Council Directive 2005/85/EC of  1 December 2005  on minimum standards on procedures in Member States for granting and withdrawing refugee status
Date: 2005-12-01
Institutions: Council of the European Union
Subjects: UNHCR, access to information, refugee, right of asylum, third country

13.12.2005

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Official Journal of the European Union

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COUNCIL DIRECTIVE 2005/85/EC

of 1 December 2005

on minimum standards on procedures in Member States for granting and withdrawing refugee
status

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty
Community,
paragraph of Article 63 thereof,

and in particular point

establishing the European
first

(1)(d) of

the

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Having regard to the opinion of the European Economic and
Social Committee (3),

Whereas:

(1)

(2)

(3)

including a Common
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,
seek
circumstances,
protection in the Community.

legitimately

forced

by

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

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.

(1) OJ C 62, 27.2.2001, p. 231 and OJ C 291, 26.11.2002, p. 143.
(2) OJ C 77, 28.3.2002, p. 94.
(3) OJ C 193, 10.7.2001, p. 77. Opinion delivered following non-

compulsory consultation.

(4)

(5)

(6)

(7)

The minimum standards laid down in this Directive on
procedures in Member States for granting or withdrawing
refugee status are therefore a first measure on asylum
procedures.

The main objective of this Directive is to introduce a
minimum framework in the Community on procedures
for granting and withdrawing refugee status.

rules on the procedures

The approximation of
for
granting and withdrawing refugee status should help to
limit the secondary movements of applicants for asylum
between Member States, where such movement would be
caused by differences in legal frameworks.

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

that

(8)

This Directive respects
rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.

the fundamental

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

international

(10)

(11)

It is essential that decisions on all applications for asylum
in the first
be taken on the basis of
instance, by authorities whose personnel has the appro-
priate knowledge or receives the necessary training in the
field of asylum and refugee matters.

the facts and,

It is in the interest of both Member States and applicants
for asylum to decide as soon as possible on applications
for asylum. The organisation of the processing of appli-
cations for asylum should be left to the discretion of
in accordance with
Member States, so that they may,
their national needs,
the
accelerate
or
prioritise
processing of any application, taking into account the
standards in this Directive.

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(12)

The notion of public order may cover a conviction for
committing a serious crime.

(13)

the relevant

In the interests of a correct recognition of those persons
in need of protection as refugees within the meaning of
the Geneva Convention, every applicant
Article 1 of
should, subject to certain exceptions, have an effective
access to procedures, the opportunity to cooperate and
properly communicate with the competent authorities so
as to present
facts of his/her case and
sufficient procedural guarantees to pursue his/her case
throughout all stages of the procedure. Moreover, the
procedure
asylum is
in which an application for
examined should normally provide an applicant at least
with the right to stay pending a decision by the deter-
mining authority, access to the services of an interpreter
for submitting his/her case if interviewed by the autho-
rities, the opportunity to communicate with a represen-
tative of
the United Nations High Commissioner for
Refugees (UNHCR) or with any organisation working
on its behalf, the right to appropriate notification of a
decision, a motivation of that decision in fact and in law,
the opportunity to consult a legal adviser or other coun-
to be informed of his/her legal
sellor, and the right
the
position at decisive moments
procedure,
in a language he/she can reasonably be
supposed to understand.

in the course of

(14)

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

(17) A key consideration for

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

the applicant

(18) Given the level of harmonisation achieved on the quali-
fication of third country nationals and stateless persons
as
for designating third
countries as safe countries of origin should be estab-
lished.

common criteria

refugees,

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

the list, after consultation of

the designation of

importance of

(20)

(21)

(15) Where an applicant makes a subsequent application
without presenting new evidence or
it
would be disproportionate to oblige Member States to
carry out a new full examination procedure.
In these
choice of
cases, Member
procedure
guarantees
exceptions
involving
normally enjoyed by the applicant.

a
to the

should have

arguments,

States

(16) Many asylum applications are made at the border or in a
transit zone of a Member State prior to a decision on the
entry of the applicant. Member States should be able to
keep existing procedures adapted to the specific situation
of these applicants at the border. Common rules should
be defined on possible exceptions made in these circum-
stances to the guarantees normally enjoyed by applicants.
Border procedures
to those
should mainly
applicants who do not meet the conditions for entry
into the territory of the Member States.

apply

countries

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

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

subject

are

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for

the qualification and status of

(22) Member States should examine all applications on the
i.e. assess whether the applicant in question
substance,
qualifies as a refugee
in accordance with Council
Directive 2004/83/EC of 29 April 2004 on minimum
third
standards
country nationals or stateless persons as refugees or as
persons who otherwise need international protection and
the content of the protection granted (1), except where
the present Directive provides otherwise,
in particular
where it can be reasonably assumed that another
country would do the examination or provide sufficient
protection. In particular, Member States should not be
obliged to assess the substance of an asylum application
where a first country of asylum has granted the applicant
refugee status or otherwise sufficient protection and the
applicant will be readmitted to this country.

law,

can reasonably be

(23) Member States should also not be obliged to assess the
substance of an asylum application where the applicant,
due to a connection to a third country as defined by
national
expected to seek
protection in that third country. Member States should
only proceed on this basis where this particular applicant
would be safe in the third country concerned. In order to
avoid secondary movements of applicants, common prin-
ciples for the consideration or designation by Member
States of third countries as safe should be established.

(24)

their

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

(25)

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

(26) With respect to the withdrawal of refugee status, Member
States should ensure that persons benefiting from refugee
status are duly informed of a possible reconsideration of
their status and have the opportunity to submit their

authorities

a
the
point of view before
motivated decision to withdraw their status. However,
should be allowed
dispensing with these guarantees
where the reasons for
the refugee
status is not related to a change of the conditions on
which the recognition was based.

the cessation of

can take

(27)

(28)

(29)

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

facts, depends on the

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

This Directive does not deal with procedures governed by
Council Regulation (EC) No 343/2003 of 18 February
2003 establishing the criteria and mechanisms for deter-
mining the Member State responsible for examining an
asylum application lodged in one of the Member States
by a third-country national (2).

(30)

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

(31)

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

(32)

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

(1) OJ L 304, 30.9.2004, p. 12.

(2) OJ L 50, 25.2.2003, p. 1.

