Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (Recast) {SEC(2009) 1376} {SEC(2009) 1377}
Date: 2009-10-21
Institutions: European Commission
Subjects: EU policy, approximation of laws, refugee, right of asylum

EN 

EN 

   EN 

 
 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.10.2009 
COM(2009) 554 final 

2009/0165 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT  
AND OF THE COUNCIL  

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

(Recast) 

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

EN 

   EN 

 
 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

Context of the Proposal 

1.1.  Grounds for and objectives of the proposal 

This  proposal  is  a  recasting  of  Council  Directive  2005/85/EC  of  1  December  2005  on 
minimum  standards  on  procedures  in  Member  States  for  granting  and  withdrawing  refugee 
status1 (hereafter – the Asylum Procedures Directive).  
Contributions  received  by  stakeholders  in  response  to  the  Green  Paper  consultation2  have 
pointed  to  the  proliferation  of  disparate  procedural  arrangements  at  national  level  and 
deficiencies regarding the level of procedural guarantees for asylum applicants which mainly 
result  from  the  fact  that  the  Directive  currently  allows  Member  States  a  wide  margin  of 
discretion.  Consequently,  the  Directive  lacks  the  potential  to  back  up  adequately  the 
Qualification  Directive3  and  ensure  a  rigorous  examination  of  applications  for  international 
protection in line with international and Community obligations of Member States regarding 
the principle of non-refoulement.  

As announced in the Policy Plan on Asylum4, this proposal is part of initiatives which aim to 
ensure a higher degree of harmonisation and better standards of international protection across 
the  Union.  The  envisaged  measures  are  expected  to  improve  the  coherence  between  EU 
asylum  instruments,  simplify,  streamline  and  consolidate  procedural  arrangements 
across the Union and lead to more robust determinations at first instance, thus preventing 
abuse and improving efficiency of the asylum process.  

This  proposal  is  linked  with  the  Commission's  proposal  for  a  regulation  establishing  a 
European  Asylum  Support  Office5,  which  inter  alia  aims  to  provide  practical  assistance  to 
Member States with a view to enhancing the quality of asylum decision making.  

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

1 
2 
3 

4 

5 

OJ L 326, 13.12.2005, p. 13. 
Green Paper on the future of the Common European Asylum System - COM(2007) 301. 
Council Directive 2004/83/EC 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 
(OJ L 304, 30.9.2004, p. 12). 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  Regions  on  the  'Policy  Plan  on  Asylum  an 
Integrated Approach to Protection Across the EU' of 17 June 2008 - COM(2008) 360. 
Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a  European 
Asylum Support Office - COM(2009) 66. 

EN 

2 

   EN 

 
                                                 
1.2.  General context 

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

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

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

1.3.  Consistency with other policies and objectives of the Union 

This proposal is fully in line with the Tampere European Council Conclusions of 1999 and the 
Hague Programme of 2004 in relation to the establishment of the CEAS. It also responds to 
the call of the European Pact on Immigration and Asylum, adopted by the European Council 
on  17  October  20086,  to  present  proposals  for  establishing,  in  2012  at  the  latest,  a  single 
asylum procedure comprising common guarantees.  

2. 

Consultation of Interested Parties 

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

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

•  The implementation of the Directive and possible ways to address the current gaps in the 
Community  framework  on  asylum  procedures  were  discussed  in  6  experts'  meetings 
organised  by  the  Commission  between  February  2008  and  January  2009.  These 
consultations  involved  Government  experts  (4  experts'  meetings  held  on  25.02.2008, 

6 

European Pact on Immigration and Asylum, Council document 13440/08 

EN 

3 

   EN 

 
                                                 
29.09.2008,  25.11.2008  and  12.01.2009),  NGOs  (08.01.2009),  UNHCR  and  legal 
practitioners  providing  legal  advice  to  asylum  applicants  in  national  procedures 
(17.03.2008),  and  focused  on  the  key  elements  of  the  Directive.  These  consultations 
provided the Commission with valuable information regarding the areas to be addressed in 
the present proposal. Parties consulted expressed a general consensus to achieving further 
harmonisation  of  procedural  arrangements  and  providing  applicants  for  international 
protection with adequate guarantees thus ensuring an efficient and fair examination of their 
claims, in line with the Qualification Directive. Some Member States however underlined 
the  need  to  retain  a  certain  degree  of  flexibility  regarding  the  organisation  of  asylum 
procedures  and  to  maintain  procedural  arrangements  aimed  at  preventing  abuse,  whereas 
others expressed a preference to address deficiencies of the present framework via practical 
cooperation measures rather than via a legislative intervention.  

•  An  external  study  was  conducted  on  behalf  of  the  Commission,  analysing  the  existing 

evidence and results of consultations.  

•  Further data was collected in response to several detailed questionnaires addressed by the 

Commission to all Member States and to civil society stakeholders.  

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

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

3. 

Legal Elements of the Proposal 

3.1. 

Summary of the proposed action 

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

The  proposal  aims  at  improving  both  the  efficiency  and  the  quality  of  decision  making  by 
“frontloading"  services,  advice  and  expertise  and  encouraging  MS  to  deliver,  within  a 

EN 

4 

   EN 

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

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

In this respect the proposal addresses the following issues: 

1. Consistency between different asylum instruments  

With  a  view  to  facilitating  consistent  application  of  the  asylum  acquis  and  simplifying 
applicable arrangements, the proposal provides for a single procedure, thus making it clear 
that applications should be considered in the light of both forms of international protection set 
out  in  the  Qualification  Directive.  It  further  specifies  the  rules  applicable  in  the  single 
procedure, such as a mandatory sequence of an examination of the protection needs in relation 
to  refugee  status  and  subsidiary  protection  status,  and  extends  the  present  rules  on  the 
withdrawal  of  refugee  status  to  cases  of  the  withdrawal  of  subsidiary  protection.  These 
modifications reflect a long standing objective of the Commission policy on asylum7 and aim 
at ensuring consistency with the Qualification Directive. Moreover, with a view to clarifying 
the  scope  of  the  directive  ratione  materiae,  the  proposal  makes  it  clear  that  the  procedural 
principles and guarantees set out in the Asylum Procedures Directive apply to applicants who 
are the subject to procedures pursuant to the Dublin Regulation8 in the second Member States, 
and underlines that the notion of implicit withdrawal of applications should not be an obstacle 
for applicants to re-access asylum procedures in the responsible Member State.  

2. Access to procedures  

The  proposal  provides  for  a  number  of  guarantees  aimed  at  enhancing  access  to  asylum 
procedures.  First,  it  explicitly  includes  territorial  waters  in  the  scope  of  the  Directive  and 
specifies the obligations of border guards, police and personnel of detention facilities. It also 

7 

8 

See  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"  -  COM(2004) 
503, 15.7.2004. 
Council  Regulation  (EC)  No  343/2003 of 18 February  2003  establishing  the  criteria  and  mechanisms 
for determining the Member State responsible for examining an asylum application lodged in one of the 
Member States by a third-country national (OJ L 50, 25.2.2003, p. 1). 

EN 

5 

   EN 

 
                                                 
provides  for  a  time  limit  for  completing  formalities  related  to  the  lodging  of  an  application 
and introduces guarantees aimed at enabling de facto asylum seekers to articulate their request 
for  protection  when  they  are  present  at  the  border  crossing  points  or  pre-removal  detention 
facilities. These include access to information on procedures to be followed in order to apply 
for international protection, access to organisations providing legal advice and counselling to 
asylum  seekers,  and  arrangements  aimed  at  ensuring  the  communication  between  the 
competent authorities and the person concerned.  

3. Procedural guarantees in procedures at first instance  

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

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

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

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

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

4. Procedural notions and devices  

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

EN 

6 

   EN 

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

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

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

It is also proposed to streamline the asylum process by introducing time limits for procedures 
at  first  instance.  The  envisaged  general  6  month  time  limit  accommodates  legislative 
amendments  and/or  practices  of  the  majority  of  Member  States,  consulted  in  the  process  of 
preparing  the  amendments9.  It  is  instrumental  in  improving  the  efficiency  of  examinations, 
reducing  reception  costs,  facilitating  removal  of  failed  asylum  seekers  and  ensuring  quicker 
access  to  protection  for  genuine  refugees  and  persons  in  need  of  subsidiary  protection.  The 
amendments also provide for the possibility of extending the time limit for 6 more months in 
individual  cases.  In  order  to  give  MS  sufficient  time  to  adapt  and  re-organise  their  national 
procedures in line with the proposed time limits, the proposal provides for the postponement 
of the transposition deadline with regard to these amendments for 3 years.  

Furthermore,  the  proposal  aims  to  reconsider  certain  elements  of  the  safe  country  of  origin 
concept  by  deleting  the  notion  of  a  minimum  common  list  of  safe  countries  of  origin  and 
consolidating the common objective criteria for the national designation of third countries as 
safe countries of origin. The proposed amendments should lead to more consistent application 
of the safe country of origin notion, based on common material requirements, regular reviews 
of the situation in countries designated as safe and procedural guarantees equally applied in 
all MS opted for this device. The European safe third country concept is also re-visited to the 
extent  that  the  common  list  is  no  longer  foreseen.  In  order  to  reduce  the  root  causes  of 
repeated  applications,  the  proposal  makes  it  clear  that  the  applicant  and  the  determining 

9 

For  more  detailed  information  on  national  legislation  and  practices,  see  the  Impact  Assessment, 
annexed to this proposal. 

EN 

7 

   EN 

 
                                                 
authority  should  take  all  necessary  efforts  to  establish  and  assess  the  elements  of  the  initial 
application in line with the cooperative requirement set out in Article 4(1) of the Qualification 
Directive.  The  proposal  further  consolidates  the  Directive's  provisions  dealing  with 
subsequent  applications  with  a  view  to  enabling  Member  States  to  subject  a  subsequent 
application to an admissibility test in line with the res judicata principle and to derogate from 
the right to remain in the territory in cases of multiple subsequent applications thus preventing 
abuse of asylum procedures.  

5. Access to effective remedy 

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

3.2.  Legal Basis 

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

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

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

3.3. 

Subsidiarity Principle 

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

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

EN 

8 

   EN 

 
status  and  minimum  standards  for  giving  protection  to  persons  who  otherwise  need 
international protection.  

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

3.4.  Proportionality Principle 

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

3.5. 

Impact on fundamental rights 

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

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

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

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

EN 

9 

   EN 

 
(cid:208) 2005/85/EC 
(cid:214) new 
2009/0165 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT  
AND OF THE COUNCIL  

on minimum standards on procedures in Member States for granting and withdrawing 
refugee status (cid:214) international protection  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular point (1) 
(d) (cid:214) and point (2) (a)  of the first paragraph of Article 63 thereof, 

Having regard to the proposal from the Commission10, 

Having regard to the opinion of the European Economic and Social Committee11, 

Having regard to the opinion of the Committee of the Regions12, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty13, 

Whereas: 

(1) 

A number of substantive changes are to be made to Council Directive 2005/85/EC of 1 
December  2005  on  minimum  standards  on  procedures  for  granting  and  withdrawing 
refugee status14. In the interests of clarity, that Directive should be recast. 

(cid:216) new 

10 
11 
12 
13 
14 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 326, 13.12.2005, p. 13. 

