Communication from the Commission to the Council and the European Parliament - A More Efficient Common European Asylum System : The Single Procedure as the Next Step {SEC(2004) 937}
Date: 2004-07-15
Institutions: European Commission
Subjects: EU Member State, administrative formalities, refugee, right of asylum

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.07.2004 
COM(2004) 503 final 

. 

COMMUNICATION FROM THE COMMISSION 
TO THE COUNCIL AND THE EUROPEAN PARLIAMENT 

A More Efficient Common European Asylum System: 
The Single Procedure as the Next Step  

{SEC(2004) 937} 

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INTRODUCTION  

At the Justice and Home Affairs Council in Luxembourg on 29 April 2004, the Council 
formally adopted the 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 (the Qualification Directive) and reached political 
agreement on the Amended proposal for a Council Directive on minimum standards on 
procedures  in  Member  States  for  granting  and  withdrawing  refugee  status  (the  Asylum 
Procedures  Directive).  Formal  adoption  can  take  place  following  the  outcome  of  the 
consultation  of  the  European  Parliament.  The  first  phase  of  the  Common  European 
Asylum System will then be complete. 

The  end  of  the  first  stage  of  the  legislative  programme  under  the  Amsterdam  Treaty 
requires the EU to take a view both of what will be the characteristics of the second stage 
of the Common European Asylum System as well as to reflect on and assess the impact 
of the instruments agreed over the last four years.  

Conclusion  27  of  the  Thessaloniki  European  Council  of  June  2003  called  for  further 
reinforcement of asylum procedures in order to make them more efficient with a view to 
accelerating  as  much  as  possible  the  processing  of  non  international  protection  related 
applications. This calls for a response on how the EU can build such reinforcement and 
acceleration into the procedures which lead to the two forms of international protection 
defined  in  the  Qualification  Directive.  For  the  reasons  set  out  in  this  Communication, 
taking steps towards a single procedure would answer those demands.  

This  Communication  puts  into  context  the  recent  study  on  the  single  procedure  and  is 
intended to launch further discussion on the single procedure which will take place in the 
Council and the European Parliament. After a preparatory phase has been completed the 
Commission will bring forward a proposal for Community legislation. 

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Background to this Communication 

1. 

2. 

The  Commission  Communication  of  November  2000  “Towards  a  common 
asylum procedure and a uniform status valid throughout the Union for persons 
granted  asylum”  pointed  to  the  move  towards  a  ‘one-stop  shop’  type  of 
procedure  by  certain  Member  States.  The  Commission  undertook  to  launch  a 
study as a basis for further reflection.  

The  “Study  on  the  single  asylum  procedure  ‘one-stop  shop’  against  the 
background of the common European asylum system and the goal of a common 
asylum procedure” (the Study) was issued in January 2003 and can be accessed 
at:  

http://europa.eu.int/comm/justice_home/doc_centre/asylum/studies/docs/study_o
ne_stop_shop_en.pdf 

(ISBN: 92-894-5256-0) 

A  full  policy  background  and  a  summary  of  the  findings  of  the  Study  can  be 
found at Annex A.  

Why a single procedure? 

Speed and Efficiency 

3. 

4. 

The  first  and  most  obvious  advantage  of  a  single  procedure  is  the  increase  in 
speed and efficiency of  the procedure. In the Study, those Member States who 
operate a single procedure point out these effects of its introduction. A procedure 
which focuses on assessment of the protection needs defined in the Qualification 
Directive and where a single authority makes a decision on the basis of either of 
those two sets of criteria clearly has the potential to be quicker than the scenario 
of  consecutive  applications  to  one  or  more  authorities  where  similar  facts  are 
assessed and appeals against the decisions of different authorities run in parallel.  

The  centralisation  of  resources  for  dealing  with  applications  for  protection  can 
also  deliver clear  benefits.  A  single  integrated  interview  and  assessment  of  the 
case saves time and resources such as legal and country experts and interpreters 
and  helps  tackle  administrative  challenges  such  as  file  keeping  unity  and  the 
generation  of  representative  statistical  data  based  on  harmonised  definitions. 
This can be a real gain for Member States - a quicker and more efficient system 
aids  the  integration  of  refugees  and  the  removal  of  those  without  protection 
needs. 