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(33)

(34)

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

in the adoption and application of

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

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

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

Article 2

Definitions

For the purposes of this Directive:

(a)

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

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

longer subject to a remedy within the framework of Chapter
V of this Directive irrespective of whether such remedy has
the effect of allowing applicants to remain in the Member
States concerned pending its outcome, subject to Annex III
to this Directive;

(e)

‘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, subject to Annex I;

(f)

‘refugee’ means a third country national or a stateless person
who fulfils the requirements of Article 1 of the Geneva
Convention as set out in Directive 2004/83/EC;

(g)

‘refugee status’ means the recognition by a Member State of
a third country national or stateless person as a refugee;

(h) ‘unaccompanied minor’ means a person below the age of 18
who arrives in the territory of the Member States unaccom-
panied by an adult responsible for him/her whether by law
or by custom, and for as long as he/she is not effectively
taken into the care of such a person; it includes a minor
who is left unaccompanied after he/she has entered the
territory of the Member States;

(i)

(j)

‘representative’ means a person acting on behalf of an orga-
nisation representing an unaccompanied minor as legal
guardian, a person acting on behalf of a national organi-
sation which is responsible for the care and well-being of
minors, or any other appropriate representation appointed
to ensure his/her best interests;

‘withdrawal of refugee status’ means the decision by a
competent authority to revoke, end or refuse to renew the
refugee status of a person in accordance with Directive
2004/83/EC;

(k)

‘remain in the Member State’ means to remain in the
territory,
including at the border or in transit zones, of
the Member State in which the application for asylum has
been made or is being examined.

Article 3

Scope

(c)

‘applicant’ or ‘applicant for asylum’ means a third country
national or stateless person who has made an application
for asylum in respect of which a final decision has not yet
been taken;

1.
This Directive shall apply to all applications for asylum
made in the territory, including at the border or in the transit
zones of the Member States, and to the withdrawal of refugee
status.

(d)

‘final decision’ means a decision on whether the third
country national or stateless person be granted refugee
status by virtue of Directive 2004/83/EC and which is no

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

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

4. Moreover, Member States may decide to apply this
Directive in procedures for deciding on applications for any
kind of international protection.

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

3. Where authorities are designated in accordance with
paragraph 2, Member States shall ensure that the personnel of
such authorities have the appropriate knowledge or receive the
necessary training to fulfil their obligations when implementing
this Directive.

Article 4

Responsible authorities

Article 5

More favourable provisions

1. Member States shall designate for all procedures a deter-
mining authority which will be responsible for an appropriate
examination of
in accordance with this
Directive, in particular Articles 8(2) and 9.

the applications

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

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

CHAPTER II

BASIC PRINCIPLES AND GUARANTEES

Article 6

Access to the procedure

However, Member States may provide

2.
authority is responsible for the purposes of:

that another

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

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

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

to whether

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

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

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

Consent shall be requested at the time the application is lodged
interview with the
or, at
dependant adult is conducted.

the latest, when the personal

4. Member States may determine in national legislation:

(d) processing cases

in the framework of

the procedures

provided for in Article 35(1);

(a)

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

(e) refusing permission to enter

the
procedure provided for in Article 35(2) to (5), subject to
the conditions and as set out therein;

in the framework of

(b) the cases in which the application of an unaccompanied
minor has to be lodged by a representative as provided
for in Article 17(1)(a);

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(c)

the cases in which the lodging of an application for asylum
is deemed to constitute also the lodging of an application
for asylum for any unmarried minor.

necessary, in countries through which they have transited,
such information is made available to the
and that
personnel
and
responsible
taking decisions;

examining applications

for

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

(c)

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

Article 7

Right to remain in the Member State pending the exami-
nation of the application

Applicants shall be allowed to remain in the Member
1.
State, for the sole purpose of the procedure, until the deter-
mining authority has made a decision in accordance with the
procedures at first instance set out in Chapter III. This right to
remain shall not constitute an entitlement to a residence permit.

The authorities referred to in Chapter V shall, through the
3.
determining authority or the applicant or otherwise, have access
to the general
information referred to in paragraph 2(b),
necessary for the fulfilment of their task.

4. Member States may provide for rules concerning the
translation of documents relevant for the examination of appli-
cations.

2. Member States can make an exception only where,
in
accordance with Articles 32 and 34, a subsequent application
will not be further examined or where they will surrender or
extradite, as appropriate, a person either to another Member
State pursuant to obligations in accordance with a European
arrest warrant (1) or otherwise, or to a third country, or to
international criminal courts or tribunals.

Article 9

Requirements for a decision by the determining authority

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

Article 8

Requirements for the examination of applications

1. Without prejudice to Article 23(4)(i), 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 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 indivi-

dually, objectively and impartially;

(b) precise and up-to-date information is obtained from various
sources, such as the United Nations High Commissioner for
Refugees (UNHCR), as to the general situation prevailing in
the countries of origin of applicants for asylum and, where

2. Member States shall also ensure that, where 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.

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

file and that

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

(1) Council Framework Decision 2002/584/JHA of 13 June 2002 on
the European arrest warrant and the surrender procedures between
Member States (OJ L 190, 18.7.2002, p. 1).

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

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Article 10

Article 11

Guarantees for applicants for asylum

Obligations of the applicants for asylum

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

1. Member States may impose upon applicants for asylum
obligations to cooperate with the competent authorities insofar
as these obligations are necessary for the processing of the
application.

(a)

they shall be informed in a language which they may
reasonably be supposed to understand of the procedure to
be followed and of their rights and obligations during the
procedure and the possible consequences of not complying
with their obligations and not cooperating with the autho-
rities. They shall be informed of the time-frame, as well as
the means at their disposal for fulfilling the obligation to
submit the elements as referred to in Article 4 of Directive
2004/83/EC. This information shall be given in time to
enable them to exercise the rights guaranteed in this
Directive and to comply with the obligations described in
Article 11;

the
case

receive
their

an interpreter

competent
shall

services of
to the

for
(b) they shall
authorities
submitting
whenever necessary. Member States
it
necessary to give these services at least when the deter-
mining authority calls upon the applicant to be interviewed
as referred to in Articles 12 and 13 and appropriate
communication cannot be ensured without such services.
In this case and in other cases where the competent autho-
rities call upon the applicant, these services shall be paid for
out of public funds;

consider

(c)

they shall not be denied the opportunity to communicate
with the UNHCR or with any other organisation working
on behalf of the UNHCR in the territory of the Member
State pursuant to an agreement with that Member State;

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

(e)

language

they shall be informed of the result of the decision by the
determining authority in a
they may
reasonably be supposed to understand when they are not
assisted or represented by a legal adviser or other counsellor
and when free legal assistance is not available. The infor-
mation provided shall
include information on how to
challenge a negative decision in accordance with the
provisions of Article 9(2).

that

2.