EN 

10 

   EN 

 
 
 
                                                 
(2) 

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

(cid:208) 2005/85/EC recital 1 

(cid:208) 2005/85/EC recital 2 

(3) 

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

(4) 

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

(cid:208) 2005/85/EC recital 3 

(5) 

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

(cid:208) 2005/85/EC recital 4 (adapted) 

(cid:216) new 

(6) 

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

EN 

11 

   EN 

 
 
 
 
 
 
(7) 

(8) 

(9) 

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

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

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

(cid:208) 2005/85/EC recital 5 
(cid:214) new 

(10)  The  main  objective  of  this  Directive  is  to  (cid:214) develop  further  minimum  standards  for 
procedures  in  Member  States  for  granting  and  withdrawing  international  protection 
with  a  view  to  establishing  a  common  asylum  procedure  in  the  Community  
introduce  a  minimum  framework  in  the  Community  on  procedures  for  granting  and 
withdrawing refugee status. 

(cid:208) 2005/85/EC recital 6 
(cid:214) new 

(11)  The  approximation  of  rules  on  the  procedures  for  granting  and  withdrawing 
(cid:214) international  protection   refugee  status  should  help  to  limit  the  secondary 
movements  of  applicants  for  asylum  (cid:214) international  protection   between  Member 
States, where such movement would be caused by differences in legal frameworks (cid:214) , 
and  create  equivalent  conditions  for  the  application  of  Directive  […./../EC]  [the 
Qualification Directive]in Member States . 

(12) 

It  is  in  the  very  nature  of  minimum  standards  that  Member  States  should  have  the 
power to introduce or maintain more favourable provisions for third country nationals 

(cid:208) 2005/85/EC recital 7 
(cid:214) new 

EN 

12 

   EN 

 
 
 
 
or stateless persons who ask for international protection from a Member State, where 
such  a  request  is  understood  to  be  on  the  grounds  that  the  person  concerned  is  (cid:214) in 
need  of  international  protection   a  refugee  within  the  meaning  of  (cid:214) Directive 
[…./../EC] [the Qualification Directive]  Article 1(A) of the Geneva Convention. 

(cid:208) 2005/85/EC recital 8 
(cid:214) new 

(13)  This Directive respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union.  (cid:214) In 
particular this Directive seeks to promote the application of Articles 1, 18, 19, 21, 24 
and 47 of the Charter and has to be implemented accordingly.   

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

(cid:208) 2005/85/EC recital 9  
(cid:214) new 

(cid:208) 2005/85/EC recital 10 
(cid:214) new 

(15) 

It  is  essential  that  decisions  on  all  applications  for  asylum  (cid:214) international 
protection  be taken on the basis of the facts and, in the first instance, by authorities 
whose personnel has the appropriate knowledge or receives the necessary training in 
the field of asylum and refugee matters.  

(cid:208) 2005/85/EC recital 11 
(cid:214) new 

(16) 

It  is  in  the  interest  of  both  Member  States  and  applicants  for  (cid:214) international 
protection   asylum  to  decide  as  soon  as  possible  on  applications  for  asylum  . 
(cid:214) international  protection,  without  prejudice 
to  an  adequate  and  complete 
examination . The organisation of the processing of applications for asylum should 
be left to the discretion of Member States, so that they may, in accordance with their 
national  needs,  prioritise  or  accelerate  the  processing  of  any  application,  taking  into 
account the standards in this Directive. 

EN 

13 

   EN 

 
 
 
 
 
(17)  The  notion  of  public  order  may (cid:214) inter  alia  cover  a  conviction  for  committing  a 

serious crime. 

(cid:208) 2005/85/EC recital 12  
(cid:214) new 

(cid:208) 2005/85/EC recital 13  
(cid:214) new 

(18) 

In  the  interests  of  a  correct  recognition  of  those  persons  in  need  of  protection  as 
refugees within the meaning of Article 1 of the Geneva Convention (cid:214) or as persons 
eligible  for  subsidiary  protection,  every  applicant  should,  subject  to  certain 
exceptions,  have  an  effective  access  to  procedures,  the  opportunity  to  cooperate  and 
properly  communicate  with  the  competent  authorities  so  as  to  present  the  relevant 
facts  of  his/her  case  and  sufficient  procedural  guarantees  to  pursue  his/her  case 
throughout  all  stages  of  the  procedure.  Moreover,  the  procedure  in  which  an 
application  for  asylum  (cid:214) international  protection   is  examined  should  normally 
provide  an  applicant  at  least  with  the  right  to  stay  pending  a  decision  by  the 
determining  authority,  access  to  the  services  of  an  interpreter  for  submitting  his/her 
case  if  interviewed  by  the  authorities,  the  opportunity  to  communicate  with  a 
representative  of  the  United  Nations  High  Commissioner  for  Refugees  (UNHCR) 
(cid:214) and  with  organizations  providing  advice  or  counselling  to  applicants  for 
international protection  or with any organisation working on its behalf, the right to 
appropriate notification of a decision, a motivation of that decision in fact and in law, 
the  opportunity  to  consult  a  legal  adviser  or  other  counsellor,  and  the  right  to  be 
informed of his/her legal position at decisive moments in the course of the procedure, 
in a language he/she can reasonably be supposed to understand (cid:214) and, in the case of a 
negative decision, the right to an effective remedy before a court or tribunal  .  

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

(cid:208) 2005/85/EC recital 14  

(cid:216) new 

(19)  With  a  view  to  ensuring  an  effective  access  to  the  examination  procedure,  officials 
who first come into contact with persons seeking international protection, in particular 
those  carrying  out  surveillance  of  land  or  maritime  borders  or  conducting  border 
checks,  should  receive  instructions  and  necessary  training  on  how  to  recognise  and 
deal  with  requests  for  international  protection.  They  should  be  able  to  provide  third 
country nationals or stateless persons who are present in the territory, including at the 
border, in the territorial waters or in the transit zones of the Member States, and wish 

EN 

14 

   EN 

 
 
 
 
 
to request international protection, with all relevant information as to where and how 
applications  for  international  protection  may  be  lodged.  Where  those  persons  are 
present in the territorial waters of a Member State, they should be disembarked in land 
and have their applications examined in accordance with this Directive. 

(20) 

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

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

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

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

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

(cid:208) 2005/85/EC recital 15 
(cid:214) new 

(25)  Where an applicant makes a subsequent application without presenting new evidence 
or arguments, it would be disproportionate to oblige Member States to carry out a new 
full examination procedure. In these cases, Member States should (cid:214) be able to dismiss 
an application as inadmissible in accordance with the res judicata principle  have a 
choice  of  procedure  involving  exceptions  to  the  guarantees  normally  enjoyed  by  the 
applicant. 

(26)  Many asylum applications (cid:214) for international protection  are made at the border or 
in a transit zone of a Member State prior to a decision on the entry of the applicant. 

(cid:208) 2005/85/EC recital 16 
(cid:214) new 

EN 

15 

   EN 

 
 
 
Member  States  should  be  able  to  (cid:214) provide  for  admissibility  and/or  substantive 
examination procedures which make it possible to decide on applications made at the 
border or in transit zones at those locations  keep existing procedures adapted to the 
specific situation of these applicants at the border. Common rules should be defined on 
possible  exceptions  made  in  these  circumstances  to  the  guarantees  normally  enjoyed 
by applicants. Border procedures should mainly apply to those applicants who do not 
meet the conditions for entry into the territory of the Member States. 

(cid:208) 2005/85/EC recital 17 
(cid:214) new 

(27)  A  key  consideration  for  the  well-foundedness  of  an  asylum  application  (cid:214) for 
international  protection   is  the  safety  of  the  applicant  in  his/her  country  of  origin. 
Where  a  third  country  can  be  regarded  as  a  safe  country  of  origin,  Member  States 
should be able to designate it as safe and presume its safety for a particular applicant, 
unless he/she presents serious counter-indications. 

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

(cid:208) 2005/85/EC recital 18 

(cid:208) 2005/85/EC recital 19 

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

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

(cid:208) 2005/85/EC recital 20 (adapted) 

EN 

16 

   EN 

 
 
 
 
 
(cid:208) 2005/85/EC recital 21 
(cid:214) new 

(29)  The designation of a third country as a safe country of origin for the purposes of this 
Directive cannot establish an absolute guarantee of safety for nationals of that country. 
By  its  very  nature,  the  assessment  underlying  the  designation  can  only  take  into 
account the general civil, legal and political circumstances in that country and whether 
actors  of  persecution,  torture  or  inhuman  or  degrading  treatment  or  punishment  are 
subject  to  sanction  in  practice  when  found  liable  in  the  country  concerned.  For  this 
reason, it is important that, where an applicant shows that there are serious (cid:214) valid  
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. 

(cid:208) 2005/85/EC recital 22 (adapted) 
(cid:214) new 

(30)  Member  States  should  examine  all  applications  on  the  substance,  i.e.  assess  whether 
the  applicant  in  question  qualifies  as  a  refugee ⌦ for  international  protection ⌫  in 
accordance  with  Council  Directive  2004/83/EC  of  29  April  2004  on  minimum 
standards for the qualification and status of third country nationals or stateless persons 
as refugees or as persons who otherwise need international protection and the content 
of  the  protection  granted15,  Directive  […/../EC]  [the  Qualification  Directive]  except 
where  the  present  Directive  provides  otherwise,  in  particular  where  it  can  be 
reasonably  assumed  that  another  country  would  do  the  examination  or  provide 
sufficient protection. In particular, Member States should not be obliged to assess the 
substance  of  an  asylum  application  (cid:214) for  international  protection   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. 

(cid:208) 2005/85/EC recital 23 
(cid:214) new 

(31)  Member  States  should  also  not  be  obliged  to  assess  the  substance  of  an  asylum 
application  (cid:214) for 
international  protection   where 
to  a 
(cid:214) sufficient   connection  to  a  third  country  as  defined  by  national  law,  can 
reasonably  be  expected  to  seek  protection  in  that  third  country  (cid:214),  and  there  are 
grounds  for  considering  that  the  applicant  will  be  admitted  or  re-admitted  to  that 
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 principles for the consideration or designation by 
Member States of third countries as safe should be established. 

the  applicant,  due 

15 

OJ L 304, 13.9.2004, p. 12. 

EN 

17 

   EN 

 
 
 
 
                                                 
(cid:208) 2005/85/EC recital 24 
(cid:214) new 

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

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. 

(cid:208) 2005/85/EC recital 25 

(cid:208) 2005/85/EC recital 26 
(cid:214) new 

(33)  With  respect  to  the  withdrawal  of  refugee  (cid:214) or  subsidiary  protection   status, 
that  persons  benefiting  from  (cid:214) international 
Member  States  should  ensure 
protection   refugee  status  are  duly  informed  of  a  possible  reconsideration  of  their 
status and have the opportunity to submit their point of view before the authorities can 
take  a  motivated  decision  to  withdraw  their  status.  However,  dispensing  with  these 
guarantees should be allowed where the reasons for the cessation of the refugee status 
is not related to a change of the conditions on which the recognition was based. 

(cid:208) 2005/85/EC recital 27 
(cid:214) new 

(34) 

It  reflects  a  basic  principle  of  Community  law  that  the  decisions  taken  on  an 
application for asylum (cid:214) international protection  and on the withdrawal of refugee 
(cid:214) or subsidiary protection  status are subject to an effective remedy before a court 
or tribunal within the meaning of Article 234 of the Treaty. The effectiveness of the 
remedy,  also  with  regard  to  the  examination  of  the  relevant  facts,  depends  on  the 
administrative and judicial system of each Member State seen as a whole. 

