Commission staff working document accompanying the proposal for a Directive of the European Parliament and of the Council 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 - - Summary of the impact assessment {COM(2009) 551} {SEC(2009) 1373}
Date: 2009-10-21
Institutions: European Commission
Subjects: aid to refugees, approximation of laws, foreign national, human rights, impact study, refugee, right of asylum, stateless person

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.10.2009 
SEC(2009) 1374 final 

COMMISSION STAFF WORKING DOCUMENT 

accompanying the 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

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  

Summary of the Impact Assessment 

{COM(2009) 551} 
{SEC(2009) 1373} 

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1. 

PROBLEM DEFINITION 

Following an increase between 1996 and 2002, fuelled by conflicts in former Yugoslavia, in 
the  period  2003-2006  numbers  of  asylum  seekers  in  the  EU-27  decreased  sharply:  from 
344 800  asylum  applications  in  2003  to  197 410  in  2006  (-42.7%).  This  decreasing  trend 
stopped in 2007, as numbers of applications rose to 222 170 (+12%), mainly due to the inflow 
of Iraqi asylum seekers. In 2008 there was a further increase (+8%) compared to 2007, as the 
number of applications reached 257 375. Even so, asylum seekers represent a small fraction 
of migration flows to the EU (estimated at 1.5 -2 m immigrants per year).  

The  number  of  persons  residing  with  a  protection  status  in  the  EU  at  the  end  of  2007  was 
close to 1.4 m, amounting to approximately 7.5% of the population of legally residing third 
country nationals and to 0.3% of the total EU population in 2007. This 1.4 m also represents a 
small part of the worldwide population of refugees, estimated at 11.4 m in 2007.  

Council  Directive  2004/83/EC  (the  "Qualification  Directive")1  seeks  to  limit  the  secondary 
movements of applicants for asylum between Member States (MS) by establishing minimum 
standards  harmonising  the  criteria  for  the  identification  of  persons  in  need  of  international 
protection and the rights and benefits to be granted to these persons in all MS. 

Responses to the 2007 Green Paper, several evaluation reports, studies and consultations held 
with  stakeholders  indicate  that,  due  to  the  unanimity  requirement  for  their  adoption,  the 
minimum  standards  of  the  Directive  are  vague  and  ambiguous,  containing  "gaps"  and 
allowing  for  derogation  possibilities.  Moreover,  in  some  cases,  compromise  was  reached  at 
the level of the more "conservative" interpretation of the Geneva Convention relating to the 
status  of  refugees,  the  European  Convention  on  Human  Rights  (ECHR)  and  other  human 
rights  instruments  which  are  the  sources  of  the  international  obligations  that  MS  have  in 
common.  As  a  result,  the  Directive  does  not  guarantee  the  full  compatibility  of  national 
implementation  measures  with  these  instruments  and  allows  for  wide  divergences  amongst 
national  decision-making  practices.  Moreover,  decision-makers  have  difficulties  to  reach 
quickly robust decisions, whereas the possibility to interpret concepts in different ways results 
in  intensive  recourse  to  appeals  and  in  high  rates  of  successful  appeals  against  negative 
decisions.  Finally,  the  current  standards  of  the  Directive  are  not  adequate  to  attain  the 
objectives set by the Hague programme regarding the establishment of a uniform protection 
status and further progress with regard to the integration of third-country nationals. 

Existing  data  provide  clear  indications  of  the  divergences  both  in  recognition  rates  and 
practices  amongst  MS  and  in  terms  of  standards  of  protection  provided  by  MS;  data  also 
points  to  poor  first-instance  decision-making.  Statistical  evidence  further  suggests  that  the 
Directive  has  not  had  any  effect  on  secondary  movements:  asylum  seekers  find  certain  MS 
more "attractive" destinations than others, partly as a result of their better chances to obtain a 
status or a higher level of rights there.  

1 

Directive  of  29  April  2004  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 
and the content of the protection granted. 

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The general problems can be broken down in the following specific problems: 

•  The concepts “actors of protection”, “internal protection” and "membership of a particular 
social group" are defined vaguely, which creates a risk of denial of protection as well as a 
risk of diverse recognition practices; 

•  Existence  of  unjustified  differences  between  the  content  of  protection  for  refugees  and 

beneficiaries of subsidiary protection; 

•  The specific integration needs of beneficiaries of international protection are not met; 

•  Existence of unjustified limitations to the exercise of the right of beneficiaries of protection 

to respect for family life. 

2. 

ADDED VALUE OF EU ACTION AND RESPECT FOR THE PRINCIPLE OF SUBSIDIARITY 

Action  at  the  EU  level  can  be  expected  to  be  more  effective  than  MS  action  in  several 
respects. 