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Protection 

5. 

6. 

There  are  good  arguments  for  the  introduction  of  a  single  procedure  related  to 
the protection aspects of applications for international protection. There can be 
no expectation that an applicant for international protection can evaluate whether 
their claim relates to the criteria set out in the Geneva Convention or have any 
knowledge of the other human rights instruments which underlie other forms of 
international protection. 

The minimisation of possible trauma and the transparent nature of one inclusive 
procedure are also encouragements to the applicant to present his or her case in a 
comprehensive manner covering all aspects which make it impossible for him or 
her  to  return  to  the  country  of  origin.  This  avoids  the  possibility  of  significant 
facts being revealed after the main asylum procedure has been completed when 
the guarantees applicable to the asylum process no longer apply. The credibility 
of the applicant may also be improved if they do not have to face a sequence of 
procedures with the risk of their statements being adjusted to take account of the 
differing criteria against which it will be measured by different authorities. 

Public perception 

7. 

The  Commission  Communication  of  March  2003  “On  the  common  asylum 
policy and the Agenda for protection” spoke of a crisis in the asylum system that 
was more and more striking in certain Member States and a growing malaise in 
public  opinion.  Where  one  decision  on  protection 
follows  a  quick, 
comprehensive procedure (followed by the possibility of an appeal against that 
decision),  ambiguity  and  the  damaging  perception  that  there  are  myriad 
possibilities to stay in a country for protection reasons can be dispelled. There is 
no  evidence  that  the  establishment  of  a  single  procedure  increases  the 
attractiveness of accessing the procedure as a whole and the majority of Member 
States  award  a  lesser  status  to  those  not  qualifying  for  Geneva  Convention 
status.  

Returns 

8. 

A  single  procedure  adds  value  to  the  asylum  systems  of  the  Member  States  of 
the  EU  in  their  efforts  to  return  those  who  do  not  qualify  for  international 
protection.  Where  all  possible  protection  obligations  are  included  in  one 
procedure,  the  chance  of  further  protection-related  obstacles  being  raised  to 
delay  or  prevent  removal  is  all  but  removed.  The  authorities  responsible  for 
return then act in the knowledge that there are no outstanding considerations to 
be dealt with. Cooperation between asylum authorities and return authorities is 
obviously key to smoother procedures here. 

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Why action at EU level? 

Closing a potential protection gap 

9. 

10. 

11. 

The Qualification Directive obliges Member States to grant subsidiary protection 
status  to  any  third  country  national  or  stateless  person  who  qualifies  for 
subsidiary protection in accordance with the criteria set out in the Directive. The 
applicant’s  grounds  for  protection  must  be  assessed  in  accordance  with  the 
criteria in the Directive including all relevant facts as they relate to the country 
individual 
of  origin,  relevant  statements  and  documentation,  and 
circumstances of the claim. 

the 

The Asylum Procedures Directive applies to all applications for asylum made in 
the  territory  or  at  the  border  or  transit  zones  of  Member  States.  The  Directive 
says  that  Member  States  which  employ  or  introduce  a  procedure  in  which 
asylum  applications  are  examined  not  only  as  applications  on  the  basis  of  the 
Geneva  Convention  but  also  applications  for  subsidiary  protection  shall  apply 
the Directive throughout their procedure.  

In light of the formal adoption at the JHA Council in Luxembourg on 29 April 
2004 on a Directive which introduces a common understanding of two different 
kinds  of  protection  status  among  Member  States  and  political  agreement  on  a 
Directive  which  obliges  Member  States  to  introduce  minimum  standards  on 
procedures leading to only one of those status, there remains the question of how 
to introduce procedural guarantees for those who apply explicitly for subsidiary 
protection  status  or  who,  at  an  early  stage  in  their  application,  do  not  raise 
grounds  which  are  obviously  relevant  to  the  Geneva  Convention  but  who 
nevertheless would qualify for subsidiary protection. The completion of the first 
stage  of  the  Common  European  Asylum  System  would  clearly  require  the 
closing of this potential ‘protection gap’ so that all applications for international 
protection  as  defined  in  the  Qualification  Directive  are  covered  by  the  same 
procedural guarantees. Under Community law it cannot have been intended that 
those claiming to be in need of subsidiary protection (for which Community law 
will  provide  a  status)  would  not  have  similar  possibilities  to  present  their  case 
and  exercise  appeal  rights  as  those  claiming  to  be  refugees  (for  which 
Community  law  also  provides  a  status).  This is  particularly  relevant  given  that 
Member  States  of  the  EU  often  provide  subsidiary  protection  with  more 
frequency than protection based on the Geneva Convention for applications for 
international  protection.  The  closing  of  this  protection  gap  would  not  in  itself 
constitute a single procedure – rather, two parallel procedures would be provided 
for as a necessary first step towards a true single procedure (a procedure with a 
single authority making a single decision). 