In particular, Member States may provide that:

(a) applicants

for asylum are

to the
competent authorities or to appear before them in person,
either without delay or at a specified time;

required to report

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

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

(d) the competent authorities may search the applicant and the

items he/she carries with him/her;

(e)

the competent authorities may take a photograph of the
applicant; and

(f)

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

Article 12

Personal interview

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

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

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

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

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2.

The personal interview may be omitted where:

(a)

the determining authority is able to take a positive decision
on the basis of evidence available; or

for

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

the purpose of

(c)

the determining authority, on the basis of a complete exam-
ination of information provided by the applicant, considers
the application to be unfounded in cases where the circum-
(h) and (j)
stances mentioned in Article 23(4)(a),
apply.

(g),

(c),

The personal interview may also be omitted where it is
3.
not reasonably practicable,
in particular where the competent
authority is of the opinion that the applicant is unfit or unable
to be interviewed owing to enduring circumstances beyond
his/her control. When in doubt, Member States may require a
medical or psychological certificate.

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

interview pursuant

4.
The absence of a personal interview in accordance with
this Article shall not prevent the determining authority from
taking a decision on an application for asylum.

5.
The absence of a personal interview pursuant to paragraph
2(b) and (c) and paragraph 3 shall not adversely affect the
decision of the determining authority.

A personal

2.
which ensure appropriate confidentiality.

interview shall take place under conditions

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

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

(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 for asylum if there is another language which
he/she may reasonably be supposed to understand and in
which he/she is able to communicate.

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

This Article is also applicable to the meeting referred to in

5.
Article 12(2)(b).

Article 14

Status of

the report of a personal

interview in the

procedure

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

Irrespective of Article 20(1), Member States, when
6.
deciding on the application for asylum, may take
into
account the fact that the applicant failed to appear for the
personal
interview, unless he/she had good reasons for the
failure to appear.

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

Article 13

Requirements for a personal interview

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

1.
A personal interview shall normally take place without the
presence of family members unless the determining authority
considers it necessary for an appropriate examination to have
other family members present.

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

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The refusal of an applicant to approve the contents of the
report
the determining authority from
taking a decision on his/her application.

shall not prevent

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

This Article is also applicable to the meeting referred to in

4.
Article 12(2)(b).

Article 15

Right to legal assistance and representation

1. Member States shall allow applicants for asylum the
in an effective
opportunity, at
manner a legal adviser or other counsellor, admitted or
permitted as such under national
law, on matters relating to
their asylum applications.

their own cost,

to consult

2.
In the event of a negative decision by a determining
authority, Member States shall ensure that free legal assistance
and/or representation be granted on request, subject
to the
provisions of paragraph 3.

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

legislation

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

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

(c) only to legal advisers or other counsellors

designated by national
applicants for asylum; and/or

law to assist and/or

specifically
represent

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

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

Rules concerning the modalities for filing and processing
representation may be

legal assistance and/or

4.
requests for
provided by Member States.

5. Member States may also:

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

Article 16

Scope of legal assistance and representation

1. Member States shall ensure that a legal adviser or other
counsellor admitted or permitted as such under national law,
and who assists or represents an applicant for 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 V, insofar as the information is relevant
to the examination of the application.

Member States may make an exception where disclosure of
information or sources would jeopardise national security, the
security of the organisations or person(s) providing the infor-
mation or the security of the person(s) to whom the infor-
mation relates or where the investigative interests relating to
the examination of applications of asylum by the competent
authorities of the Member States or the international relations
of the Member States would be compromised. In these cases,
access to the information or sources in question shall be
available to the authorities referred to in Chapter V, except
where such access is precluded in cases of national security.

2. Member States shall ensure that the legal adviser or other
counsellor who assists or represents an applicant for asylum has
access to closed areas, such as detention facilities and transit
zones, for the purpose of consulting that applicant. Member
States may only limit the possibility of visiting applicants in
closed areas where such limitation is, by virtue of national
legislation, objectively necessary for the security, public order
or administrative management of the area, or in order to ensure
an efficient examination of the application, provided that access
by the legal adviser or other counsellor is not thereby severely
limited or rendered impossible.

3. Member States may provide rules covering the presence of
interviews in the
legal advisers or other counsellors at all
procedure, without prejudice to this Article or
to Article
17(1)(b).

(a)

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

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

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

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

The absence of a legal adviser or other counsellor shall not
the
authority
prevent
personal interview with the applicant.

from conducting

competent

the

Article 17

Guarantees for unaccompanied minors

1. With respect
in this
Directive and without prejudice to the provisions of Articles
12 and 14, Member States shall:

to all procedures provided for

(a) as soon as possible take measures to ensure that a repre-
sentative represents and/or assists the unaccompanied minor
with respect to the examination of the application. This
representative can also be the representative referred to in
Article 19 of Directive 2003/9/EC of 27 January 2003
the reception of
laying down minimum standards
asylum seekers (1);

for

(b) ensure that the representative is given the opportunity to
inform the unaccompanied minor about the meaning and
possible consequences of the personal interview and, where
appropriate, how to prepare himself/herself for the personal
interview. Member States shall allow the representative to be
present at that interview and to ask questions or make
comments, within the framework set by the person who
conducts the interview.

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

2. Member States may refrain from appointing a represen-
tative where the unaccompanied minor:

(a) will

in all

likelihood reach the age of maturity before a

decision at first instance is taken; or

4. Member States shall ensure that:

(a)

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

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

States may use medical

5. Member
to
determine the age of unaccompanied minors within the
framework of the examination of an application for asylum.

examinations

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

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

the unaccompanied minor

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

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

(c)

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 that
refusal.

(c)

is married or has been married.

(1) OJ L 31, 6.2.2003, p. 18.

