrans-
lations or misconceptions appearing in the transcript.

(a) choose to only make available legal assistance free of
charge to those who lack sufficient resources and insofar
as such assistance is necessary to ensure their effective
access to justice.

(b) restrict legal assistance given free of charge to legal advisers
or other counsellors specifically designated by national law
to assist and/or represent applicants for asylum.

Article 14

Rights of legal adviser or counsellor

1. Member States shall ensure that a legal adviser or other
counsellor who assists or represents an applicant for asylum
under the terms of national
law shall enjoy access to such
information in the applicant's file as is liable to be examined
by the authorities referred to in Chapter IV.

Member States shall ensure that the legal adviser or other
counsellor who assists or represents an applicant for asylum
has access to closed areas for the purpose of visiting that
applicant. Member States may only limit
the possibility to
visit applicants in closed areas where such limitation is, by
virtue of national law or regulation, objectively necessary for
the security of the area or 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.

2. Member States shall ensure that the legal adviser or other
counsellor who assists or represents an applicant for asylum is
informed in due time of the time and place of the applicant's
personal interview as provided for in Articles 10, 11 and 12
and is allowed to attend it.

Member States shall provide rules on the presence of legal
advisers or other counsellors at all other interviews in the
procedure, without prejudice to this Article or to Article
15(1)(b).

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

Article 15

Guarantees for unaccompanied minors

Article 13

Right to legal assistance and representation

1. Member States shall allow applicants for asylum the
opportunity to consult in an effective manner a legal adviser
relating to their asylum
or other counsellor on matters
including
the procedure,
at
applications
following a negative decision.

stages of

all

2.
In the event of a negative decision by a determining
authority, Member States shall ensure that legal assistance, on

to all procedures provided for

1. With respect
in this
Directive and without prejudice to the provisions of Articles
10 and 12, Member States shall ensure that all unaccompanied
minors enjoy the following guarantees:

(a) To be granted, as soon as possible, a representative who
shall represent and/or assist them with respect to the exam-
ination of the application;

(b) The representative must be given the opportunity to help
interview. Member States
this
to be present at

prepare them for the personal
shall allow the representative
interview and to ask questions or make comments.

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2. Member States shall ensure that:

Article 17

(a)

If an unaccompanied minor has a personal interview on his
application for asylum as referred to in Articles 10, 11 and
12, this interview is conducted by a person who has the
necessary knowledge of the special needs of minors;

(b) An official
minors
takes
unaccompanied minor.

trained with regard to the special needs of
the decision on the application of an

3. Member
to
determine the age of unaccompanied minors shall ensure that:

that use medical

examinations

States

(a) Unaccompanied minors are informed prior to the exam-
ination of their application for asylum, and in a language
which they may reasonably be supposed to understand,
about the possibility of age determination by a medical
examination.

(b) The decision to reject an application for asylum from an
unaccompanied minor who refused to undergo this medical
examination shall not be based solely on this refusal.

Article 16

Establishing the facts in the procedure

1. Member States shall take appropriate measures to enable
the applicant
for asylum to fulfil his/her obligation of
co-operation to assist the competent authorities in establishing
the facts of his case.

An applicant shall be considered to have fulfilled this obli-
gation if he/she has presented all the facts of his/her case
relevant for the examination as completely as possible and
supported these with all available evidence in time for the
determining authority to take a decision.

An applicant

2.
for asylum shall be considered to have
presented all the relevant facts of his/her case if he/she has
identity,
provided
nationality, travel routes,
identity and travel documents and
the reasons for his fear for persecution.

statements on his

background,

age,

to support his/her
After the applicant has made an effort
facts by any available
statements concerning the relevant
evidence and has given a satisfactory explanation for any
lack of evidence, the determining authority must, evaluating
the evidence, assess the well-foundedness of the fear for perse-
cution.

shall

States

3. Member
the determining
authority, despite a possible lack of evidence for some of the
applicant's statements, gives the applicant the benefit of the
doubt if the following conditions are met:

ensure

that

Detention pending a decision by the determining
authority

1. Without prejudice to Article 18, Member States shall not
hold an applicant for asylum in detention for the sole reason
that his application for asylum needs to be examined before a
decision is taken by the determining authority.

However, Member States may only hold an applicant
for
asylum in detention during the examination of the application
where such detention is, in accordance with a procedure laid
down by national law or regulation, objectively necessary for
an efficient examination of the application or where, on the
basis of the personal conduct of the applicant, there is a strong
likelihood of his absconding.