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Making the necessary changes at EU level 

12. 

While  the  implementation  of  the  minimum  standards  Directives  will  require 
changes in administrative practices in most Member States, the introduction of a 
single procedure would involve a more substantial change in the administrative 
structures.  The  starting  positions  of  Member  States  in  relation  to  the  possible 
adoption  of  a  single  procedure  vary  enormously.  The  step-change  required  to 
reach a level field in this area can only be made if a common objective has been 
identified and agreed in an enlarged EU. 

Added value of EU cooperation – a joint methodology 

13. 

In  order  to  initiate  this  change  and  provide  the  technical  assistance  to  prepare 
Member  States  for  the  possibility  of  legal  and  infrastructural  adjustments  the 
Commission recommends two approaches: 

–  Preparatory Phase. A period of consultation, debate and preparation on what 
Member States need to do to unify the procedures which lead to the two types 
of status set out in the Qualification Directive. This shall be initiated by the 
Commission in a series of operational actions and technical projects including 
Commission-chaired  experts  meetings  which  look  at  how  the  practices 
applicable  to  refugee  status  determination  could  be  extended  to  the 
assessment  of  whether  an  applicant  qualifies  for  subsidiary  protection  and 
how  the  whole  procedure  could  further  be  made  more  efficient  and  speedy. 
The  Preparatory  Phase  would  therefore  prepare  the  ground  and  establish 
broad consensus for the bringing forward of: 

–  Community legislation. First step  legislative action to extend the guarantees 
agreed  as  applicable  to  claims  for  refugee  status  in  the  Asylum  Procedures 
Directive  to  those  for  subsidiary  protection  status  in  the  Qualification 
Directive.  Consideration  would  need  to  be  given  to  how  the  Asylum 
Procedures  Directive  might  need  to  be  amended  to  take  into  account  the 
particularities  of  the  assessment  of  claims  for  subsidiary  protection.  Also 
whether  the  Reception  Conditions  would  need  to  be  amended  and  if  the 
Dublin II Regulation might be extended to cover applications for subsidiary 
protection.  

14. 

The interdependency of the two approaches is clear: legislation should  only be 
brought  forward  to  address  those  areas  identified  by  the  Preparatory  Phase  as 
suitable and possible and of real benefit to the asylum systems of EU Member 
States.  

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How to achieve a single procedure in the EU 

A: 

Legislative approach: key questions 

15. 

Legislation  is  clearly  required  for  step  change  envisaged.  However,  any 
legislative  action  needs  to  be  carefully  prepared  and  firmly  grounded  in  the 
results  of  a  consultation  with  Member  States  and  other  relevant  stakeholders 
which addresses all of the technical and political issues which are raised. There 
are  several  key  questions  to  be  answered  including  those  raised  by  the 
Commission  in  the  Communication  of  November  2000  “Towards  a  common 
asylum procedure and a uniform status valid throughout the Union” which were 
examined in some detail in the Study.  

Level of ambition 

16. 

The focus of legislation would depend to a large degree on the preparatory phase 
which  would  assess  a)  what  could  be  changed  by  Member  States  by  simply 
adjusting their operational practices and b) what, on the other hand, would have 
to be changed by legislation  

17. 