EN 

18 

   EN 

 
 
 
 
 
(35) 

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

(cid:208) 2005/85/EC recital 28 

(cid:208) 2005/85/EC recital 29 (adapted) 
(cid:214) new 

(36)  This Directive does not deal with procedures (cid:214) between Member States  governed 
by  Council  Regulation  (EC)  No  343/2003  of  18  February  2003  Regulation  (EC)  No 
[…/…  ][establishing  the  criteria  and  mechanisms  for  determining  the  Member  State 
responsible  for  examining  an  asylum  application  (cid:214) for  international  protection  
lodged  in  one  of  the  Member  States  by  a  third-country  national  (cid:214) or  a  stateless 
person  16 (The Dublin Regulation)]. 

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

(cid:216) new 

(38)  The  implementation  of  this  Directive  should  be  evaluated  at  regular  intervals  not 

exceeding two years. 

(cid:208) 2005/85/EC recital 30  

(cid:208) 2005/85/EC recital 31 
(cid:214) new 

(39)  Since  the  objective  of  this  Directive,  namely  to  establish  minimum  standards  on 
procedures 
in  Member  States  for  granting  and  withdrawing  refugee  status 
(cid:214) international protection  cannot be sufficiently attained by the Member States and 
can  therefore,  by  reason  of  the  scale  and  effects  of  the  action,  be  better  achieved  at 
Community  level,  the  Community  may  adopt  measures,  in  accordance  with  the 
principle  of subsidiarity  as  set out  in Article 5 of the Treaty.  In accordance with the 
principle  of  proportionality,  as  set  out  in  that  Article,  this  Directive  does  not  go 
beyond what is necessary in order to achieve this objective. 

16 

OJ L 50, 25.2.2003, p. 1. 

EN 

19 

   EN 

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

(cid:208) 2005/85/EC recital 32 (adapted) 

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

(cid:208) 2005/85/EC recital 33 (adapted) 

(40) 

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

(cid:208) 2005/85/EC recital 34 

(cid:216) new 

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

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

EN 

20 

   EN 

 
 
 
 
 
HAVE ADOPTED THIS DIRECTIVE: 

(cid:208) 2005/85/EC  
(cid:214) new 

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 (cid:214) international protection by virtue of 
Directive …/…/EC [the Qualification Directive] refugee status. 

Article 2 

Definitions 

(a) 

(b) 

(b) 

For the purposes of this Directive: 

"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; 

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

(cid:216) new 

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

EN 

21 

   EN 

 
 
 
(c) 

(d) 

(cid:208) 2005/85/EC 
(cid:214) new 

"applicant"  or  "applicant  for  (cid:214) international  protection   asylum"  means  a  third 
country  national  or  stateless  person  who  has  made  an  application  for  asylum 
(cid:214) international  protection   in  respect  of  which  a  final  decision  has  not  yet  been 
taken; 

(cid:216) new 

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

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

(d)(e) 

"final  decision" means  a  decision  on  whether the third country  national or stateless 
person be granted refugee (cid:214) or subsidiary protection  status by virtue of Directive 
2004/83/ECDirective […./../EC] [the Qualification Directive] and which is no longer 
subject to a remedy within the framework of Chapter V of this Directive irrespective 
of  whether  such  remedy  has  the  effect  of  allowing  applicants  to  remain  in  the 
Member States concerned pending its outcome, subject to Annex III to this Directive; 

(e)(f) 

"determining  authority"  means  any  quasi-judicial  or  administrative  body  in  a 
Member  State  responsible  for  examining  applications  for  asylum  (cid:214) international 
protection  and competent to take decisions at first instance in such cases, subject 
to Annex I; 

(f)(g) 

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

(cid:216) new 

(h) 

(i) 

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

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

EN 

22 

   EN 

 
 
 
 
 
(g)(j) 

"refugee status" means the recognition by a Member State of a third country national 
or ⌦ a ⌫ stateless person as a refugee; 

(cid:208) 2005/85/EC (adapted) 

(cid:216) new 

(k) 

(l) 

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

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

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

(h)(m)  "unaccompanied  minor"  means  a  person  below  the  age  of  18 who  arrives  in  the 
territory  of  the  Member  States  unaccompanied  by  an  adult  responsible  for  him/her 
whether by law or by custom, and for as long as he/she is not effectively taken into 
the care of such a person; it includes a minor who is left unaccompanied after he/she 
has entered the territory of the Member States ; (cid:214) a minor as defined in Article 2 (l) 
of Directive […./.../EC] [the Qualification Directive]; 

(i)(n) 

"representative" means a person acting on behalf of an organisation representing an 
unaccompanied  minor  as  legal  guardian  ,  a  person  acting  on  behalf  of  a  national 
organisation which is responsible for the care and well-being of minors or any other 
appropriate  representation  appointed  to  ensure  his/her  best  interests;  (cid:214) person 
appointed by the competent authorities to act as a legal guardian in order to assist and 
represent an unaccompanied minor with a view to ensuring the child's best interests 
and exercising legal capacity for the minor where necessary;  

(j)(o) 

"withdrawal of refugee (cid:214) international protection  status" means the decision by a 
competent  authority  to  revoke,  end  or  refuse  to  renew  the  refugee  (cid:214) or  subsidiary 
protection   status  of  a  person  in  accordance  with  Directive  2004/83/ECDirective 
[…./../EC] [the Qualification Directive] ; 

(k)(p) 

"remain  in  the  Member  State"  means  to  remain  in  the  territory,  including  at  the 
border or in transit zones, of the Member State in which the application for asylum 
(cid:214) international protection  has been made or is being examined. 

EN 

23 

   EN 

 
 
 
 
Article 3 

Scope 

1. 

2. 

3. 

This Directive shall apply to all applications for asylum (cid:214) international protection  
made in the territory, including at the border (cid:214), in the territorial waters  or in the 
transit  zones  of  the  Member  States,  and  to  the  withdrawal  of  refugee  status 
(cid:214) international protection status .  

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

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

43. 

Moreover,  Member  States  may  decide  to  apply  this  Directive  in  procedures  for 
deciding on applications for any kind of international protection (cid:214) falling outside the 
scope of Directive […./.../EC] [the Qualification Directive] . 

(cid:208) 2005/85/EC 
(cid:214) new 

Article 4 

Responsible authorities  

1. 

Member States shall designate for all procedures a determining authority which will 
be responsible for an appropriate examination of the applications in accordance with 
this  Directive,in  particular  Articles  8(2)  and  9.  (cid:214) Member  States  shall  ensure  that 
this  authority  has  sufficient  numbers  of  competent  and  specialized  personnel  at  its 
disposal  for  carrying  out  its  tasks  within  the  prescribed  time  limits.  To  that  end, 
Member  States  shall  provide  for  initial  and  follow  up  training  programmes  for  the 
personnel examining applications and taking decisions on international protection.   

2. 

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

(cid:216) new 

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

(b) gender, trauma and age awareness; 

EN 

24 

   EN 

 
 
 
(c) use of country of origin information; 

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

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

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

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

(cid:208) 2005/85/EC 

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

23. 

However,  Member  States  may  provide  that  another  authority  is  responsible  for  the 
purposes of: (cid:214) processing cases pursuant to Regulation (EC) No …/…. [the Dublin 
Regulation].  

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

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

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

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

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

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

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

EN 

25 

   EN 

 
 
 
34. 

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

5. 

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

(cid:216) new 

(cid:208) 2005/85/EC  
(cid:214) new 

Article 5 

More favourable provisions 

Member States may introduce or maintain more favourable standards on procedures 
for granting and withdrawing refugee status (cid:214) international protection , insofar as 
those standards are compatible with this Directive. 

CHAPTER II 

BASIC PRINCIPLES AND GUARANTEES 

Article 6 

Access to the procedure 

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

1. 

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

(cid:216) new 

EN 

26 

   EN 

 
 
 
 
2. 

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

23. 

34. 

5. 

6. 

(cid:208) 2005/85/EC 
(cid:214) new 

Member  States  shall  ensure  that  each  adult  having  legal  capacity  has  the  right  to 
make an application for (cid:214) international protection  asylum on his/her own behalf. 

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

Consent shall be requested at the time the application is lodged or, at the latest, when 
the  personal  interview  with  the  dependant  adult  is  conducted.(cid:214) Before  consent  is 
requested,  each  adult  among  these  persons  shall  be  informed  in  private  of  relevant 
procedural  consequences  and  of  his  or  her  right  to  make  a  separate  application  for 
international protection.  

(cid:216) new 

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

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

47. 

Member States may determine in national legislation: 

(cid:208) 2005/85/EC  
(cid:214) new 

(a) 

(b) 

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

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

17 

OJ L 348, 24.12.2008, p. 98 

EN 

27 

   EN 

 
 
 
 
                                                 
(c) 

the 

in  which 

the  cases 
lodging  of  an  application  for  asylum 
(cid:214) international protection  is deemed to constitute also the lodging of 
an  application  for  asylum  (cid:214) international  protection   for  any 
unmarried minor. 

5. 

8. 

9. 

1. 

2. 

3. 

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

(cid:216) new 

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

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

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

Article 7  

Information and counseling at border crossing points and detention facilities 

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

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

(b) detention facilities. 

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

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

EN 

28 

   EN 

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

(cid:208) 2005/85/EC 
(cid:214) new 

Article 78 

1. 

2. 

3. 

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

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

Member  States  can  make  an  exception  only  where,  in  accordance  with  Articles  32 
and 34, (cid:214) a person makes  a subsequent application (cid:214) as described in Article 35 
(8)   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  warrant18  or  otherwise,  or  to  a  third  country  (cid:214), 
with  the  exception  of  the  country  of  origin  of  the  applicant  concerned    ,  or  to 
international criminal courts or tribunals.  

(cid:216) new 

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

18 

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) 

EN 

29 

   EN 

 
 
 
                                                 
(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

Article 89 

1. 

2. 

23. 

(a) 

(b) 

Requirements for the examination of applications 

Without  prejudice  to  Article  23(4)(i),  Member  States  shall  ensure  that  applications 
for  asylum  (cid:214) international  protection   are  neither  rejected  nor  excluded  from 
examination on the sole ground that they have not been made as soon as possible. 

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

(cid:216) new 

(cid:208)2005/85/EC (adapted) 
(cid:214) new 

Member  States  shall  ensure  that  decisions  by  the  determining  authority  on 
applications  for  (cid:214) international  protection   asylum  are  taken  after  an  appropriate 
examination. To that end, Member States shall ensure that: 

applications  are  examined  and  decisions  are  taken  individually,  objectively  and 
impartially; 

precise  and  up-to-date  information  is  obtained  from  various  sources,  such  as  the 
United  Nations  High  Commissioner  for  Refugees  (UNHCR)  (cid:214) and  the  European 
Asylum  Support  Office , as to the general situation  prevailing in the  countries of 
origin  of  applicants  for  asylum  and,  where  necessary,  in  countries  through  which 
they  have  transited,  and  that  such  information  is  made  available  to  the  personnel 
responsible  for  examining  applications  and  taking  decisions(cid:214) and,  where  the 
determining authority takes it into consideration for the purpose of taking a decision, 
to the applicant and his/her legal adviser  ; 

(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;. 

EN 

30 

   EN 

 
 
 
 
(d) 

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

(cid:216) new 

34. 

45. 

1. 

2. 

(cid:208) 2005/85/EC  
(cid:214) new 

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

Member  States  may  (cid:214) shall   provide  for  rules  concerning  the  translation  of 
documents relevant for the examination of applications. 