2. Member States may also hold an applicant for asylum in
detention during the examination of his application if there are
grounds for believing that the restriction on his freedom of
movement
is necessary for a quick decision to be made.
Detention for this reason shall not exceed two weeks.

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

the court called upon to
Member States shall ensure that
review the order of detention is
to review
whether detention is in accordance with the provisions of
this Article.

competent

Article 18

Detention after agreement to take charge under Council
Regulation . . .

1. Member States may hold the applicant in detention to
prevent him from absconding or effecting an unauthorised
stay, from the moment at which another Member State has
to take him back in
agreed to take charge of him or
accordance with Council Regulation . . .
[establishing the
criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged in
one of the Member States by a third country national] until
the moment the applicant is transferred to the other Member
State. Detention for this reason shall not exceed one month.

2. Member States shall ensure that the authority called upon
to review the order is competent to examine the legality of the
detention in accordance with the provisions of this Article.

(a) the applicant has made a genuine effort to substantiate his

claim;

(b) all available evidence has been obtained and, where

possible, checked;

(c) the examiner is satisfied that the applicant's statements are
coherent and plausible and do not run counter to generally
known facts relevant to his/her case.

Article 19

Procedure in case of withdrawal of the application

1. When an applicant for asylum explicitly withdraws his
application for asylum, Member States shall ensure that the
determining authority takes a decision either to discontinue
the examination or, provided the information to do so is
available, to reject the application on some other ground in
accordance with this Directive.

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the determining
2. Member States may also decide that
authority can decide to discontinue the examination without
taking a decision. In this case, Member States shall ensure that
the determining authority shall enter a notice in the file.

Paragraph 1 shall also apply to an organisation, which is
2.
working on the territory of the Member State on behalf of the
UNHCR pursuant to an agreement with that Member State.

Article 20

Procedure in case of implicit withdrawal or abandonment
of the application

1. When there is reasonable cause to consider that an
applicant for asylum has implicitly withdrawn or abandoned
his application for asylum, Member States shall ensure that the
determining authority takes a decision either to discontinue the
examination or, provided the information to do so is available,
to reject the application on some other ground in accordance
with this Directive.

Member States may assume that the applicant has implicitly
withdrawn or abandoned his application for asylum when it is
ascertained that:

(a) He/she has not within a reasonable time complied with
reporting duties or other obligations to communicate, has
failed to respond to requests for information essential to
his/her application under the terms of Article 16 or has not
appeared for a personal
in
Articles 10, 11 and 12;

interview as provided for

Article 22

Data protection

1. Member States
information
regarding individual applications for asylum to the authorities
of the country of origin of the applicant for asylum.

shall not disclose

the

2. Member States shall take appropriate measures to ensure
that no information required 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 disclosure to those authorities of the fact of his
having applied for asylum.

CHAPTER III

PROCEDURES AT FIRST INSTANCE

S e c t i o n I

Article 23

(b) He/she has absconded or left without authorisation the
place where he/she lived or was held, without contacting
the competent authority within a reasonable time.

Purpose of accelerated procedures

1. Member States may adopt or
procedure for the purpose of

retain an accelerated

shall ensure that

the applicant who
2. Member States
reports once again to the
competent authority after a
decision to discontinue as referred to in paragraph 1 is
taken, is entitled to request that his/her case be re-opened.

Member States shall ensure that
removed contrary to the principle of non-refoulement.

this person will not be

Member States may allow the determining authority to take up
the examination at the stage in which the application was
discontinued.

Article 21

The role of UNHCR

1. Member States shall allow the UNHCR:

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

detention and in airport or port 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 thereto;

the applicant

(c) to present

its views,

in the exercise of

its supervisory
responsibilities under Article 35 of the Geneva Convention,
to
individual
authorities
applications for asylum at any stage of the procedure.

competent

regarding

any

(a) processing applications for asylum considered to be inad-

missible under Section II;

(b) processing applications

for asylum considered to be

manifestly unfounded under Section III;

(c) processing unfounded applications under Section IV;

(d) processing subsequent applications for asylum within the

framework of the provisions set out in Section V;

(e)

taking a decision on the entry of applicants for asylum into
the territory of a Member State in accordance with Section
VI.

2. Member States shall consider as regular procedures all
other procedures under which applications for asylum are
processed.

Article 24

Time limits for an accelerated procedure

1. Member States shall ensure that the determining authority
takes a decision in the accelerated procedure within three
months after the application of
the person concerned has
been made.