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

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The best interests of the child shall be a primary consi-
6.
deration for Member States when implementing this Article.

the applicant demonstrates within a reasonable time that
his/her failure was due to circumstances beyond his control;

Article 18

Detention

1. Member States shall not hold a person in detention for
the sole reason that he/she is an applicant for asylum.

2. Where an applicant
Member States
speedy judicial review.

shall ensure that

for asylum is held in detention,
there is a possibility of

Article 19

Procedure in case of withdrawal of the application

Insofar as Member States provide for the possibility of
1.
explicit withdrawal of
law,
when an applicant for asylum explicitly withdraws his/her appli-
cation for asylum, Member States shall ensure that the deter-
mining authority takes a decision to either discontinue the
examination or reject the application.

the application under national

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

(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, or he/she
has not within a reasonable time complied with reporting
duties or other obligations to communicate.

For the purposes of implementing these provisions, Member
States may lay down time-limits or guidelines.

2. Member States shall ensure that the applicant who reports
again to the competent authority after a decision to discontinue
as referred to in paragraph 1 of this Article is taken, is entitled
to request that his/her case be reopened, unless the request is
examined in accordance with Articles 32 and 34.

Member States may provide for a time-limit after which the
applicant’s case can no longer be re-opened.

Member States shall ensure that such a person is not removed
contrary to the principle of non-refoulement.

Member States may allow the determining authority to take up
the examination at the stage where it was discontinued.

Article 20

1. Member States shall allow the UNHCR:

Article 21

The role of UNHCR

Procedure in the case of

implicit withdrawal or aban-

donment of the application

1. When there is reasonable cause to consider
that an
applicant for asylum has implicitly withdrawn or abandoned
his/her application for asylum, Member States shall ensure
that
the determining authority takes a decision to either
discontinue the examination or reject the application on the
basis that the applicant has not established an entitlement to
refugee status in accordance with Directive 2004/83/EC.

(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
asylum, on the course of the procedure and on the decisions
taken, provided that the applicant for asylum agrees thereto;

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

(c)

its views,

in the exercise of

its supervisory
to present
responsibilities under Article 35 of the Geneva Convention,
to any competent authorities regarding individual appli-
cations for asylum at any stage of the procedure.

(a) he/she has failed to respond to requests to provide infor-
mation essential to his/her application in terms of Article 4
of Directive 2004/83/EC or has not appeared for a personal
interview as provided for in Articles 12, 13 and 14, unless

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

the UNHCR pursuant

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Article 22

Collection of information on individual cases

4. Member States may also provide that an examination
procedure in accordance with the basic principles and guar-
antees of Chapter II be prioritised or accelerated if:

For the purposes of examining individual cases, Member States
shall not:

(a)

(a) directly disclose information regarding individual appli-
that an application has
cations for asylum, or the fact
been made, to the alleged actor(s) of persecution of the
applicant for asylum;

(b) obtain any information from the alleged actor(s) of perse-
cution in a manner that would result in such actor(s) being
directly informed of the fact that an application has been
made by the applicant in question, and would jeopardise the
physical integrity of the applicant and his/her dependants,
or the liberty and security of his/her family members still
living in the country of origin.

CHAPTER III

PROCEDURES AT FIRST INSTANCE

SECTION I

Article 23

Examination procedure

1. Member States shall process applications for asylum in an
examination procedure in accordance with the basic principles
and guarantees of Chapter II.

2. Member States shall ensure that such a procedure is
soon as possible, without prejudice to an
concluded as
adequate and complete examination.

Member States shall ensure that, where a decision cannot be
taken within six months, the applicant concerned shall either:

(a) be informed of the delay; or

(b) receive, upon his/her request, information on the time-frame
within which the decision on his/her application is to be
expected. Such information shall not constitute an obli-
gation for
applicant
concerned to take a decision within that time-frame.

the Member State

towards

the

applicant,

the
application and
in submitting his/her
presenting the facts, has only raised issues that are not
relevant or of minimal relevance to the examination of
whether he/she qualifies
refugee by virtue of
as
Directive 2004/83/EC; or

a

(b)

the applicant clearly does not qualify as a refugee or for
State under Directive
status
refugee
2004/83/EC; or

in a Member

(c)

the application for asylum is considered to be unfounded:

(i) because the applicant is from a safe country of origin
within the meaning of Articles 29, 30 and 31, or

(ii) because the country which is not a Member State, is
considered to be a safe third country for the applicant,
without prejudice to Article 28(1); or

(d)

the applicant has misled the authorities by presenting false
information or documents or by withholding relevant
information or documents with respect to his/her identity
and/or nationality that could have had a negative impact
on the decision; or

(e)

the applicant has filed another application for asylum
stating other personal data; or

(f)

(g)

the applicant has not produced information establishing
with a reasonable degree of certainty his/her identity or
nationality, or it is likely that,
in bad faith, he/she has
destroyed or disposed of an identity or travel document
that would have helped establish his/her
identity or
nationality; or

has made
insufficient

inconsistent,
contradictory,
the
applicant
representations which make
improbable or
his/her claim clearly unconvincing in relation to his/her
having been the object of persecution referred to in
Directive 2004/83/EC; or

(h)

the applicant has submitted a subsequent application which
does not raise any relevant new elements with respect to
his/her particular circumstances or
to the situation in
his/her country of origin; or

3. Member States may prioritise or accelerate any exami-
nation in accordance with the basic principles and guarantees
of Chapter II,
including where the application is likely to be
well-founded or where the applicant has special needs.

(i)

the applicant has failed without reasonable cause to make
his/her application earlier, having had opportunity to do so;
or

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(j)

the applicant 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;
or

(k)

the applicant has failed without good reason to comply
with obligations referred to in Article 4(1) and (2) of
Directive 2004/83/EC or in Articles11(2)(a) and (b) and
20(1) of this Directive; or

(l)

the applicant entered the territory of the Member State
unlawfully or prolonged his/her
stay unlawfully and,
without good reason, has either not presented himself/-
herself to the authorities and/or filed an application for
asylum as soon as possible, given the circumstances of
his/her entry; or

(m) the applicant is a danger to the national security or public
order of
the Member State, or the applicant has been
forcibly expelled for serious reasons of public security
and public order under national law; or

(n)

the applicant refuses to comply with an obligation to have
his/her
taken in accordance with relevant
Community and/or national legislation; or

fingerprints

(o)

the application was made by an unmarried minor to whom
Article 6(4)(c) applies, after the application of the parents
or parent responsible for the minor has been rejected and
no relevant new elements were raised with respect
to
his/her particular circumstances or
to the situation in
his/her country of origin.