Article 910 

Requirements for a decision by the determining authority 

Member States shall ensure that decisions on applications for asylum (cid:214) international 
protection  are given in writing. 

Member States shall also ensure that, where an application is rejected (cid:214) with regard 
to refugee status and/or subsidiary protection status , the reasons in fact and in law 
are stated in the decision and information on how to challenge a negative decision is 
given in writing. 

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

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

3. 

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

EN 

31 

   EN 

 
 
 
4. 

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

(cid:216) new 

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

Article 1011 

Guarantees for applicants for asylum (cid:214) international protection   

1. 

With  respect  to  the  procedures  provided  for  in  Chapter  III,  Member  States  shall 
ensure  that  all  applicants  for  asylum  (cid:214) applicants  for  international  protection  
enjoy the following guarantees: 

(a) 

(b) 

the  procedure  and 

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

they shall receive the services of an interpreter for submitting their case 
to  the  competent  authorities  whenever  necessary.  Member  States  shall 
consider it necessary to give these services at least when the determining 
authority  calls  upon  the  applicant  to  be  interviewed  as  referred  to  in 
Articles  12  and  13  13,  14,  (cid:214) 15,  16  and  30  and  appropriate 
communication cannot be ensured without such services. In this case and 
in  other  cases  where  the  competent  authorities  call  upon  the  applicant, 
these services shall be paid for out of public funds; 

(c) 

they  shall  not  be  denied  the  opportunity  to  communicate  with  the 
UNHCR  or  with  any  other  organisation  working  on  behalf  of  the 
UNHCR  in  the  territory  of  the  Member  State  pursuant  to  an  agreement 
with  (cid:214) providing  legal  advice  or  counselling  to  asylum  seekers  in 
accordance with national legislation of  that Member State; 

(d) 

they  shall  be  given  notice  in  reasonable  time  of  the  decision  by  the 
determining  authority  on  their  application  for  asylum  (cid:214) international 

EN 

32 

   EN 

 
 
 
protection  . If a legal adviser or other counsellor is legally representing 
the applicant, Member States may choose to give notice of the decision to 
the  applicant  for  asylum  (cid:214) international 
him/her 
protection  ; 

instead  of 

to 

(e) 

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

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

Article 1112 

Obligations of the applicants for asylum (cid:214) international protection  

(cid:214)Applicants  for  international  protection  shall  cooperate  with  the  competent 
authorities with a view to establishing their identity and other elements referred to in 
Article  4(2)  of  Directive  […./../EC]  [the  Qualification  Directive].  Member  States 
may  impose  upon  applicants  for  asylum ⌦ other ⌫  obligations  to  cooperate  with 
the competent authorities insofar as these obligations are necessary for the processing 
of the application. 

2. 

1. 

2. 

In particular, Member States may provide that: 

(a) 

(b) 

(c) 

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

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

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, (cid:214) provided the search is carried out by a person of 
the same sex ; 

(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. 

EN 

33 

   EN 

 
Article 1213 

Personal interview 

1. 

Before  a  decision  is  taken  by  the  determining  authority,  the  applicant  for  asylum 
shall  be  given  the  opportunity  of  a  personal  interview  on  his/her  application  for 
asylum (cid:214) international protection  with a person competent under national law to 
conduct  such  an  interview.  (cid:214) Interviews  on  the  substance  of  an  application  for 
international  protection  shall  always  be  conducted  by  the  personnel  of  the 
determining authority.  

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

(cid:216) new 

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

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

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

2. 

The  personal  interview  (cid:214) on  the  substance  of  the  application  may  be  omitted 
where: 

(a) 

the  determining  authority  is  able  to  take  a  positive  decision  with 
(cid:214) regard to refugee status  on the basis of evidence available; or 

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

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

3. 

The personal interview may also be omitted where  

(b) 

it  is  not  reasonably  practicable,  in  particular  where  the  competent 
authority  is  of  the  opinion  that  the  applicant  is  unfit  or  unable  to  be 
interviewed  owing  to  enduring  circumstances  beyond  his/her  control. 

EN 

34 

   EN 

 
 
 
When in doubt, (cid:214) the competent authority shall consult a medical expert 
to establish whether the condition is temporary or permanent.  Member 
States may require a medical or psychological certificate. 

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

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 
(cid:214) international protection  . 

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. 

Irrespective of Article 2024(1), Member States, when deciding on the application for 
asylum  (cid:214) international  protection ,  may  take  into  account  the  fact  that  the 
applicant failed to appear for the personal interview, unless he/she had good reasons 
for the failure to appear.  

Article 1314 

Requirements for a personal interview 

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. 

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

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

(a) 

ensure  that  the  person  who  conducts  the  interview  is  sufficiently 
competent  to  take  account  of  the  personal  or  general  circumstances 
surrounding  the  application,  including  the  applicant’s  cultural  origin, 
(cid:214) gender,  or vulnerability;, insofar as it is possible to do so; and  

43. 

54. 

65. 

1. 

2. 

3. 

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

(cid:216) new 

EN 

35 

   EN 

 
 
(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

(bc)  select  an  (cid:214) competent   interpreter  who  is  able  to  ensure  appropriate 
communication  between  the  applicant  and  the  person  who  conducts  the 
interview.  The  communication  need  not  necessarily  take  place  in  the 
language  preferred  by  the  applicant  for  asylum  if  there  is  another 
language  which  he/she  may  reasonably  be  supposed  to  understands  and 
in  which  he/she  is  able  to  communicate.(cid:214) clearly.  Wherever  possible, 
Member  States  shall  provide  an  interpreter  of  the  same  sex  if  the 
applicant so requests; 

(cid:216) new 

(d)  ensure  that  the  person  who  conducts  an  interview  on  the  substance  of  an 

application for international protection does not wear a uniform; 

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

4. 

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

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

(cid:208) 2005/85/EC 

(cid:216) new 

Article 15  

Content of a personal interview  

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

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

EN 

36 

   EN 

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

(cid:208) 2005/85/EC 

Article 14 

Status of the report of a personal interview in the procedure 

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

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

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

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

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

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

(cid:216) new 

Article 16 

Transcript and report of personal interviews 

1. 

2. 

3. 

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

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

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

EN 

37 

   EN 

 
 
 
4. 

5. 

1. 

2. 

3. 

4. 

5. 

6. 

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

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

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

Article 17 

Medico-legal reports 

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

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

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

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

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

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

EN 

38 

   EN 

 
(cid:208) 2005/85/EC  
(cid:214) new 

Article 1518 

Right to legal assistance and representation 

1. 

2. 

(cid:214) Applicants for international protection shall be given the opportunity  Member 
States shall allow applicants for asylum the opportunity, at their own cost, to consult 
in an effective manner a legal adviser or other counsellor, admitted or permitted as 
such  under  national  law,  on  matters  relating  to  their  asylum  applications  (cid:214) for 
international protection, at all stages of the procedure, including following a negative 
decision . 

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. (cid:214) To that end, Member States shall:  

(cid:216) new 

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

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

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

3. 

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

(a) 

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

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

EN 

39 

   EN 

 
 
 
 
(c)(b)  only  to  legal  advisers  or  other  counsellors  specifically  designated  by 
national  law  to  assist  and/or  represent  applicants  for  asylum  (cid:214) for 
international protection. and/or 

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

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

(cid:216) new 

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

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

(cid:208) 2005/85/EC  
(cid:214) new 

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

(cid:216) new 

4. 

5. 

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

56. 

Member States may also: 

(a) 

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

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

67. 

Member  States may demand to  be  reimbursed wholly or partially for any  expenses 
granted if and when the applicant’s financial situation has improved considerably or 

EN 

40 

   EN 

 
 
 
 
 
if  the  decision  to  grant  such  benefits  was  taken  on  the  basis  of  false  information 
supplied by the applicant. 

Article 1619 

Scope of legal assistance and representation 

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 
(cid:214) international  protection   asylum  under  the  terms  of  national  law,  shall  enjoy 
access to such ⌦ the ⌫ information in the applicant’s file (cid:214) upon which a decision 
is  or  will  be  made.   as  is  liable  to  be  examined  by  the  authorities  referred  to  in 
Chapter  V,  insofar  as  the  information  is  relevant  to  the  examination  of  the 
application. 

Member  States  may  make  an  exception  where  disclosure  of  information  or  sources 
would  jeopardise  national  security,  the  security  of  the  organisations  or  person(s) 
providing the information  or the security of the person(s) to whom the information 
relates or where the investigative interests relating to the examination of applications 
of  ⌦ for ⌫  asylum  (cid:214) international  protection   by  the  competent  authorities  of 
the  Member  States  or  the  international  relations  of  the  Member  States  would  be 
compromised. In these cases, (cid:214) Member States shall:   

(cid:216) new 

(a) 

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

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

⌦ (b) make ⌫ 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 (cid:214) international protection  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 

EN 

41 

   EN 

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

(cid:216) new 

(cid:208) 2005/85/EC 
(cid:214) new 

34. 

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

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

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

The  absence  of  a  legal  adviser  or  other  counsellor  shall  not  prevent  the  competent 
authority  from  conducting  the  personal  interview  with  the  applicant,  (cid:214) without 
prejudice to Article 21 1(b) . 

(cid:216) new 

Article 20  

Applicants with special needs  

1. 

2. 

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

In  cases  where  the  determining  authority  consider  that  an  applicant  has  been 
subjected to torture, rape or other serious forms of psychological, physical or sexual 
violence as described in Article 21 of Directive […/…/EC] [laying down minimum 
standards for the reception of asylum seekers (the Reception Conditions Directive)], 

EN 

42 

   EN 

 
 
 
 
the  applicant  shall  be  granted  sufficient  time  and  relevant  support  to  prepare  for  a 
personal interview on the substance of his/her application.  

3. 

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

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

Article 1721 

Guarantees for unaccompanied minors 

1. 

With respect to all procedures provided for in this Directive and without prejudice to 
the provisions of Articles 12 and 14 13, (cid:214) 14  and 15, Member States shall: 

(a) 

(b) 

as  soon  as  possible  take  measures  to  ensure  that  a  representative 
represents and/or assists the unaccompanied minor with respect to (cid:214) the 
lodging and  the examination of the application. (cid:214) The representative 
shall  be  impartial  and  have  the  necessary  expertise  in  the  field  of 
childcare.  This representative can also be the representative referred to 
in  Article  19  of  Directive  2003/9/EC  of  27  January  2003  laying  down 
minimum  standards  for  the  reception  of  asylum  seekers19;  Directive 
[…/…/EC] [the Reception Conditions Directive];  

ensure  that  the  representative  is  given  the  opportunity  to  inform  the 
unaccompanied  minor  about  the  meaning  and  possible  consequences  of 
the  personal 
to  prepare 
interview  and,  where  appropriate,  how 
himself/herself  for  the  personal  interview.  Member  States  shall  allow 
(cid:214) ensure that  the ⌦ a ⌫ representative (cid:214) and/or a legal advisor or 
other counsellor admitted as such under national law are  to be present 
at that interview and (cid:214) have an opportunity  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  representative  where 
unaccompanied minor: 

the 

(a)  will in all likelihood reach the age of maturity before a decision at first 

instance is taken; or 

19 

OJ L 31, 6.2.2003, p. 18 

EN 

43 

   EN 

 
 
                                                 
(b) 

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

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

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

43. 