The time limit

2.
extended for three months for legitimate reasons.

referred to in paragraph 1 may be

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An extension of the time limit in a particular case shall not be
valid unless notice is served on the applicant or on the legal
adviser or other counsellor who assists or represents him.

Non-compliance with the time limits in paragraphs 1 and
3.
2- shall result in the application for asylum being processed
under the regular procedure, unless Member States determine
that an applicant who is at
the origin of non-compliance
referred to in paragraphs 1 and 2, cannot invoke this conse-
quence of non-compliance, in particular in case of a failure on
his part to submit the information he is reasonably expected to
provide under the terms of Article 16 or to appear for a
personal interview as provided for in Articles 10, 11 and 12.

4. Member States may determine that a decision is deemed
to have been taken under the accelerated procedure in cases
where it can be established after the expiry of the time limits
referred to in paragraphs 1 and 2 that
the applicant has,
and in bad faith, withheld
without
information which, had it been known at that stage of the
procedure, would have resulted in a decision in the accelerated
procedure.

reasonable

cause

5.
This Article shall not apply once one Member State calls
upon another Member State to take charge of an applicant in
accordance with Council Regulation . . .
[establishing the
criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged in
one of the Member States by a third country national].

S e c t i o n I I

Article 25

Cases of inadmissible applications

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

(a) another Member State, or Norway or

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

(b) a country which is not a Member State is considered as a
first country of asylum for the applicant, pursuant
to
Article 26;

(c) a country which is not a Member State is considered as a
safe third country for the applicant, pursuant to Articles 27
and 28;

(d) a country other than the country of origin of the applicant
has made an extradition request and that country is either
another Member State or a third country which can be
considered a safe third country in accordance with the
principles set out in Annex I, provided that extradition to
this country is legal;

(e) an indictment by an International Criminal Court has been

made.

Article 26

Application of the concept of first country of asylum

A country can be considered to be a first country of asylum for
an applicant for asylum if he/she has been admitted to that
country as a refugee or for other reasons justifying the granting
of protection, and can still avail himself of protection in that
country that is in accordance with the relevant standards laid
down in international law.

Article 27

Designation of countries as safe third countries

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

2. Member States may retain or introduce legislation that
allows for the designation by law or regulation of safe third
countries. Such laws or regulations shall be compatible with
Article 28.

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 which wish to retain
these laws or regulations, shall notify them to the Commission
within six months of the adoption of this Directive and shall
notify
relevant
amendments.

subsequent

possible

soon

any

as

as

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

Member States shall give specific grounds for the designation
of countries as safe third countries and for any subsequent
exclusion or addition of such a country.

Article 28

Application of the safe third country concept

A country that is a safe third country in accordance with
1.
the principles set out in Annex I can only be considered as a
safe third country for a particular applicant
for asylum if,
notwithstanding any list:

(a) the applicant has either a connection or close links with
the country or has had an opportunity to avail himself/
herself of the protection of the authorities of that country;

(b) there are grounds for considering that

this particular
applicant will be admitted or re-admitted to this country
and

(c)

there are no grounds for considering that the country is
not a safe third country in his/her particular circumstances.

2. When implementing a decision based on this Article,
Member States shall 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.

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S e c t i o n I I I

Article 29

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.

Cases of manifestly unfounded applications

Member States may reject an application for asylum as
manifestly unfounded if the determining authority has estab-
lished that:

(a) the applicant in submitting his application and presenting
the facts, has only raised issues that are obviously not
relevant to the Geneva Convention;

S e c t i o n I V

Article 32

Other cases under the accelerated procedure

Member States may process an application for asylum under
the accelerated procedure where:

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

(a)

meaning of Articles 30 and 31 of this Directive;

(c) the applicant is prima facie excluded from refugee status by
for a Council
virtue of Council Directive . . . [Proposal
Directive on minimum standards for the qualification and
status of third country nationals and stateless persons as
refugees or as persons who otherwise need international
protection].