SECTION II

Article 25

Inadmissible applications

1.
In addition to cases in which an application is not
examined in accordance with Regulation (EC) No 343/2003,
Member States are not
the
applicant qualifies as a refugee in accordance with Directive
2004/83/EC where an application is considered inadmissible
pursuant to this Article.

required to examine whether

2. Member States may consider an application for asylum as
inadmissible pursuant to this Article if:

(a) another Member State has granted refugee status;

(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 Article 27;

(d) the applicant is allowed to remain in the Member State
concerned on some other grounds and as result of this
he/she has been granted a status equivalent to the rights
and benefits of the refugee status by virtue of Directive
2004/83/EC;

(e)

the applicant is allowed to remain in the territory of the
Member State concerned on some other grounds which
protect him/her against refoulement pending the outcome
of a procedure for the determination of status pursuant to
point (d);

Article 24

Specific procedures

(f)

the applicant has lodged an identical application after a final
decision;

1. Member States may provide for the following specific
procedures derogating from the basic principles and guarantees
of Chapter II:

(a) a preliminary examination for the purposes of processing
cases considered within the framework set out in Section IV;

(b) procedures for the purposes of processing cases considered

within the framework set out in Section V.

(g) a dependant of the applicant lodges an application, after
he/she has in accordance with Article 6(3) consented to
have his/her case be part of an application made on
his/her behalf, and there are no facts
relating to the
dependant’s situation, which justify a separate application.

Article 26

The concept of first country of asylum

A country can be considered to be a first country of asylum for
a particular applicant for asylum if:

2. Member States may also provide a derogation in respect
of Section VI.

(a) he/she has been recognised in that country as a refugee and
he/she can still avail himself/herself of that protection; or

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(b) he/she otherwise

sufficient protection in that
including benefiting from the principle of non-

enjoys

country,
refoulement;

provided that he/she will be re-admitted to that country.

In applying the concept of
first country of asylum to the
particular circumstances of an applicant for asylum Member
States may take into account Article 27(1).

Article 27

The safe third country concept

1. Member States may apply the safe third country concept
only where the competent authorities are satisfied that a person
seeking asylum will be treated in accordance with the following
principles in the third country concerned:

(a)

life and liberty are not
religion, nationality, membership of a particular
group or political opinion;

threatened on account of race,
social

is safe for a particular applicant which, as a minimum, shall
permit the applicant to challenge the application of the safe
third country concept on the grounds that he/she would be
subjected to torture, cruel, inhuman or degrading treatment
or punishment.

3. When implementing a decision solely based on this
Article, Member States shall:

(a)

inform the applicant accordingly; and

(b) provide him/her with a document informing the authorities
of the third country, in the language of that country, that
the application has not been examined in substance.

4. Where the third country does not permit the applicant for
asylum to enter its territory, Member States shall ensure that
access to a procedure is given in accordance with the basic
principles and guarantees described in Chapter II.

(b) the principle of non-refoulement in accordance with the

Geneva Convention is respected;

5. Member States shall inform the Commission periodically
of the countries to which this concept is applied in accordance
with the provisions of this Article.

(c)

the prohibition of removal,
freedom from torture and cruel,
treatment as laid down in international
and

in violation of the right

to
inhuman or degrading
is respected;

law,

(d) the possibility exists to request refugee status and, if found
to be a refugee, to receive protection in accordance with the
Geneva Convention.

The application of the safe third country concept shall be

2.
subject to rules laid down in national legislation, including:

(a) rules requiring a connection between the person seeking
asylum and the third country concerned on the basis of
which it would be reasonable for that person to go to
that country;

(b) rules on the methodology by which the competent autho-
rities satisfy themselves that the safe third country concept
may be applied to a particular country or to a particular
applicant. Such methodology shall
include case-by-case
consideration of the safety of the country for a particular
countries
and/or
applicant
considered to be generally safe;

designation

national

of

(c) rules in accordance with international law, allowing an indi-
vidual examination of whether the third country concerned

SECTION III

Article 28

Unfounded applications

1. Without prejudice to Articles 19 and 20, Member States
may only consider an application for asylum as unfounded if
the applicant
the determining authority has established that
does not qualify for
to Directive
refugee status pursuant
2004/83/EC.

2.
In the cases mentioned in Article 23(4)(b) and in cases of
unfounded applications for asylum in which any of the circum-
stances listed in Article 23(4)(a) and (c) to (o) apply, Member
an application as manifestly
States may
unfounded, where it is defined as such in the national
legis-
lation.

also consider

Article 29

Minimum common list of third countries regarded as safe
countries of origin

1.
The Council shall, acting by a qualified majority on a
proposal from the Commission and after consultation of the
European Parliament, adopt a minimum common list of third
countries which shall be regarded by Member States as safe
countries of origin in accordance with Annex II.

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The Council may, acting by a qualified majority on a
2.
proposal from the Commission and after consultation of the
European Parliament, amend the minimum common list by
adding or
in accordance with
Annex II. The Commission shall examine any request made
by the Council or by a Member State to submit a proposal
to amend the minimum common list.

removing third countries,

than those appearing on the minimum common list, as safe
countries of origin for the purposes of examining applications
for asylum. This may include designation of part of a country as
safe where the conditions in Annex II are fulfilled in relation to
that part.

3. When making its proposal under paragraphs 1 or 2, the
Commission shall make use of information from the Member
States, its own information and, where necessary, information
from UNHCR, the Council of Europe and other relevant inter-
national organisations.

2.
By derogation from paragraph 1, Member States may
retain legislation in force on 1 December 2005 that allows
third countries, other than
for the national designation of
those appearing on the minimum common list, as
safe
countries of origin for the purposes of examining applications
for asylum where they are satisfied that persons in the third
countries concerned are generally neither subject to:

4. Where the Council requests the Commission to submit a
for removing a third country from the minimum
proposal
common list,
to
the obligation of Member States pursuant
Article 31(2) shall be suspended with regard to this third
country as of the day following the Council decision requesting
such a submission.