Member States shall ensure that: 

(a) 

(b) 

If  an  unaccompanied  minor  has  a  personal  interview  on  his/her 
application  for  asylum  (cid:214) international  protection   as  referred  to  in 
Articles 12, 13 and 14,13, 14 and 15 that interview is conducted by a 
person  who  has  the  necessary  knowledge  of  the  special  needs  of 
minors; 

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. 

4. 

5. 

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

(cid:216) new 

(cid:208) 2005/85/EC 
(cid:214) new 

Member  States  may  use  medical  examinations 
the  age  of 
unaccompanied  minors  within  the  framework  of  the  examination  of  an  application 
for  asylum  (cid:214) international  protection   (cid:214),  where,  following  his/her  general 
statements  or  other  relevant  evidence,  Member  States  still  have  doubts  concerning 
his/her age .  

to  determine 

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

(cid:216) new 

EN 

44 

   EN 

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

(cid:208) 2005/85/EC 
(cid:214) new 

(a) 

unaccompanied  minors  are  informed  prior  to  the  examination  of  their 
application for asylum (cid:214) international protection  , and in a language 
which they may reasonably be supposed to understand, of the possibility 
that  their  age  may  be  determined  by  medical  examination.  This  shall 
include  information  on  the  method  of  examination  and  the  possible 
consequences  of  the  result  of  the  medical  examination  for  the 
examination of the application for asylum (cid:214) international protection  , 
as well as the consequences of refusal on the part of the unaccompanied 
minor to undergo the medical examination; 

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

(c) 

the  decision  to  reject  an  application  for  asylum  (cid:214) international 
protection  from an unaccompanied minor who refused to undergo this 
medical examination shall not be based solely on that refusal. 

The  fact  that  an  unaccompanied  minor  has  refused  to  undergo  such  a  medical 
examination shall not prevent the determining authority from taking a decision on the 
application for asylum (cid:214) international protection . 

6. 

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

(cid:216) new 

67. 

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

(cid:208) 2005/85/EC 
(cid:214) new 

Article 1822 

Detention 

1. 

Member States shall not hold a person in detention for the sole reason that he/she is 
an applicant for (cid:214) international protection  asylum. (cid:214) Grounds and conditions of 
detention  as  well  as  guarantees  available  to  detained  applicants  for  international 

EN 

45 

   EN 

 
 
 
 
2. 

1. 

2. 

1. 

protection  shall  be  in  accordance  with  Directive  […/…/EC]  [the  Reception 
Conditions Directive].  

Where  an  applicant  for  asylum  (cid:214) international  protection   is  held  in  detention, 
Member States shall ensure that there is a possibility of speedy judicial review (cid:214) in 
accordance with Directive […/…/EC] [the Reception Conditions Directive] . 

Article 1923 

Procedure in case of withdrawal of the application 

Insofar  as  Member  States  provide  for  the  possibility  of  explicit  withdrawal  of  the 
application  under  national  law,  when  an  applicant  for  asylum  explicitly  withdraws 
his/her  application  for  asylum  (cid:214) international  protection   ,  Member  States  shall 
ensure  that  the  determining  authority  takes  a  decision  to  either  discontinue  the 
examination or reject the application. 

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

Article 2024 

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

When  there  is  reasonable  cause  to  consider  that  an  applicant  for  asylum 
(cid:214) international  protection   has  implicitly  withdrawn  or  abandoned  his/her 
application for asylum (cid:214) international protection , 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. 

Member States may assume that the applicant has implicitly withdrawn or abandoned 
his/her  application  for  asylum  (cid:214) international  protection   in  particular  when  it  is 
ascertained that: 

(a) 

he/she has failed to respond to requests to provide information essential 
to  his/her  application  in  terms  of  Article  4  of  Directive  2004/83/EC 
[…./../EC]  [the  Qualification  Directive]  or  has  not  appeared  for  a 
personal interview as provided for in Articles 1213, 1314, 15 and 1416, 
unless  the  applicant  demonstrates  within  a  reasonable  time  that  his/her 
control; 
circumstances 
failure  was 

beyond 

due 

his 

to 

(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. 

EN 

46 

   EN 

 
 
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. 

3. 

This  Article  shall  be  without  prejudice  to  Regulation  (EC)  No  …/….  [the  Dublin 
Regulation]. 

(cid:216) new 

(cid:208) 2005/85/EC  
(cid:214) new 

Article 2125 

The role of UNHCR 

1. 

Member States shall allow the UNHCR: 

(a) 

(b) 

(c) 

to  have  access  to  applicants  for  (cid:214) international  protection   asylum, 
including those in detention and in airport or port transit zones; 

to  have  access  to  information  on  individual  applications  for  asylum 
(cid:214) international protection , on the course of the procedure and on the 
decisions taken, provided that the applicant for asylum agrees thereto; 

to  present  its  views,  in  the  exercise  of  its  supervisory  responsibilities 
under Article 35 of the Geneva Convention, to any competent authorities 
asylum  (cid:214) international 
regarding 
protection  at any stage of the procedure. 

applications 

individual 

for 

2. 

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

EN 

47 

   EN 

 
 
 
Article 2226 

Collection of information on individual cases 

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

(a) 

directly  disclose  information  regarding  individual  applications  for 
(cid:214) international  protection   asylum,  or  the  fact  that  an  application  has 
been made, to the alleged actor(s) of persecution (cid:214) or serious harm  of 
the applicant for asylum; 

(b)  obtain  any  information  from  the  alleged  actor(s)  of  persecution  (cid:214) or 
serious  harm   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 2327 

Examination procedure 

1. 

2. 

3. 

4. 

Member States shall process applications for asylum (cid:214) international protection  in 
an examination procedure in accordance with the basic principles and guarantees of 
Chapter II.  

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

(cid:216) new 

Member States shall ensure that a procedure is concluded within 6 months after the 
application is lodged. 

Member  States  may  extend  that  time  limit  for  a  period  not  exceeding  a  further  6 
months in individual cases involving complex issues of fact and law.  

Member  States  shall  ensure  that,  where  a  decision  cannot  be  taken  within  the  time 
period referred to in subparagraph 1 of paragraph 3, the applicant concerned shall: 

EN 

48 

   EN 

 
 
(a) be informed of the delay; and 

(b)  receive,  upon  his/her  request,  information  on  the  reasons  for  the  delay  and  the 
time-frame within which the decision on his/her application is to be expected.  

The consequences of failure to adopt a decision within the time limits provided for in 
paragraph 3 shall be determined in accordance with national law. 

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

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  obligation  for  the  Member  State 
towards  the  applicant  concerned  to  take  a  decision  within  that  time-
frame. 

35. 

Member  States  may  prioritise  or  accelerate  any  ⌦ an ⌫  examination  (cid:214) of  an 
application for international protection  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:  

(a) where the application is likely to be well founded; 

(b) where the applicant has special needs; 

(c) in other cases with the exception of applications referred to in paragraph 6.  

46. 

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

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

(a) 

the  applicant,  in  submitting  his/her  application  and  presenting  the  facts, 
has only raised issues that are not relevant or of minimal relevance to the 
examination  of  whether  he/she  qualifies  as  a  refugee  (cid:214) or  a  person 
eligible  for  subsidiary  protection   by  virtue  of  Directive  2004/83/EC 
Directive […./../EC] [the Qualification Directive] ; or 

(b) 

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

(c) 

the application for asylum is considered to be unfounded: 

EN 

49 

   EN 

 
 
 
(i)(b)  because  the  applicant  is  from  a  safe  country  of  origin  within  the 
meaning of Articles 29, 30 and 31 ⌦ this Directive ⌫ ;, 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)(c) 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)(d) 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 

(g) 

(h) 

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

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

relevant  new  elements  with 

respect 

(i) 

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

(cid:216) new 

(e) 

the application was made by an unmarried minor to whom Article 6 (7) 
(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; or 

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

(j)(f) 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 

EN 

50 

   EN 

 
 
 
 
 
(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 
fingerprints  taken  in  accordance  with  relevant  Community  and/or 
national legislation; or 

(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. 

(cid:216) new 

7. 

8. 

9. 

In cases of unfounded applications, as referred to in Article 28, in which any of the 
circumstances listed in paragraph 6 apply, Member States may reject an application 
as manifestly unfounded following an adequate and complete examination. 

Member States shall lay down reasonable time limits for the adoption of a decision in 
the procedure at first instance pursuant to paragraph 6. 

The  fact  that  an  application  for  international  protection  was  submitted  after  an 
irregular entry into the territory or at the border, including in transit zones, as well as 
the  lack  of  documents  or  use  of  forged  documents,  shall  not  per  se  entail  an 
automatic recourse to an accelerated examination procedure.  

Article 28 

Unfounded applications 

Without prejudice to Article 23, Member States shall only consider an application for 
international  protection  as  unfounded  if  the  determining  authority  has  established 
that the applicant does not qualify for international protection pursuant to Directive 
[…./../EC] [the Qualification Directive]. 

EN 

51 

   EN 

 
 
(cid:208) 2005/85/EC  
(cid:214) new 

Article 24 

Specific procedures 

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. 

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

SECTION II 

Article 2529 

Inadmissible applications 

1. 

In  addition  to  cases  in  which  an  application  is  not  examined  in  accordance  with 
Regulation  (EC)  No  343/2003Regulation  [No  …/….]  [the  Dublin  Regulation]  , 
Member  States  are  not  required  to  examine  whether  the  applicant  qualifies  as  a 
refugee  (cid:214) for  international  protection   in  accordance  with  Directive  2004/83/EC 
Directive  …./../EC  [the  Qualification  Directive]  where  an  application  is  considered 
inadmissible pursuant to this Article.  

(cid:208) 2005/85/EC  
(cid:214) new 

2. 

Member States may consider an application for asylum (cid:214) international protection  
as inadmissible (cid:214) only  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 2631; 

(c) a country which is not a Member State is considered as a safe third country 

for the applicant, pursuant to Article 2732; 

EN 

52 

   EN 

 
 
 
(d) 

(e) 

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; 

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); 

(f)(d) the applicant has lodged an identical application after a final decision; 

(g)(e) a  dependant  of  the  applicant  lodges  an  application,  after  he/she  has  in 
accordance with Article 6(3)(4) 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. 

(cid:216) new 

Article 30 

Special rules on an admissibility interview  

1. 

Member  States  shall  allow  applicants  to  present  their  views  with  regard  to  the 
application of the grounds referred to in Article 29 in their particular circumstances 
before  a  decision  to  consider  an  application  inadmissible  is  taken.  To  that  end, 
Member  States  shall  conduct  a  personal  interview  on  the  admissibility  of  the 
application. Member States may make an exception only in accordance with Article 
36 in cases of subsequent applications.  

2. 

Paragraph 1 shall be without prejudice to Article 5 of Regulation (EC) No …/…. [the 
Dublin Regulation]. 

(cid:208) 2005/85/EC  
(cid:214) new 

Article 2631 

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 (cid:214) international protection  if: 

(a) 

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

EN 

53 

   EN 

 
 
 
 
(b)  he/she  otherwise  enjoys  sufficient  protection  in  that  country,  including 

benefiting from the principle of non-refoulement; 

provided that he/she will be readmitted to that country. 

In applying the concept of first country of asylum to the particular circumstances of 
an  applicant  for  asylum  (cid:214) applicant  for  international  protection Member  States 
may take into account Article 2732 (1). 