There are several possibilities for the key goals underlying legislative action: 

–  to  extend  to  applications  for  subsidiary  protection  the  guarantees  for  first 
instance examination applicable to applications for refugee status pursuant to 
Chapter II of the Asylum Procedures Directive; 

–  to subject negative decisions on applications for subsidiary protection to the 
notion  of  an  effective  remedy  before  a  court  or  tribunal  as  for  decisions 
rejecting  an  application  for  refugee  status  under  Chapter  V  of  the  Asylum 
Procedures Directive; 

–  to  extend  the  scope  of  the  Reception  Conditions  Directive  to  applicants  for 

subsidiary protection; 

–  to  extend  the  scope  of  the  Dublin  II  Regulation  to  cover  applications  for 

subsidiary protection; 

–  to 

introduce  a  common  administrative  approach 

the  examination 
procedures such as the introduction of a single authority for the examination 
of applications for both refugee status and subsidiary protection; 

to 

–  to extend the scope of any of the above Community standards on procedures 
to  other  grounds  preventing  removal  from  the  EU  with  a  view  to  an  all 
inclusive single procedure. 

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Timescale of legislation 

18. 

A  phased  introduction  of  legislation  could  be  envisaged,  focusing  first  on 
applying procedural guarantees to both types of status, then on extending other 
guarantees  in  the  Asylum  Procedures  Directive  followed  by  an  extension  of 
scope  for  the  other  instruments  in  the  first  stage  of  the  Common  European 
Asylum  System  and  gradually  a  single  procedure  for  all  aspects  of  the 
examination of a claim. 

Scope of the single procedure – which procedural standards should be 
included/excluded? 

19. 

As  a  first  step,  at  least  Chapter  II  of  the  Asylum  Procedures  Directive, “Basic 
Principles and Guarantees” (which deals with access to the procedure, the right 
to remain in the Member State pending examination, examination requirements, 
interviews,  rules  on  legal  assistance  and  procedures  for  withdrawal)  must  be 
made equally applicable to applications for subsidiary protection. The standards 
are essential for fair procedures and will constitute the foundation of all common 
procedures under future Community law.  

How should appeals be handled in a single procedure? 

20. 

The obligation to provide an effective remedy in the event of a negative decision 
affecting  an  individual’s  rights  given  under  Community  law  is  a  matter 
prescribed  not  only  by  the  Court  of  Justice  but  also  by  the  European  Court  of 
Human Rights. It will be important to assess how Member States implement the 
core  principle  of  “effective  remedy”  contained  in  the  Asylum  Procedures 
Directive and how that principle is interpreted by the European Court of Justice 
in  the  context  of  different  national  legal  systems.  A  single  procedure  which 
included  the  appeals  level  would  maximise  the  advantages  of  administrative 
efficiency. However, given the potential impact on national legal systems it may 
be preferable to explore that possibility at a later stage, although the Preparatory 
Phase should take on board the views of the respective judiciaries of the Member 
States.  

The scope of the single procedure – including/excluding other grounds for stay 

21. 

It  will  be  important  to  assess  how  far  and  within  which  timeframe  the 
Community  wishes  to  proceed:  whether  there  should  be  an  ‘all  inclusive’ 
procedure  which  can  deal  with  applications  made  on  grounds  outside  those 
described  in  the  Qualification  Directive  or  whether  those  additional  reasons 
should  be  left  to  the  individual  competencies  of  the  Member  States’  alien 
authorities for the reasons set out in the Study (on-the-spot flexibility, practical 
competence etc). 

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How to safeguard the integrity of the Geneva Convention 

22. 

Account  should  also  be  taken  of  the  concerns  that  the  introduction  of  a  single 
procedure might lead to a watering-down of the Geneva Convention outlined in 
the Study. The Study noted that the introduction of a single procedure generally 
increased the tendency to grant a less beneficial status than Convention status to 
prevent  a  refugee  from  taking  advantage  of  all  the  benefits  laid  down  in  the 
Geneva Convention and by extension, the Qualification Directive. Provisions to 
guard  against  this  tendency  would  include  a  predetermined  sequence  of 
examination  so  that  claims  for  subsidiary  protection  are  examined  only  after  a 
negative  assessment  of  Geneva  Convention  grounds  and  a  properly  reasoned 
decision  for  rejecting  a  claim  for  Geneva  Convention  status  where  subsidiary 
protection  is  allowed.  Training  which  deepened  practitioners’  understanding  of 
the  Geneva  Convention  would  prove  a  useful  enabler  of  these  two  provisions 
and  would  also  be  used  to  reinforce  understanding  of  where  obligations  under 
the Geneva Convention cease and those under subsidiary protection begin. 