(a) persecution as defined in Article 9 of Directive 2004/83/EC;

nor

(b) torture or inhuman or degrading treatment or punishment.

to the Council

the Commission to
5. Where a Member State requests
removing a third
submit a proposal
country from the minimum common list, that Member State
shall notify the Council in writing of the request made to the
Commission. The obligation of this Member State pursuant to
Article 31(2) shall be suspended with regard to the third
country as of the day following the notification to the Council.

for

6.
The European Parliament
suspensions under paragraphs 4 and 5.

shall be informed of

the

3. Member States may also retain legislation in force on 1
December 2005 that allows for the national designation of part
of a country as safe, or a country or part of a country as safe
for a specified group of persons in that country, where the
conditions in paragraph 2 are fulfilled in relation to that part
or group.

4.
In assessing whether a country is a safe country of origin
in accordance with paragraphs 2 and 3, Member States shall
have regard to the legal situation, the application of the law and
third country
circumstances
the general political
concerned.

in the

7.
The suspensions under paragraphs 4 and 5 shall end after
three months, unless the Commission makes a proposal before
the end of this period, to withdraw the third country from the
minimum common list. The suspensions shall in any case end
where the Council rejects a proposal by the Commission to
withdraw the third country from the list.

The assessment of whether a country is a safe country of
5.
origin in accordance with this Article shall be based on a range
of sources of information,
including in particular information
from other Member States, the UNHCR, the Council of Europe
and other relevant international organisations.

8.
Upon request by the Council, the Commission shall report
to the European Parliament and the Council on whether the
situation of a country on the minimum common list is still in
conformity with Annex II. When presenting its report,
the
Commission may make such recommendations or proposals
as it deems appropriate.

Article 30

National designation of third countries as safe countries of
origin

1. Without prejudice to Article 29, Member States may
retain or introduce legislation that allows, in accordance with
Annex II, for the national designation of third countries other

6. Member States
shall notify to the Commission the
countries that are designated as safe countries of origin in
accordance with this Article.

Article 31

The safe country of origin concept

1.
A third country designated as a safe country of origin in
accordance with either Article 29 or 30 may, after an individual
examination of the application, be considered as a safe country
of origin for a particular applicant for asylum only if:

(a) he/she has the nationality of that country; or

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(b) he/she is a stateless person and was formerly habitually

resident in that country;

submitted any serious grounds

for
and he/she has not
considering the country not to be a safe country of origin in
his/her particular circumstances and in terms of his/her qualifi-
cation as a refugee in accordance with Directive 2004/83/EC.

2. Member States shall,
in accordance with paragraph 1,
consider the application for asylum as unfounded where the
third country is designated as safe pursuant to Article 29.

3. Member States shall
further rules and modalities for the application of
country of origin concept.

lay down in national

legislation
the safe

SECTION IV

Article 32

Subsequent application

1. Where a person who has applied for asylum in a Member
State makes further representations or a subsequent application
in the same Member State, that Member State may examine
these further representations or the elements of the subsequent
application in the framework of the examination of the previous
application or in the framework of the examination of the
insofar as the competent
decision under review or appeal,
authorities
the
into account
can take
elements underlying the further representations or subsequent
application within this framework.

and consider

all

2. Moreover, Member States may apply a specific procedure
as
referred to in paragraph 3, where a person makes a
subsequent application for asylum:

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

abandoned by virtue of Articles 19 or 20;

(b) after a decision has been taken on the previous application.
Member States may also decide to apply this procedure only
after a final decision has been taken.

the previous application or after

3.
A subsequent application for asylum shall be subject first
to a preliminary examination as to whether, after the with-
the decision
drawal of
referred to in paragraph 2(b) of this Article on this application
has been reached, new elements or findings relating to the
examination of whether he/she qualifies as a refugee by virtue
of Directive 2004/83/EC have arisen or have been presented by
the applicant.

are presented by the applicant which significantly add to the
likelihood of the applicant qualifying as a refugee by virtue of
Directive 2004/83/EC, the application shall be further examined
in conformity with Chapter II.

5. Member States may,
legis-
lation, further examine a subsequent application where there
are other reasons why a procedure has to be re-opened.

in accordance with national

6. Member States may decide to further examine the appli-
cation only if the applicant concerned was, through no fault of
his/her own, incapable of asserting the situations set forth in
paragraphs 3, 4 and 5 of this Article in the previous procedure,
in particular by exercising his/her right to an effective remedy
pursuant to Article 39.

7.
The procedure referred to in this Article may also be
applicable in the case of a dependant who lodges an application
after he/she has, in accordance with Article 6(3), consented to
have his/her case be part of an application made on his/her
behalf. In this case the preliminary examination referred to in
paragraph 3 of this Article will consist of examining whether
there are facts relating to the dependant’s situation which justify
a separate application.

Article 33

Failure to appear

Member States may retain or adopt the procedure provided for
in Article 32 in the case of an application for asylum filed at a
later date by an applicant who, either intentionally or owing to
gross negligence, fails to go to a reception centre or appear
before the competent authorities at a specified time.

Article 34

Procedural rules

1. Member States shall ensure that applicants for asylum
whose application is subject
to a preliminary examination
pursuant to Article 32 enjoy the guarantees provided for in
Article 10(1).

2. Member States may lay down in national law rules on the
preliminary examination pursuant to Article 32. Those rules
may, inter alia:

(a) oblige

the applicant

concerned to indicate

facts and

substantiate evidence which justify a new procedure;

4.
If, following the preliminary examination referred to in
paragraph 3 of this Article, new elements or findings arise or

(b) require submission of the new information by the applicant
concerned within a time-limit after he/she obtained such
information;

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

The conditions
applicants for asylum to a new procedure or result
effective annulment or severe curtailment of such access.

impossible the access of
in the

shall not

render

3. Member States shall ensure that:

(a)

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 for
this and the possibilities for seeking an appeal or review of
the decision;

(b) if one of the situations referred to in Article 32(2) applies,
the determining
the
subsequent application in conformity with the provisions
of Chapter II as soon as possible.

authority

examine

further

shall

SECTION V

Article 35

Border procedures

1. Member States may provide for procedures, in accordance
with the basic principles and guarantees of Chapter II, in order
to decide at the border or transit zones of the Member State on
applications made at such locations.