Article 2732 

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  (cid:214) international  protection  
will  be  treated  in  accordance  with  the  following  principles  in  the  third  country 
concerned: 

(a) 

life  and  liberty  are  not  threatened  on  account  of  race,  religion, 
nationality, membership of a particular social group or political opinion; 

(b) 

there  is  no  risk  of  serious  harm  as  defined  in  [Directive  …./../EC]  [the 
Qualification Directive];  

(cid:216) new 

(cid:208) 2005/85/EC  
(cid:214) new 

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

Convention is respected; 

(c)(d)  the  prohibition  of  removal,  in  violation  of  the  right  to  freedom  from 
torture  and  cruel,  inhuman  or  degrading  treatment  as  laid  down  in 
international law, is respected; and 

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

2. 

The application of the safe third country concept shall be subject to rules laid down 
in national legislation, including: 

(a) 

rules  requiring  a  connection  between  the  person  seeking  asylum 
(cid:214) international  protection   and  the  third  country  concerned  on  the 
basis  of  which  it  would  be  reasonable  for  that  person  to  go  to  that 
country; 

EN 

54 

   EN 

 
 
 
(b) 

(c) 

rules  on  the  methodology  by  which  the  competent  authorities  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 applicant and/or national designation of countries considered to 
be generally safe; 

rules  in  accordance  with  international  law,  allowing  an  individual 
examination  of  whether  the  third  country  concerned  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  (cid:214) on  the  grounds  that  the  third  country  is  not 
safe  in  his/her  particular  circumstances.  The  applicant  shall  also  be 
allowed to challenge the existence of a connection between him/her and 
the third country in accordance with point (a) . 

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. 

5. 

Where  the  third  country  does  not  permit  the  applicant  for  asylum  (cid:214) applicant  for 
international  protection  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. 

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

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 determining authority has established that 
the applicant does not qualify for refugee status pursuant to Directive 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 circumstances listed in Article 23(4)(a) and (c) to (o) 
apply,  Member  States  may  also  consider  an  application  as  manifestly  unfounded, 
where it is defined as such in the national legislation. 

EN 

Article 29 

55 

   EN 

 
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. 

2.  The  Council  may,  acting  by  a  qualified  majority  on  a  proposal  from  the 
Commission and after consultation of the European Parliament, amend the minimum 
common  list  by  adding  or  removing  third  countries,  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. 

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 
international organisations. 

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

5.  Where  a  Member  State  requests  the  Commission  to  submit  a  proposal  to  the 
Council for removing a third 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. 

6. The European Parliament shall be informed of the suspensions under paragraphs 4 
and 5. 

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. 

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 3033 

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 than those appearing on the minimum common list, as safe countries 

EN 

56 

   EN 

 
of  origin  for  the  purposes  of  examining  applications  for  asylum (cid:214) international 
protection   This  may  include  designation  of  part  of  a  country  as  safe,  where  the 
conditions in Annex II are fulfilled in relation to that part. 

2. By derogation from paragraph 1, Member States may retain legislation in force on 
1  December  2005  that  allows  for  the  national  designation  of  third  countries,  other 
than 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: 

(a) persecution as defined in Article 9 of Directive 2004/83/EC; nor 

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

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  the  general  political  circumstances  in  the  third  country 
concerned.  

2. 

Member  States  shall  ensure  a  regular  review  of  the  situation  in  third  countries 
designated as safe in accordance with this Article. 

(cid:216) new 

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

53. 

The assessment of whether a country is a safe country of origin in accordance with 
this  Article  shall  be  based  on  a  range  of  sources  of  information,  including  in 
particular information from other Member States, (cid:214) the  European  Asylum Support 
Office, the  UNHCR,  the  Council  of  Europe  and  other  relevant  international 
organisations. 

64. 

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

Article 3134 

The safe country of origin concept 

1. 

A  third  country  designated  as  a  safe  country  of  origin  in  accordance  with⌦ this 
Directive ⌫  either  Article  29  or  30  may,  after  an  individual  examination  of  the 

EN 

57 

   EN 

 
 
 
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 

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

country; 

(c) 

and  he/she  has  not  submitted  any  serious  grounds  for  considering  the 
country  not  to  be  a  safe  country  of  origin  in  his/her  particular 
circumstances  and  in  terms  of  his/her  qualification  as  a  refugee  (cid:214) or  a 
person eligible for subsidiary protection  in accordance with Directive 
2004/83/EC[Directive …./../EC] [the Qualification Directive] . 

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. 

32. 

Member States shall lay down in national legislation further rules and modalities for 
the application of the safe country of origin concept. 

SECTION IV 

Article 3235 

Subsequent application 

1. 

2. 

Where  a  person  who  has  applied  for  asylum  (cid:214) international  protection   in  a 
Member State makes further representations or a subsequent application in the same 
that  Member  State  may  (cid:214) shall   examine 
Member  State, 
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  decision  under  review  or  appeal,  insofar  as  the  competent  authorities  can  take 
into  account and  consider all the elements underlying the further representations or 
subsequent application within this framework. 

Moreover,  (cid:214) For  the  purpose  of  taking  a  decision  on  the  admissibility  of  an 
application  for  international  protection  pursuant  to  Article  29  (2)  (d),   Member 
States may apply a specific procedure as referred to in paragraph 3 ⌦ of this Article 
⌫,  where  a  person  makes  a  subsequent  application  for  asylum  (cid:214) international 
protection  : 

(a) 

(b) 

after  his/her  previous  application  has  been  withdrawn  or  abandoned  by 
virtue of Articles 19 or 2023 ; 

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. 

EN 

58 

   EN 

 
(b) 

after a final decision has been taken on the previous application. 

(cid:216) new 

3. 

4. 

5. 

6. 

7. 

8. 

(cid:208) 2005/85/EC  
(cid:214) new 

A  subsequent  application  for  asylum  (cid:214) international  protection   shall  be  subject 
first to a preliminary examination as to whether, after the withdrawal of the previous 
application or after the decision 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  (cid:214) or  a  person  eligible  for  subsidiary 
protection   by  virtue  of  Directive  2004/83/ECDirective 
[the 
Qualification Directive] have arisen or have been presented by the applicant. 

[…./../EC] 

If, following the preliminary examination referred to in paragraph 3 of this Article, 
new elements or findings arise or are presented by the applicant which significantly 
add to the likelihood of the applicant qualifying as a refugee (cid:214) or a person eligible 
for subsidiary protection  by virtue of Directive 2004/83/EC Directive […./../EC] 
[the Qualification Directive], the application shall be further examined in conformity 
with Chapter II. 

Member  States  may,  in  accordance  with  national  legislation,  further  examine  a 
subsequent application where there are other reasons why a procedure has to be re-
opened. 

Member  States  may  decide  to  further  examine  the  application  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 
41. 

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)(4),  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. 

(cid:216) new 

If,  following  a  final  decision  to  consider  a  subsequent  application  inadmissible 
pursuant to Article 29 (2) (d) or a final decision to reject a subsequent application as 
unfounded,  the  person  concerned  lodges  a  new  application  for  international 
protection in the same Member State before a return decision has been enforced, that 
Member State may: 

EN 

59 

   EN 

 
 
 
 
(a)make  an  exception  to  the  right  to  remain  in  the  territory,  provided  the 
determining  authority  is  satisfied  that  a  return  decision  will  not  lead  to 
direct  or 
international  and 
in  violation  of 
Community obligations of that Member State; and/or 

indirect  refoulement 

(b)provide  that  the  application  be  subjected  to  the  admissibility  procedure  in 

accordance with this Article and Article 29; and/or 

(c)provide  that  an  examination  procedure  be  accelerated  in  accordance  with 

Article 27 (6) (f).  

In  cases  referred  to  in  points  (b)  and  (c)  of  the  first  subparagraph,  Member  States 
may  derogate  from  the  time  limits  normally  applicable  in  the  admissibility  and/or 
accelerated procedures, in accordance with national legislation.  

9. 

Where a person with regard to whom a transfer decision has to be enforced pursuant 
to Regulation (EC) […/…] [the Dublin Regulation] makes further representations or 
a  subsequent  application  in  the  transferring  Member  State,  those  representations  or 
subsequent  applications  shall  be  examined  by  the  responsible  Member  State,  as 
defined in Regulation (EC) […/…] [the Dublin Regulation], in accordance with this 
Directive. 

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

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 3436 

Procedural rules 

1. 

2. 

Member  States  shall  ensure  that  applicants  for  asylum  (cid:214) for  international 
protection  whose application is subject to a preliminary examination pursuant to 
Article 32 35 enjoy the guarantees provided for in Article 10 11 (1). 

Member States may lay down in national law rules on the preliminary examination 
pursuant to Article 32 35. Those rules may, inter alia: 

(a) 

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

EN 

60 

   EN 

 
 
(b) 

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

(c)(b) permit the preliminary examination to be conducted on the sole basis of 
written submissions without a personal interview (cid:214), with the exception 
of cases referred to in Article 35 (7) . 

The  conditions shall not  render impossible the access of applicants for asylum  to  a 
new  procedure  or  result  in  the  effective  annulment  or  severe  curtailment  of  such 
access. 

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)  35(3)  applies,  the 
determining authority shall further examine the subsequent application in 
conformity with the provisions of Chapter II as soon as possible. 

SECTION V 

Article 3537 

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: 

(a)  (cid:214) the 

admissibility 

of 

an  

applications  made 

at 

such 

locations.;⌦ and/or ⌫  

(b) 

the  substance  of  an  application  in  an  accelerated  procedure  pursuant  to 
Article 27 (6). 

(cid:216) new 

(cid:208) 2005/85/EC  
(cid:214) new 

2. However, when procedures as set out in paragraph 1 do not exist, Member States 
may  maintain,  subject  to  the  provisions  of  this  Article  and  in  accordance  with  the 
laws  or  regulations  in  force  on  1  December  2005,  procedures  derogating  from  the 

EN 

61 

   EN 

 
 
 
basic  principles  and  guarantees  described  in  Chapter  II,  in  order  to  decide  at  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. 

3.  The  procedures  referred  to  in  paragraph  2  shall  ensure  in  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; 

(b)  are  be  immediately  informed  of  their  rights  and  obligations,  as  described  in 
Article 10(1) (a); 

(c) have access, if necessary, to the services of an interpreter, as described in Article 
10(1)(b); 

(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  permitted  as  such  under 
national law, as described in Article 15(1); and 

(f)  have  a  representative  appointed  in  the  case  of  unaccompanied  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. 

Member  States  shall  ensure  that  a  decision  in  the  framework  of  the  procedures 
provided for in paragraph 21 is taken within a reasonable time. When a decision has 
not been taken within four weeks, the applicant 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. 

In  the  event  of  particular  types  of  arrivals,  or  arrivals  involving  a  large  number  of 
third  country  nationals  or  stateless  persons  lodging  applications  for  asylum 
(cid:214) international  protection   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. 

42. 

53. 

EN 

62 

   EN 

 
SECTION VI 

Article 3638 

The European safe third countries concept 

1.  Member  States  may  provide  that  no,  or  no  full,  examination  of  the  asylum 
application  and  of  the  safety  of  the  applicant  in  his/her  particular  circumstances  as 
described  in  Chapter  II,  shall  take  place  in  cases  where  a  competent  authority  has 
established,  on  the  basis  of  the  facts,  that  the  applicant  for  asylum  (cid:214) international 
protection  is seeking to enter or has entered illegally into its territory from a safe 
third country according to paragraph 2. 