Article 30

Designation of countries as safe countries of origin

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

2. Member States may retain or introduce legislation that
regulations of safe
allows for
countries of origin. Such laws or
shall be
compatible with Article 31.

the designation by law or

regulations

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 which wish to
retain these laws or regulations, shall notify them to the
Commission within six months of
this
Directive and shall notify as soon as possible any subsequent
relevant amendments.

the adoption of

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

Member States shall give specific grounds for the designation
of countries as safe countries of origin and for any subsequent
exclusion or addition of a country as a safe country of origin.

the applicant has without good reason, misled the auth-
orities with respect to his identity and/or nationality, by
presenting false information or by withholding relevant
information that could have had a negative impact on
the decision;

(b) the applicant has not produced information to establish
with a reasonable degree of certainty his/her identity or
nationality, and there are serious reasons for considering
that he/she has, in bad faith, destroyed or disposed of an
identity or
that would have helped
establish his/her identity or nationality;

travel document

(c)

the applicant has made deliberately false or misleading
representations of a substantial nature in relation to the
evidence produced in support of his/her application for
asylum;

(d) the applicant has

submitted a subsequent application
raising no relevant new facts with respect
to his/her
particular circumstances or to the situation in his country
of origin;

(e)

the applicant has failed without reasonable cause to make
his application earlier, having had ample opportunity to do
so, and is making an application merely in order to delay
or frustrate the enforcement of an earlier or imminent
decision which would result in his/her removal;

(f)

the applicant failed to comply with obligations referred to
in Articles 16 and 20(1) of this Directive;

(g) the applicant entered the territory of the Member State
unlawfully or prolonged his/her
stay unlawfully and,
without good reason, has not presented himself/herself to
the authorities as soon as possible given the circumstances
of his/her entry;

(h) the applicant is a danger to the security of the Member
State or constitutes a danger to the community of that
final
Member
judgement of a particularly serious crime.

been convicted

State, having

by

a

Article 31

Application of the safe country of origin concept

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,

the determining
The application can only be rejected if
the applicant has no well-
authority has established that
founded fear of being persecuted by virtue of Council
Directive . . . [Proposal for a Council Directive on minimum
standards for the qualification and status of
third country
nationals and stateless persons as refugees or as persons who
otherwise need international protection].

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S e c t i o n V

Article 33

Cases of subsequent applications

1. Member States may adopt or retain a specific procedure
entailing a preliminary examination as referred to in paragraph
2, where a person makes a subsequent application for asylum:

(a) after his/her previous application has been withdrawn by

virtue of Articles19 or 20;

(b) after a final decision has been reached on his/her previous

application.

2.
A subsequent application for asylum shall first be subject
to a preliminary examination as to whether, after the with-
drawal of the previous application or after the final decision
on this application has been reached,

(a) the personal circumstances of the applicant or his/her legal

situation has changed or

(b) there is new information indicating that a decision more
favourable to the applicant could be taken or could have
been taken or

(c) the decision on a former application for asylum was taken

on an incorrect or false basis or

(d) there are other reasons under national
examine that subsequent application.

law to further

If one of the reasons described under subparagraphs (a), (b), (c)
and (d) applies and the applicant concerned was, through no
fault of his/her own, incapable of asserting those reasons set
forth in this paragraph in the previous procedure, in particular
by filing an appeal before a court, the application will be
further examined in conformity with Chapter II.

Article 34

Procedural rules

1. Member States shall ensure that applicants for asylum
whose application is subject
to a preliminary examination
pursuant to Article 33 enjoy the guarantees listed in Article 9.

2. Member States may lay down in national law rules on the
preliminary examination pursuant to Article 33. Those rules
may inter alia:

(a) oblige the applicant concerned to indicate facts and
substantiate evidence which justify a new procedure;

(b) require submission of the new information by the applicant
concerned within a time limit after which it has been
obtained by him or her;

(c) permit the preliminary examination to be conducted on the
sole basis of written submissions without a personal
interview.

The conditions shall not render
asylum to a new procedure impossible nor result
effective annulment or severe curtailment of such access.

the access applicants for
in the

3. Member States shall ensure that

(a) the determining authority which has taken the decision on
the previous application is responsible for the preliminary
examination;

(b) the applicant is informed in an appropriate manner of the
outcome of the preliminary examination and, in case the
application will not be further examined, of the reasons
and of the possibilities of challenging it;

(c)

if one of the the situations referred to in Article 33(2)
applies, the determining authority shall
further examine
application in conformity with the
the
provisions of Chapter II as soon as possible.

subsequent

S e c t i o n V I

Article 35

Cases of border procedures

1.
Subject to the provisions of this Article, Member States
may maintain, in accordance with laws or regulations in force
at the time of adoption of this Directive, specific procedures in
order to decide at the border on the entry to their territory of
applicants
for asylum who have arrived and made an
application for asylum, in so far as those laws or regulations
are compatible with Articles 5, 6, 8(2), 13(1), 14(1), 14(2), 15,
17, 21 and 22.