Frontloading – maintaining the quality of decisions 

23. 

24. 

There is a balance to be struck between the speed and the quality of procedures. 
While  legislation  should  help  accelerate  the  asylum  procedure,  good  quality 
decision  making,  particularly  at  first  instance  is  also  important  to  ensure  the 
integrity  of  the  system  (and  this  can  reduce  the  number  of  appeals  allowed 
thereby  saving  more  time  and  resources).  Any  legislative  measure  should  take 
account  of  this  balance.  In  the  mid  to  long  term  the  EU  should  agree  on  key 
principles  of  good  practice  for  administrative  acts  such  as  interviewing  and 
decision  making  and  could  even  establish  a  Centre  of  Excellence  for  asylum 
practitioners  which  promulgates  best  practice  and  provides  training  on  these 
issues  as  well  as  acting  as  a  key  resource  for  the  sharing  and  exchange  of 
Country of Origin Information.  

Also in this context consideration should be given to the question of whether the 
examination  on  subsidiary  protection  grounds  should  take  place  ex  officio 
(where  the  examining  office  will  automatically  look  at  grounds  for  subsidiary 
protection  if  those  for  Geneva  Convention  status  are  not  fulfilled)  or  only  on 
request  given  that  an  ex  officio  examination  of  subsidiary  protection  grounds 
would  help  reduce  possible  delays  incurred  during  return  procedures  by 
removing the possibility that these grounds are raised to delay removal. 

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Returns 

25. 

A single procedure on applications for international protection as defined in the 
Qualification Directive will reinforce the potential for an effective return process 
within the Common European Asylum System. To maximise the effectiveness of 
an EU single procedure in relation to returns, Member States need to agree that a 
‘final  decision’  (e.g.  an  unfounded  appeal  against  a  negative  decision  on  the 
grounds  in  the  Qualification  Directive)  was  also  the  decision  which  triggered 
return.  To  further  enhance  the  possibilities  for  effective  return,  the  single 
procedure  could  be  extended  to  grounds  outside  the  Qualification  Directive  or 
include an early warning and cooperation mechanism with return authorities. A 
possible  end  goal  could  be  to  ensure  parallel  decision  making  processes  in  the 
single  asylum  procedure  and  the  return  procedure.  In  this  respect,  particular 
attention  should  be  paid  to  appropriate  treatment  of  repeat  applications 
preventing effective return/removal action. 

Read-across to other instruments 

26. 

All the measures in the asylum package would be affected by the introduction of 
a single procedure to some degree. The Asylum Procedures Directive would be 
the vehicle for legislative change if Member States decided that they wanted to 
limit the introduction of a single procedure to the types of status covered by the 
Qualification  Directive.  There  would  be  no  amendment  required  to  the 
Qualification  Directive  unless  Member  States  decided  that  a  single  residence 
permit  or  status  should  issue  from  the  grant  of  international  protection.  The 
scope  of  the  Reception  Conditions  Directive  should  also  be  extended  to  cover 
applications for subsidiary protection. In practice that may have a low impact as 
according  to  the  definitions  in  that  Directive  any  application  for  international 
protection  is  presumed  to  be  an  application  for  asylum  unless  another  kind  of 
protection  that  can  be  applied  for  separately  is explicitly  requested.  Even  now, 
where an applicant is found not to be a refugee they still fall within the scope of 
the  Directive  until  a  decision  is  taken  after  which  an  applicant  can  no  longer 
remain  on  the  territory  of  a  Member  State  as  an  asylum  seeker.  Although  the 
Dublin II Regulation applies only to applications for asylum in the sense of the 
Geneva  Convention  there  is  no  convincing  reason  to  restrict  the  application  of 
the Regulation to applicants for Convention status only. 

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B: 

The Preparatory Phase 

27. 

28. 