2. A third country can only be considered as a safe third country for the purposes of 
paragraph 1 where: 

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

(b) it has in place an asylum procedure prescribed by law; (cid:214) and  

(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. 

43. The Member States concerned shall lay down in national law the modalities for 
implementing  the  provisions  of  paragraph  1  and  the  consequences  of  decisions 
pursuant  to  those  provisions  in  accordance  with  the  principle  of  non-refoulement 
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. 

54. When implementing a decision solely based on this Article, the Member States 
concerned 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. 

65. Where the safe third country does not re-admit 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. 

EN 

63 

   EN 

 
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. 

CHAPTER IV 

PROCEDURES FOR THE WITHDRAWAL OF REFUGEE (cid:214) INTERNATIONAL 
PROTECTION  STATUS 

Article 3739 

Withdrawal of refugee (cid:214) international protection  status 

Member  States  shall  ensure  that  an  examination  to  withdraw  the  refugee 
(cid:214) international protection  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 (cid:214) international protection  status. 

Article 38 40 

Procedural rules 

1. 

Member  States  shall  ensure  that,  where  the  competent  authority  is  considering 
withdrawing  the  refugee  (cid:214) international  protection   status  of  a  third  country 
national  or  stateless  person  in  accordance  with  Article  14  (cid:214) or  Article  19   of 
Directive 2004/83/ECDirective […./../EC] [the Qualification Directive] , the person 
concerned shall enjoy the following guarantees: 

(a) 

(b) 

to  be  informed  in  writing  that  the  competent  authority  is  reconsidering 
his  or  her  qualification  for  refugee  (cid:214) international  protection   status 
and the reasons for such a reconsideration; and 

to  be  given  the  opportunity  to  submit,  in  a  personal  interview  in 
accordance with Article 10 11 (1) (b) and Articles 12, 13, and14 and 15 
or 
to  why  his/her  refugee 
(cid:214) international protection  status should not be withdrawn. 

in  a  written  statement,  reasons  as 

In  addition,  Member  States  shall  ensure  that  within  the  framework  of  such  a 
procedure: 

(a) 

the  competent  authority  is  able  to  obtain  precise  and  up-to-date 
information  from  various  sources,  such  as,  where  appropriate,  from  the 
UNHCR  (cid:214) and  the  European  Asylum  Support  Office   ,  as  to  the 
general  situation  prevailing  in  the  countries  of  origin  of  the  persons 
concerned; and 

EN 

64 

   EN 

 
(b)  where information on an individual case is collected for the purposes of 
reconsidering  the  refugee  (cid:214) international  protection   status,  it  is  not 
obtained  from  the  actor(s)  of  persecution  (cid:214) or  serious  harm   in  a 
manner that would result in such actor(s) being directly informed of the 
fact that the person concerned is a refugee (cid:214) beneficiary of international 
protection   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. 

2. 

3. 

4. 

Member States shall ensure that the decision of the competent authority to withdraw 
the  refugee  (cid:214) international  protection   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. 

Once  the  competent  authority  has  taken  the  decision  to  withdraw  the  refugee 
(cid:214) international  protection   status,  Article  1518,  paragraph  2,  Article  1619, 
paragraph 1 and Article 21 25 are equally applicable. 

By  derogation  to  paragraphs  1,  2  and  3  of  this  Article,  Member  States  may  decide 
that  the  refugee  (cid:214) international  protection   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  (cid:214) beneficiary  of  international  protection   has  unequivocally  renounced 
his/her recognition as a refugee (cid:214) beneficiary of international protection . 

CHAPTER V 

APPEALS PROCEDURES 

Article 3941 

The right to an effective remedy 

1. 

Member States shall ensure that applicants for asylum (cid:214) international protection  
have the right to an effective remedy before a court or tribunal, against the following: 

(a) 

a  decision  taken  on  their  application  for  asylum  (cid:214) international 
protection , including a decision: 

(i)  to  consider  an  application  unfounded  in  relation  to  refugee  status 

and/or subsidiary protection status, 

(cid:216) new 

EN 

65 

   EN 

 
 
(cid:208) 2005/85/EC  
(cid:214) new 

(i)(ii)to consider an application inadmissible pursuant to Article 25(2) 29,  

(ii)(iii)  taken  at  the  border  or  in  the  transit  zones  of  a  Member  State  as 

described in Article 35 37 (1), 

(iii)(iv) not to conduct an examination pursuant to Article 3638; 

(b) 

(c) 

(d) 

a  refusal  to  re-open  the  examination  of  an  application  after  its 
discontinuation pursuant to Articles 19 23 and 20 24; 

a decision not to further examine the subsequent application pursuant to 
Articles 32 and 34; 

a  decision  refusing  entry  within  the  framework  of  the  procedures 
provided for under Article 35(2); 

(e)(c)a  decision  to  withdraw  of  refugee  (cid:214) international  protection status 

pursuant to Article 3840. 

(cid:216) new 

2. 

3. 

Member States shall ensure that persons recognized by the determining authority as 
eligible for subsidiary protection have the right to an effective remedy as referred to 
in paragraph 1 against a decision to consider an application unfounded in relation to 
refugee status. 

The  person  concerned  shall  be  entitled  to  the  rights  and  benefits  guaranteed  to 
beneficiaries  of  subsidiary  protection  pursuant  to  Directive  […./../EC]  [the 
Qualification Directive] pending the outcome of the appeal procedures. 

Member  States  shall  ensure  that  the  effective  remedy  referred  to  in  paragraph  1 
provides for a full examination of both facts and points of law, including an ex nunc 
examination  of  the  international  protection  needs  pursuant  to  Directive  […./../EC] 
[the Qualification Directive], at least in appeal procedures before a court or tribunal 
of first instance. 

24. 

Member  States  shall  provide  for  (cid:214) reasonable   time-limits  and  other  necessary 
rules  for  the  applicant  to  exercise  his/her  right  to  an  effective  remedy  pursuant  to 
paragraph 1. 

(cid:208) 2005/85/EC Article 4 
(cid:214) new 

EN 

66 

   EN 

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

(cid:208) 2005/85/EC Article 4 

(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;  

(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 

(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). 

(cid:216) new 

The  time  limits  shall  not  render  impossible  or  excessively  difficult  the  access  of 
applicants to an effective remedy pursuant to paragraph 1. Member States may also 
provide for an ex officio review of decisions taken pursuant to Article 37. 

Without  prejudice  to  paragraph  6,  the  remedy  provided  for  in  paragraph  1  of  this 
Article  shall  have  the  effect  of  allowing  applicants  to  remain  in  the  Member  State 
concerned pending its outcome.  

In the case of a decision taken in the accelerated procedure pursuant to Article 27 (6) 
and of a decision to consider an application inadmissible pursuant to Article 29 (2) 
(d), and where the right to remain in the Member State pending the outcome of the 
remedy  is not foreseen under  national legislation, a court or tribunal shall  have the 
power to rule whether or not the applicant may remain on the territory of the Member 
State, either upon request of the concerned applicant or acting on its own motion. 

This paragraph shall not apply to procedures referred to in Article 37. 

Member  States  shall  allow  the  applicant  to  remain  in  the  territory  pending  the 
outcome of the procedure referred to in paragraph 6.  

Paragraphs 5, 6 and 7 shall be without prejudice to Article 26 of Regulation (EC) No 
[…/…. [the Dublin Regulation]. 

5. 

6. 

7. 

8. 

49. 

Member  States  may  (cid:214) shall   lay  down  time-limits  for  the  court  or  tribunal 
pursuant to paragraph 1 to examine the decision of the determining authority.  

(cid:208) 2005/85/EC Article 4  
(cid:214) new 

EN 

67 

   EN 

 
 
 
 
510.  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  Directive  […./../EC]  [the  Qualification  Directive]  ,  the 
applicant may be considered as having an effective remedy where a court or tribunal 
decides  that  the  remedy  pursuant  to  paragraph  1  is  inadmissible  or  unlikely  to 
succeed  on  the  basis  of  insufficient  interest  on  the  part  of  the  applicant  in 
maintaining the proceedings. 

611.  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. 

CHAPTER VI 

GENERAL AND FINAL PROVISIONS 

Article 4042 

Challenge by public authorities 

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

Article 4143 

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. 

(cid:216) new 

Article 44 

Cooperation 

Member  States  shall  each  appoint  a  national  contact  point  and  communicate  its 
address to the Commission. The Commission shall communicate that information to 
the other Member States. 

EN 

68 

   EN 

 
 
Member States shall, in liaison with the Commission, take all appropriate measures 
to  establish  direct  cooperation  and  an  exchange  of  information  between  the 
competent authorities. 

(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

Article 4245 

Report 

No  later  than  1  December  2009  (cid:214) […]   ,  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 (cid:214) five years . 

Article 4346 

Transposition 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by 1 December 2007 ⌦Articles 
[…] [The Articles which have been changed as to the substance by comparison with 
the earlier Directive] by […] at the latest ⌫. 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 
⌦ communicate to ⌫ the Commission thereof ⌦ the text of those provisions and a 
correlation table between those provisions and this Directive ⌫ . 

(cid:216) new 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with Article 27 (3) by [3 years from the date of the 
transposition].  They  shall  forthwith  communicate  to  the  Commission  the  text  of 
those provisions and a correlation table between those provisions and this Directive.  

EN 

69 

   EN 

 
 
 
(cid:208) 2005/85/EC (adapted) 
(cid:214) new 

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.  ⌦ They  shall  also  include  a  statement  that  references  in  existing 
laws,  regulations  and  administrative  provisions  to  the  directive  repealed  by  this 
Directive  shall  be  construed  as  references  to  this  Directive.  Member  States  shall 
determine  how  such  reference  is  to  be  made  and  how  that  statement  is  to  be 
formulated. ⌫ 

Member  States  shall  communicate  to  the  Commission  the  text  of  the  ⌦ main ⌫ 
provisions  of  national  law  which  they  adopt  in  the  field  covered  by  this 
Directive ⌦ and a correlation table between those provisions and this Directive ⌫ . 

Article 4447 

Transitional provisions 

Member States shall apply the laws, regulations and administrative provisions set out 
in  subparagraph  1  of  Article  43  46  to  applications  for  asylum  (cid:214) international 
protection   lodged  after  1  December  2007  (cid:214) […]   and  to  procedures  for  the 
withdrawal of refugee status (cid:214) international protection  started after 1 December 
2007  (cid:214) […] .  (cid:214) Applications  submitted  before  […] and  procedures  for  the 
withdrawal  of  refugee  status  initiated  before  […] shall  be  governed  by  the  laws, 
regulations  and  administrative  provisions 
in  accordance  with  Directive 
2005/85/EC.   

(cid:216) new 

Member States shall apply the laws, regulations and administrative provisions set out 
in  subparagraph  2  of  Article  46  to  applications  for  international  protection  lodged 
after  […].  Applications  submitted  before  […] shall  be  governed  by  the  laws, 
regulations and administrative provisions in accordance with Directive 2005/85/EC.  

(cid:208)  

Article 48 

Repeal 

Directive  2005/85/EC  is  repealed  with  effect  from  [day  after  the  date  set  out  in  the  first 
subparagraph  of  Article  46  of  this  Directive],  without  prejudice  to  the  obligations  of  the 

EN 

70 

   EN 

 
 
 
 
Member States relating to the time-limit for transposition into national law of the Directive set 
out in Annex III, Part B. 

References  to  the  repealed  Directive  shall  be  construed  as  references  to  this  Directive  and 
shall be read in accordance with the correlation table in Annex IV. 