subject

However, when procedures as set out in paragraph 1 do
2.
not
to the
exist, Member States may maintain,
provisions of this Article and in accordance with the laws or
regulations in force on 1 December 2005, procedures dero-
gating from the basic principles and guarantees described in
Chapter II,
the border or in transit
zones as to whether applicants for asylum who have arrived
and made an application for asylum at such locations, may
enter their territory.

in order to decide at

The procedures referred to in paragraph 2 shall ensure in

3.
particular that the persons concerned:

(a) are allowed to remain at the border or transit zones of the

Member State, without prejudice to Article 7;

(d) are interviewed, before the competent authority takes a
decision in such procedures, in relation to their application
for asylum by persons with appropriate knowledge of the
relevant standards applicable in the field of asylum and
refugee law, as described in Articles 12, 13 and 14;

(e) can consult a legal adviser or counsellor admitted or
law, as described in

permitted as such under national
Article 15(1); and

(f) have a representative appointed in the case of unaccom-
panied minors, as described in Article 17(1), unless Article
17(2) or (3) applies.

Moreover, in case permission to enter is refused by a competent
authority, this competent authority shall state the reasons in fact
and in law why the application for asylum is considered as
unfounded or as inadmissible.

4. Member States
shall ensure that a decision in the
framework of the procedures provided for in paragraph 2 is
taken within a reasonable time. When a decision has not been
taken within four weeks,
for asylum shall be
granted entry to the territory of the Member State in order
for his/her application to be processed in accordance with the
other provisions of this Directive.

the applicant

In the event of particular types of arrivals, or arrivals
5.
involving a large number of
third country nationals or
stateless persons lodging applications for asylum at the border
or in a transit zone, which makes it practically impossible to
apply there the provisions of paragraph 1 or the specific
procedure set out in paragraphs 2 and 3, those procedures
may also be applied where and for as long as these third
country nationals or
stateless persons are accommodated
normally at locations in proximity to the border or transit zone.

SECTION VI

Article 36

The European safe third countries concept

1. Member States may provide that no, or no full, exami-
the
nation of
the asylum application and of
in his/her particular circumstances as described in
applicant
Chapter
take place in cases where a competent
II,
authority has established, on the basis of the facts, that the
applicant
seeking to enter or has entered
illegally into its territory from a safe third country according
to paragraph 2.

for asylum is

the safety of

shall

(b) are be immediately informed of their rights and obligations,

as described in Article 10(1) (a);

A third country can only be considered as a safe third

2.
country for the purposes of paragraph 1 where:

(c) have access, if necessary, to the services of an interpreter, as

described in Article 10(1)(b);

(a)

it has ratified and observes the provisions of the Geneva
Convention without any geographical limitations;

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(b) it has in place an asylum procedure prescribed by law;

CHAPTER IV

(c)

it has ratified the European Convention for the Protection of
Human Rights and Fundamental Freedoms and observes its
provisions,
including the standards relating to effective
remedies; and

(d) it has been so designated by the Council in accordance with

paragraph 3.

3.
The Council shall, acting by qualified majority on a
proposal from the Commission and after consultation of the
European Parliament, adopt or amend a common list of third
countries that shall be regarded as safe third countries for the
purposes of paragraph 1.

for

The Member States concerned shall lay down in national
4.
law the modalities
implementing the provisions of
paragraph 1 and the consequences of decisions pursuant to
those provisions in accordance with the principle of non-refoul-
ement under the Geneva Convention,
including providing for
exceptions from the application of this Article for humanitarian
or political reasons or for reasons of public international law.

PROCEDURES FOR THE WITHDRAWAL OF REFUGEE STATUS

Article 37

Withdrawal of refugee status

Member States shall ensure that an examination to withdraw
the refugee status of a particular person may commence when
new elements or findings arise indicating that there are reasons
to reconsider the validity of his/her refugee status.

Article 38

Procedural rules

1. Member States shall ensure that, where the competent
authority is considering withdrawing the refugee status of a
third country national or stateless person in accordance with
Article 14 of Directive 2004/83/EC, the person concerned shall
enjoy the following guarantees:

(a)

to be informed in writing that the competent authority is
reconsidering his or her qualification for refugee status and
the reasons for such a reconsideration; and

5. When implementing a decision solely based on this
Article, the Member States concerned shall:

(b) to be given the opportunity to submit,

in a personal
interview in accordance with Article 10(1)(b) and Articles
12, 13 and 14 or in a written statement, reasons as to why
his/her refugee status should not be withdrawn.

(a)

inform the applicant accordingly; and

In addition, Member States
framework of such a procedure:

shall ensure that within the

(b) provide him/her with a document informing the authorities
of the third country, in the language of that country, that
the application has not been examined in substance.

6. Where the safe third country does not
the
applicant for asylum, Member States shall ensure that access
to a procedure is given in accordance with the basic principles
and guarantees described in Chapter II.

re-admit

7. Member States which have designated third countries as
safe countries in accordance with national legislation in force on
1 December 2005 and on the basis of the criteria in paragraph
2(a), (b) and (c), may apply paragraph 1 to these third countries
until the Council has adopted the common list pursuant to
paragraph 3.

(c)

the competent authority is able to obtain precise and up-to-
date information from various sources, such as, where
appropriate, from the UNHCR, as to the general situation
the persons
prevailing in the countries of origin of
concerned; and

reconsidering the refugee status,

(d) where information on an individual case is collected for the
purposes of
is not
obtained from the actor(s) of persecution in a manner
that would result in such actor(s) being directly informed
of the fact that the person concerned is a refugee whose
status is under reconsideration, nor jeopardise the physical
integrity of the person and his/her dependants, or the liberty
and security of his/her family members still
living in the
country of origin.

it

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the
2. Member States shall ensure that
competent authority to withdraw the refugee status is given
in writing. The reasons in fact and in law shall be stated in
the decision and information on how to challenge the decision
shall be given in writing.

the decision of

(d) a decision refusing entry within the framework of

the

procedures provided for under Article 35(2);

(e) a decision to withdraw of

refugee status pursuant

to

Article 38.

3.
Once the competent authority has taken the decision to
withdraw the refugee status, Article 15, paragraph 2, Article 16,
paragraph 1 and Article 21 are equally applicable.