In order to ensure that EC legislation is built on sound foundations of consensus, 
mutual  knowledge  and  understanding  of  the  challenges  faced  in  changing  the 
asylum  systems  of  the  Member  States  to  adapt  to  a  single  procedure  a 
preparatory phase is required to lay these foundations. The Preparatory Phase 
will  begin  in  January  2005  and  run  in  tandem  with  the  implementation  of  the 
first  stage  legislation  of  the  Common  European  Asylum  System.  The 
Commission  will  submit  a  paper  outlining  a  One-Stop  Shop  Action  Plan  to 
implement this period of consultation, debate and preparation on what Member 
States  could  do  to  unify  their  procedures  (detailed  outline  at  Annex  D). 
Coordination will be ensured by the Committee on Immigration and Asylum; the 
Commission will report to this body on the outcomes of each activity. At the end 
of  the  process,  a  conference  should  analyse  the  results  of  the  activities  and 
provide  guidance  to  the  Commission  on  how  to  feed  them  into  the  process  of 
drawing up legislation.  

The aim of the Preparatory Phase would be threefold: i) to steer and inform at 
a technical levelthe discussion on how the EU should move towards the adoption 
of a single procedure, ii) to identify those elements of change which need to take 
place and iii) to make those changes by the adjustment of operational practices 
as much as possible before or in parallel with a legislative approach. Finally, The 
Preparatory Phase would also serve as a platform for the consultative process 
which needs to take place ahead of the bringing forward of EC legislation. 

–  The  Commission  will  take  charge  of  a  comprehensive  and  coherent 
programme  of  activities  including  the  exchange  of  information  on  best 
practices,  the  launch  of  Community  actions  of  ERF  II  and  the  initiation  of 
calls for projects under the ARGO programmes to cater for the specific needs 
expressed by Member States in this area. 

–  Member States are invited to initiate specific operational measures to feed the 
process  of  progressive  capacity  building  such  as  twinning  projects  and  staff 
exchanges between authorities applying the single procedure and authorities 
who are planning to do so, as well as training sessions for practitioners etc. 

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29. 

30. 

31. 

32. 

33. 

The  Preparatory  Phase  will  address  the  questions  raised  about  how  the  EU 
should  introduce  a  single  procedure  through  work  along  four  main  themes. 
Evaluation  of  the  implementation  of  the  relevant  provisions  in  the  existing  EC 
asylum legislation will provide the foundation in examining how Member States 
are  implementing  those  provisions  in  the  first  stage  of  the  Common  European 
Asylum System which require Member States to introduce the same treatment to 
both applicants for refugee status and subsidiary protection (for example Article 
4 of the  Qualification Directive on the assessment of facts and circumstances). 
Comparative  analysis  of  single  and  separate  procedures  and  a  focus  on  how 
ancillary  measures  to  a  single  procedure  can  improve  efficiency  will  build  on 
this. These three themes will be reinforced by resource and costings comparisons 
between  different  national  systems.  The  Preparatory  Phase should  also  provide 
an innovative method of arriving at consensus on where legislation should take 
place  and  the  scope  of  that  legislation;  the  opportunity  for  ‘bottom-up’ 
harmonisation through the sharing and establishment of best practices. 

Taking  these  steps  addresses  Thessaloniki’s  call  for  further  reinforcement  of 
asylum  procedures  in  order  to  make  them  more  efficient  with  a  view  to 
accelerating  as  much  as  possible  the  processing  of  non  international  protection 
related applications and enables a completion of the protection objectives aimed 
at under the Tampere mandate.  

Conclusions 

The  Commission  will  work  towards  achieving  the  objectives  identified  in  the 
Communication,  in  close  cooperation  with  Member  States  and  the  European 
Parliament, UNHCR and other relevant stakeholders.  

The  Commission  will  bring  forward  the  ‘One-Stop  Shop  Action  Plan’  by  the 
end of 2004 as the main implementing tool of the Preparatory Phase necessary 
before legislation will take place. 

The Commission asks the Council and the European Parliament to endorse the 
two step approach set out in this Communication as the next step along the road 
to  achieving  the  common  asylum  procedure  leading  to  a  uniform  status  valid 
throughout the Union for those granted asylum in view of the progress made so 
far on the Tampere agenda.  

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