(cid:208) 2005/85/EC (adapted) 

Article 4549 

Entry into force 

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

Articles  [...]  shall  apply  from  [day  after  the  date  set  out  in  the  first  subparagraph  of  Article 
46]. 

(cid:208)  

(cid:208) 2005/85/EC (adapted) 

Article 4650 

Addressees 

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

Done at [...] 

For the European Parliament 
The President 
[…] 

For the Council 
The President 
[…] 

EN 

71 

   EN 

 
 
 
 
(cid:208) 2005/85/EC 

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) (f) 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) (f) 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). 

EN 

72 

   EN 

 
 
ANNEX II 

Designation of safe countries of origin for the purposes of Articles 29 and 30 33(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 consistently no persecution as defined in Article 9 
of  Directive  2004/83/EC  Directive  […./../EC]  [the  Qualification  Directive],  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, inter alia, of the extent to which protection 
is provided against persecution or mistreatment by: 

(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. 

EN 

73 

   EN 

 
(cid:208) 2005/85/EC 
(cid:214) new 

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. 

EN 

74 

   EN 

 
 
(cid:208)  

ANNEX III 

Part A 

Repealed Directive 
(referred to in Article 48) 

Council Directive 2005/85/EC 

(OJ L 326, 13.12.2005, p. 13) 

Part B 

Time-limit for transposition into national law 
(referred to in Article 48) 

Directive 

Time-limits for transposition 

2005/85/EC 

First deadline: 1 December 2007 

Second deadline: 1 December 2008  

EN 

75 

   EN 

 
 
(cid:208)  

ANNEX IV 

CORRELATION TABLE 

Directive 2005/85/EC 

This directive 

Article 1 

Article 2 (a) 

Article 2 (b) 

Article 2 (c) 

- 

Article 2 (d) 

Article 2 (e) 

Article 2 (f) 

- 

- 

Article 2 (g) 

- 

- 

Article 2 (h) 

Article 2 (i) 

Article 2 (j) 

Article 2 (k) 

Article 3 (1) 

Article 3 (2) 

Article 3 (3) 

Article 3 (4) 

Article 1 

Article 2 (a) 

Article 2 (b) 

Article 2 (c) 

Article 2 (d) 

Article 2 (e) 

Article 2 (f) 

Article 2 (g) 

Article 2 (h) 

Article 2 (i) 

Article 2 (j) 

Article 2 (k) 

Article 2 (l) 

Article 2 (m) 

Article 2 (n) 

Article 2 (o) 

Article 2 (p) 

Article 3 (1) 

Article 3 (2) 

- 

Article 3 (3) 

Article 4 (1) first subparagraph 

Article 4 (1) first subparagraph 

EN 

76 

   EN 

 
 
 
Article 4 (1) second subparagraph 

- 

- 

Article 4 (2)  

Article 4 (3) 

- 

Article 5 

Article 6 (1) 

- 

- 

Article 6 (2) 

Article 6 (3) 

- 

- 

Article 6 (4) 

Article 6 (5) 

- 

- 

- 

Article 7 (1) 

Article 7 (2) 

- 

Article 8 (1) 

- 

Article 8 (2) (a) 

Article 8 (2) (b) 

Article 8 (2) (c) 

- 

Article 4 (2) 

Article 4 (3) 

Article 4 (4) 

Article 4 (5) 

Article 5 

- 

Article 6 (1) 

Article 6 (2) 

Article 6 (3) 

Article 6 (4) 

Article 6 (5) 

Article 6 (6) 

Article 6 (7) 

- 

Article 6 (8) 

Article 6 (9) 

Article 7 (1) to (3) 

Article 8 (1) 

Article 8 (2) 

Article 8 (3)  

Article 9 (1) 

Article 9 (2) 

Article 9 (3) (a) 

Article 9 (3) (b) 

Article 9 (3) (c) 

Article 9 (3) (d) 

EN 

77 

   EN 

 
Article 8 (3) 

Article 8 (5) 

Article 9 (1) 

Article 9 (4) 

Article 9 (5) 

Article 10 (1) 

Article 9 (2), first subparagraph  

Article 10 (2), first subparagraph 

Article 9 (2), second subparagraph 

- 

Article 9 (3) 

- 

Article 10 

Article 11 

Article 12 (1) 

Article 12 (2) (a) 

Article 12 (2) (b) 

Article 12 (2) (c) 

Article 12 (3) 

Article 12 (4) to (6) 

Article 10 (3) 

Article 10 (4) 

Article 11 

Article 12 

Article 13 (1) 

Article13 (2) (a) 

-  

- 

Article 13 (2) (b) 

Article 13 (3) to (5) 

Article 13 (1) and (2) 

Article 14 (1) and (2) 

Article 13 (3) (a) 

- 

Article 13 (3) (b) 

- 

- 

Article 13 (4) 

Article 13 (5) 

- 

Article 14 

- 

- 

EN 

Article 14 (3) (a) 

Article 14 (3) (b) 

Article 14 (3) (c) 

Article 14 (3) (d) 

Article 14 (3) (e) 

Article 14 (4) 

- 

Article 15 

- 

Article 16 

Article 17 

78 

   EN 

 
Article 15 (1), (2) and (3) first subparagraph   Article 18 (1), (2) and (3) first subparagraph 

Article 15 (3) (a) 

Article 15 (3) (b) 

Article 15 (3) (c) 

Article 15 (3) (d) 

 Article 15 (3) second subparagraph 

- 

Article 18 (3) (a) 

Article 18 (3) (b) 

- 

- 

- 

Article 15 (4) 

- 

Article 15 (5) 

 Article 15 (6) 

Article 16 (1) 

Article 16 (2) 

- 

Article 16 (3) 

Article 16 (4) 

- 

Article 17 (1) 

Article 17 (2) (a) 

Article 17 (2) (b) 

Article 17 (2) (c) 

Article 17 (3) 

Article 17 (4) 

- 

Article 17 (5) 

- 

Article 18 (3) second subparagraph 

Article 18 (4) 

Article 18 (5) 

Article 18 (6) 

Article 18 (7) 

Article 19 (1) 

Article 19 (2) 

Article 19 (3) 

Article 19 (4) 

Article 19 (4) 

Article 20 (1) to (3) 

Article 21 (1) 

Article 21 (2) (a) 

- 

Article 21 (2) (b) 

- 

Article 21 (3) 

Article 21 (4) 

Article 21 (5) 

Article 21 (6) 

EN 

79 

   EN 

 
 
 
Article 17 (6) 

Article 21 (7) 

Article 18 

Article 19 

Article 20 

Article 22 

Article 23 

Article 24 

Article 20 (1) (a) and (b) 

Article 24 (1) (a) and (b) 

Article 20 (2) 

- 

Article 21 

Article 22 

Article 23 

Article 24 (2) 

Article 24 (3) 

Article 25 

Article 26 

Article 27 

Article 23 (1) 

Article 27 (1)  

Article 23 (2), first subparagraph  

Article 27 (2) 

Article 23 (2), second subparagraph  

- 

- 

- 

Article 23 (3) 

Article 23 (4) 

Article 23 (4) (a) 

Article 23 (4) (b) 

Article 23 (4) (c) (i) 

Article 23 (4) (c) (ii) 

Article 23 (4) (d) 

Article 23 (4) (e) 

Article 23 (4) (f) 

Article 23 (4) (g) 

EN 

Article 27 (3) 

Article 27 (4) 

Article 27 (5) 

Article 27 (6) 

Article 27 (6) (a) 

- 

Article 27 (6) (b) 

- 

Article 27 (6) (c) 

- 

Article 27 (6) (d) 

- 

80 

   EN 

 
 
 
 
 
Article 23 (4) (h) 

Article 23 (4) (i) 

Article 23 (4) (j) 

- 

- 

Article 27 (6) (f) 

Article 23 (4) (k) to (n) 

- 

Article 23 (4) (o) 

Article 27 (6) (e) 

- 

- 

- 

- 

Article 24 

Article 25 

Article 25 (1) 

Article 27 (7) 

Article 27 (8) 

Article 27 (9)  

Article 28 

- 

Article 29 

Article 29 (1)  

Article 25 (2) (a) to (c) 

Article 29 (2) (a) to (c) 

Article 25 (2) (d) and (e) 

- 

Article 25 (2) (f) and (g) 

Article 29 (2) (d) and (e) 

- 

Article 26 

Article 27 

Article 27 (1) (a) 

- 

Article 30 

Article 31 

Article 32 

Article 32 (1) (a) 

Article 32 (1) (b) 

Article 27 (1) (b) to (d) 

Article 32 (1) (c) to (e) 

Article 27 (2) to (5) 

Article 32 (2) to (5) 

Article 28 

Article 29 

Article 30 

Article 30 (2) to (4) 

- 

EN 

- 

- 

Article 33 

- 

Article 33 (2) 

81 

   EN 

 
Article 30 (5) 

Article 30 (6) 

Article 31 

Article 31 (2) 

Article 31 (3) 

Article 32 (1) to (7) 

- 

Article 33 

Article 34 

Article 33 (3) 

Article 33 (4) 

Article 34 

- 

Article 34 (2) 

Article 35 (1) to (7) 

Article 35 (8) and (9) 

- 

Article 36 

Article 34 (1) and (2) (a) 

Article 36 (1) and (2) (a) 

Article 34 (2) (b) 

Article 34 (2) (c) 

- 

Article 36 (2) (b) 

Article 34 (3) (a) and (b) 

Article 36 (3) (a) and (b) 

Article 35 (1) 

- 

Article 37 (1) (a) 

Article 37 (1) (b) 

Article 35 (2) and (3) (a) to (f) 

- 

Article 35 (4) 

Article 35 (5) 

Article 37 (2) 

Article 37 (3) 

Article 36 (1) to (2)(c) 

Article 38 (1) to 2(c) 

Article 36 (2)(d) 

Article 36(3) 

Article 36(4) 

Article 36(5) 

Article 36(6) 

Article 36(7) 

Article 37 

Article 38 

- 

- 

Article 38(3) 

Article 38(4) 

Article 38(5) 

- 

Article 39 

Article 40 

EN 

82 

   EN 

 
Article 39 

Article 39 (1) (a) 

- 

Article 39 (1) (a) (i) 

Article 39 (1) (a) (ii) 

Article 41 

Article 41 (1) (a) 

Article 41 (1) (a) (i) 

Article 41 (1) (a) (ii) 

Article 41 (1) (a) (iii) 

Article 39 (1) (a) (iii) 

- 

Article 39 (1) (b)  

Article 41 (1) (b)  

Article 39 (1) (c) and (d) 

- 

Article 39 (1) (e) 

- 

Article 39 (2) 

Article 39 (3)  

- 

Article 39 (4) 

Article 39 (5) 

Article 39 (6) 

Article 40 

Article 41 

- 

Article 42 

Article 43 

Article 44 

- 

Article 45 

Article 46 

Annex I 

Annex II 

Article 41 (1) (c) 

Article 41 (2) and (3) 

Article 41 (4) 

- 

Article 41 (5) to (8) 

Article 41 (9) 

Article 41(10) 

Article 41 (11) 

Article 42 

Article 43 

Article 44 

Article 45 

Article 46 

Article 47 

Article 48 

Article 49 

Article 50 

Annex I 

Annex II 

EN 

83 

   EN 

 
Annex III 

- 

- 

- 

Annex III 

Annex IV 

EN 

84 

   EN