This procedure may also be applicable to applicants for

2.
asylum arriving in airport and port transit zones.

3. Member States shall ensure that the laws or regulations
lay down rules for those specific procedures as regards the
examination of
and the decision on the
application, the access to legal assistance and representation,
the procedure, duration and conditions of detention as well as
any time limits that apply.

applications

4. Member States shall ensure that a decision to refuse entry
to the territory of a Member State for a reason arising from the
application for asylum is taken within two weeks, subject to an
extension of the time limit for no more than two weeks agreed
upon by a competent judicial body in a procedure prescribed
by law.

5.
Non-compliance with the time limits provided for in this
paragraph shall result in the applicant for asylum being granted
entry to the territory of the Member State in order for his
application to be processed in accordance with the other
provisions of this Directive. Member States shall ensure that
applicants for asylum, who are refused entry in accordance
with this procedure, enjoy the guarantees
referred to in
Chapter IV.

6.
The refusal of entry into the territory can not override the
decision on the application for asylum, unless it is based upon
a rejection of the application for asylum after an examination
on the basis of the facts of the case by authorities competent in
the field of asylum and refugee law.

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S e c t i o n V I I

Article 36

Withdrawal or annulment of refugee status

Member States shall ensure that an examination may be started
to withdraw or annul the refugee status of a particular person
when information comes to light
there are
reasons to reconsider the validity of his refugee status.

indicating that

Article 37

Procedural rules

1. Where in a Member State a determining authority
reconsiders a refugee's qualification, the annulment or with-
drawal of a refugee status shall be examined under
the
regular procedure in accordance with the provisions of this
Directive.

Where in a Member State a court or another body reconsiders
a refugee's qualification, the annulment or withdrawal of a
refugee status shall be examined under the same conditions
as the review of decisions taken under the regular procedure.

2. Member States may derogate from Articles 9 to 12 when
is technically impossible for the competent authority to
it
comply with the provisions of those Articles.

CHAPTER IV

APPEALS PROCEDURES

Article 38

The right to an effective remedy before a court of law

1. Member States shall ensure that applicants for asylum
have the right to an effective remedy of a decision taken on
their application for asylum before a court of law.

2. Member States shall ensure that
the effective remedy
referred to in paragraph 1 includes the possibility of an exam-
ination on both facts and points of law.

3. Member States shall ensure that:

regular procedure to remain on the territory of the Member
State concerned pending its outcome. Member States shall also
allow applicants for asylum requesting a review of a decision
taken under the regular procedure by an administrative body
prior to appeal before a court of law to remain on the territory
of the Member State concerned pending its outcome.

2. Member States may derogate from paragraph 1 by virtue
of laws or regulations in force on the date of adoption of this
Directive.

3. Where national law provides that an applicant for asylum
is not allowed to remain on the territory of the Member State
concerned awaiting the outcome of his appeal or review,
Member States shall ensure that
law has the
competence to rule whether or not such an applicant may,
given the particular circumstances of his/her case, remain on
the Member State concerned, either upon
the territory of
request of the applicant or acting of its own motion.

the court of

No expulsion may take place until the court of law has
4.
ruled in the case referred to in paragraph 3. Member States
may provide for an exception where it has been decided that
grounds of national security or public policy preclude the
applicant for asylum from remaining on the territory of the
Member State concerned.

Article 40

Review and appeal proceedings against decisions taken in
the accelerated procedure

1. Member States shall lay down in national law those cases
in which applicants for asylum lodging an appeal against or
requesting a review of a decision taken under the accelerated
procedure are not to be allowed to remain on the territory of
the Member State concerned pending its outcome.

2.
In such cases, Member States shall ensure that a court of
law has the competence to rule whether or not this applicant
for asylum may, given the particular circumstances of his case,
remain on the territory of the Member State concerned, either
upon request of the concerned applicant or acting on its own
motion.

(a) a refusal to re-open the examination of an application after
its discontinuation pursuant to Articles 19 and 20, and

3.
No expulsion shall take place until the court of law has
ruled in the case referred to in paragraph 2. Member States
may provide for an exception in the following cases:

(b) an extension of the time limit pursuant to Article 24 can
appeal

examination

through

also
proceedings before a court of law.

subjected

be

to

(a) where it has been decided that an application for asylum is

inadmissible as referred to in Article 25;

Article 39

Review and appeal proceedings against decisions taken
under the regular procedure

1. Member States shall allow applicants for asylum lodging
an appeal before a court of law against a decision taken in the

(b) where a court of law has already rejected a request from
for asylum to remain on the
the concerned applicant
territory of the Member State concerned and it has been
decided that, since that rejection, no new relevant facts
have been submitted with respect to the particular circum-
stances of the applicant or his country of origin after this
rejection;

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(c) Where a subsequent application will not be further
examined in conformity with Chapter II as referred to in
Article 33;

(d) Where it has been decided that grounds of national security
or public policy preclude the applicant for asylum from
remaining at the border, the airport or port transit zones
or on the territory of the Member State concerned.