4.
By derogation to paragraphs 1, 2 and 3 of this Article,
Member States may decide that the refugee status shall lapse by
law in case of cessation in accordance with Article 11(1)(a) to
(d) of Directive 2004/83/EC or if the refugee has unequivocally
renounced his/her recognition as a refugee.

CHAPTER V

APPEALS PROCEDURES

Article 39

2. Member States shall provide for time-limits and other
necessary rules for the applicant to exercise his/her right to
an effective remedy pursuant to paragraph 1.

3. Member States shall, where appropriate, provide for rules
in accordance with their international obligations dealing with:

(a)

the question of whether the remedy pursuant to paragraph
1 shall have the effect of allowing applicants to remain in
the Member State concerned pending its outcome;

The right to an effective remedy

1. Member States shall ensure that applicants for asylum
to an effective remedy before a court or
have the right
tribunal, against the following:

(b) the possibility of legal remedy or protective measures where
the remedy pursuant to paragraph 1 does not have the
effect of allowing applicants to remain in the Member
State concerned pending its outcome. Member States may
also provide for an ex officio remedy; and

(a) a decision taken on their application for asylum, including a

decision:

(c)

the grounds for challenging a decision under Article 25(2)(c)
in accordance with the methodology applied under Article
27(2)(b) and (c).

(i)

to consider an application inadmissible pursuant
Article 25(2),

to

4. Member States may lay down time-limits for the court or
tribunal pursuant to paragraph 1 to examine the decision of the
determining authority.

(ii)

taken at the border or in the transit zones of a Member
State as described in Article 35(1),

(iii) not to conduct an examination pursuant to Article 36;

(b) a refusal to re-open the examination of an application after

its discontinuation pursuant to Articles 19 and 20;

(c) a decision not to further examine the subsequent appli-

cation pursuant to Articles 32 and 34;

5. Where an applicant has been granted a status which offers
the same rights and benefits under national and Community
law as the refugee status by virtue of Directive 2004/83/EC,
the applicant may be considered as having an effective
remedy where a court or tribunal decides that
the remedy
pursuant
inadmissible or unlikely to
succeed on the basis of insufficient interest on the part of the
applicant in maintaining the proceedings.

to paragraph 1 is

6. Member States may also lay down in national legislation
the conditions under which it can be assumed that an applicant
has implicitly withdrawn or abandoned his/her remedy pursuant
to paragraph 1, together with the rules on the procedure to be
followed.

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CHAPTER VI

GENERAL AND FINAL PROVISIONS

Article 40

Challenge by public authorities

When Member States adopt those provisions, they shall contain
a reference to this Directive or shall be accompanied by such a
reference on the occasion of
their official publication. The
methods of making such reference shall be laid down by
Member States.

This Directive does not affect the possibility for public autho-
rities of challenging the administrative and/or judicial decisions
as provided for in national legislation.

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

Article 41

Confidentiality

Member States shall ensure that authorities implementing this
Directive are bound by the confidentiality principle as defined in
national law, in relation to any information they obtain in the
course of their work.

Article 42

Report

No later than 1 December 2009, 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 the report, the Commission
shall report to the European Parliament and the Council on
the application of this Directive in the Member States at least
every two years.

Article 43

Transposition

Member States shall bring into force the laws, regulations and
administrative provisions necessary
to comply with this
Directive by 1 December 2007. Concerning Article 15,
Member States shall bring into force the laws, regulations and
administrative provisions necessary
to comply with this
Directive by 1 December 2008. They shall forthwith inform
the Commission thereof.

Article 44

Transition

Member States shall apply the laws, regulations and adminis-
in Article 43 to applications for
trative provisions set out
asylum lodged after 1 December 2007 and to procedures for
the withdrawal of refugee status started after 1 December 2007.

Article 45

Entry into force

This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.

Article 46

Addressees

This Directive is addressed to the Member States in conformity
with the Treaty establishing the European Community.

Done at Brussels, 1 December 2005.

For the Council
The President

Ashton of UPHOLLAND

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ANNEX I

Definition of ‘determining authority’

When implementing the provision of this Directive, Ireland may, insofar as the provisions of section 17(1) of the Refugee
Act 1996 (as amended) continue to apply, consider that:
— ‘determining authority’ provided for in Article 2(e) of this Directive shall, insofar as the examination of whether an
applicant should or, as the case may be, should not be declared to be a refugee is concerned, mean the Office of the
Refugee Applications Commissioner; and

— ‘decisions at first instance’ provided for in Article 2(e) of this Directive shall include recommendations of the Refugee
Applications Commissioner as to whether an applicant should or, as the case may be, should not be declared to be a
refugee.

Ireland will notify the Commission of any amendments to the provisions of section 17(1) of the Refugee Act 1996 (as
amended).

ANNEX II

Designation of safe countries of origin for the purposes of Articles 29 and 30(1)

A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law
within a democratic system and the general political circumstances, it can be shown that there is generally and consis-
tently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or
punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

In making this assessment, account shall be taken,
persecution or mistreatment by:

inter alia, of the extent to which protection is provided against

(a)

the relevant laws and regulations of the country and the manner in which they are applied;

(b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights
and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention
against Torture,
in particular the rights from which derogation cannot be made under Article 15(2) of the said
European Convention;

(c) respect of the non-refoulement principle according to the Geneva Convention;

(d) provision for a system of effective remedies against violations of these rights and freedoms.

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ANNEX III

Definition of ‘applicant’ or ‘applicant for asylum’

When implementing the provisions of this Directive Spain may, insofar as the provisions of ‘Ley 30/1992 de Régimen
jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común’ of 26 November 1992 and ‘Ley 29/1998
reguladora de la Jurisdicción Contencioso-Administrativa’ of 13 July 1998 continue to apply, consider that, for the purposes of
Chapter V, the definition of ‘applicant’ or ‘applicant for asylum’ in Article 2(c) of this Directive shall include ‘recurrente’ as
established in the abovementioned Acts.

A ‘recurrente’ shall be entitled to the same guarantees as an ‘applicant’ or an ‘applicant for asylum’ as set out in this
Directive for the purposes of exercising his/her right to an effective remedy in Chapter V.

Spain will notify the Commission of any relevant amendments to the abovementioned Act.