Article 41

Time limits and scope of the examination in review or
appeal

1. Member States shall lay down:

(a) reasonable time limits for giving notice of appeal and,
where applicable,
these time
limits may be shorter for giving notice of appeal and
requests for review in respect of decisions taken under
the accelerated procedure;

requesting a review;

for

(b) all other necessary rules for lodging an appeal and, where

applicable, for requesting a review;

(c) powers whereby the court of law is enabled to uphold or
overturn the decision of the determining authority or has
both;

(d) rules whereby, if the court of law overturns a decision, it
must either remit the case to the determining authority for
a new decision or must itself take a decision on the merits
of the application.

2. Member States shall lay down the conditions under which
it can be assumed that an applicant has implicitly withdrawn
or abandoned his review or appeal together with the rules on
the procedure to be followed in these cases.

CHAPTER V

GENERAL AND FINAL PROVISIONS

Article 42

Non-discrimination

this Directive and shall take all the measures necessary to
ensure that they are enforced. The penalties laid down must
be effective, proportionate and dissuasive. Member States shall
notify those provisions to the Commission by no later than the
date specified in Article 45 and shall notify it without delay of
any subsequent amendments affecting them.

Article 44

Report

No later than two years after the date specified in Article 45,
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.
Member States shall send the Commission all the information
that is appropriate for drawing up this report. After presenting
to the European
the Commission shall report
the report,
Parliament and the Council on the application of
this
Directive in the Member States at least every two years.

Article 45

Transposal

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by 1 January 2005 at
the latest. They shall
forthwith inform the Commission thereof.

When 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.

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.

Member States shall implement this Directive without discrimi-
nation on the basis of sex, race, nationality, membership of a
particular social group, health, colour, ethnic or social origin,
genetic characteristics, language, religion or beliefs, political or
other opinions, membership of a national minority, fortune,
birth, disabilities, age or sexual orientation or country of origin.

Article 46

Entry into force

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

Article 43

Penalties

lay down the penalties applicable to
Member States shall
infringements of the national provisions adopted pursuant to

Article 47

Addressees

This Directive is addressed to the Member States.

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ANNEX I

PRINCIPLES WITH RESPECT TO THE DESIGNATION OF SAFE THIRD COUNTRIES

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

B.

it consistently 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:

— The asylum procedure is prescribed by law.

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

— 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.

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

preter.

— Applicants for asylum are not denied the opportunity to communicate with the UNHCR or other organisations

that are working on behalf of the UNHCR pursuant to an agreement with this country.

— 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.

— The UNHCR or other organisations working on behalf of the UNHCR pursuant to an agreement with this
country have, in general, access to asylum applicants and to the authorities to request information regarding
in the exercise of their
individual applications, the course of the procedure and the decisions taken and,
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:

— it consistently 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 above-mentioned principles; or

— 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

— it nonetheless consistently 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 above-
mentioned principles; or

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

For the purpose of part A a safe third country is also a country that has ratified the Geneva Convention and, while
not having (yet) put in place a procedure in accordance with the principles under 1), nonetheless consistently
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 as evinced by the UNHCR.

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 (hereafter referred to as ‘European Convention’) or both the 1966 International Covenant
on Civil and Political Rights (hereafter referred to as ‘International Covenant’) and the 1984 Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter referred to as ‘Convention
against Torture’), and consistently observes the standards laid down therein with respect to the right to life, freedom
from torture and cruel, inhuman or degrading treatment, freedom from slavery and servitude, the prohibition of
retro-active 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.

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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.

Where Member States solely assess in an individual decision the safety of a third country with respect to a particular
applicant, such a decision need not be motivated on the basis of a general assessment as provided above.

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 consistently observes the basic standards laid down in inter-
national 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 structures and the following rights are consistently 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 consistently 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 a 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.

Where Member States solely assess in an individual decision the safety of a country of origin with respect to a particular
applicant, such a decision need not be motivated on the basis of a general assessment as provided above.