•  The objectives set by the Hague Programme regarding a uniform protection status and 
the integration of third-country nationals cannot be attained by unilateral MS action.  

•  It  is  unlikely  that  the  level  of  protection  will  be  comprehensively  raised  to  meet  the 
higher international standards as they have evolved through MS' unilateral actions. On the 
contrary,  ‘a  race  to  the  bottom’  may  occur,  since  those  MS  currently  providing  more 
generous  protection  standards  may  be  inclined  to  lower  their  standards  in  order  to  avoid 
"attracting" larger numbers of asylum seekers.  

•  Secondary  movements  and  the  uneven  distribution  of  asylum  seekers  and 
beneficiaries of protection will not be reduced. Only enhanced harmonisation at the EU 
level can reduce asylum seekers' incentive for movements in so far as they are linked to the 
divergences of national legislations and practice and the different levels of rights provided 
in different MS. 

•  Ambiguities  and  vagueness  in  the  existing  acquis  can  only  be  resolved  at  EU  level. 
Action by MS cannot lead to an overall improvement of the quality and efficiency of the 
asylum process throughout the EU. 

3. 

POLICY OBJECTIVES 

The global objective is to achieve higher standards of protection across the EU for persons in 
need of international protection.  

The specific objectives are the following:  

1. 

To  ensure  the  full  and  inclusive  application  of  the  Geneva  Convention  and  full 
respect of the ECHR and of the EU Charter of Fundamental Rights;  

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2. 

3. 

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5. 

4. 

To  approximate  the  content  of  protection  granted  to  refugees  and  beneficiaries  of 
subsidiary protection;  

To  raise  the  overall  content  of  protection  taking  into  account  the  specific  needs  of 
beneficiaries of international protection; 

To improve the efficiency of the asylum process;  

To ensure the consistent application of agreed protection standards across the EU. 

POLICY OPTIONS 

The diverse nature of the problems makes it impossible to identify one single all-embracing 
policy option. The Impact Assessment (IA) proposes thus separate policy options for each of 
the policy objectives and it sets out 2-4 legislative sub-options or 2-4 legislative and 1 non-
legislative for each of these policy options. To determine the elements that should form the 
preferred  option,  all  sub-options  are  assessed  against  the  baseline  scenario  in  terms  of 
effectiveness,  efficiency  and  coherence,  but  also  in  terms  of  their  proportionality  and  their 
social  impacts  and  impacts  on  fundamental  rights.  Given  the  level  of  complexity  of  the 
proposed  policy  options,  this  summary  is  limited  to  a  description  of  the  main  elements 
composing the preferred policy option. 

5. 

MAIN ELEMENTS OF THE PREFERRED POLICY OPTION 

The preferred policy option: 

•  Restricts  the  broad  interpretation  of  the  concepts  "actors  of  protection"  and  "internal 
protection"  in  line  with  the  standards  of  the  Geneva  Convention  and  the  ECHR,  by 
specifying  the  criteria  for  assessing  the  accessibility  and  effectiveness  of  protection  that 
should be available to the applicant. The preferred practical cooperation option foresees the 
joint mapping of the criteria used for this assessment.  

•  Ensures a more inclusive interpretation of the concept "particular social group" in line with 
the standards of the Geneva Convention, by better defining the significance to be attached 
to  aspects  arising  from  the  applicants'  gender  and  thus  enhancing  access  to  protection  in 
particular  for  women.  The  joint  mapping  of  the  interpretations  as  part  of  the  practical 
cooperation element will contribute to the approximation of decision-making. 

•  Approximates  the  rights  of  beneficiaries  of  subsidiary  protection  to  those  of  refugees  by 
removing  all  differences  currently  allowed  by  the  Directive  which  can  no  longer  be 
considered as objectively justified, regarding the duration of their residence permit; access 
to  employment  and  employment-related  education  activities;  access  to  social  welfare, 
healthcare and to integration facilities; access to benefits for their family members. 

•  Enhances  the  integration  of  beneficiaries  of  protection  taking  into  account  their  specific 
needs: It grants them enhanced access to procedures for recognition of their qualifications; 
vocational training and employment support; accommodation and integration programmes 
that take into account their specific needs. The practical cooperation foreseen would help 
MS identify and share good and cost-efficient practices. 

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•  Enhances respect for the right of beneficiaries of protection to family life: it broadens the 
definition of family members so as to address the case where a beneficiary is a minor and 
the wide range of situations where a minor might be considered dependent, while ensuring 
that  the  decisive  criterion  is  the  best  interest  of  the  child.  The  practical  cooperation 
foreseen  can  help  MS  better  define  the  criteria  for  determining  the  best  interests  of  the 
child. 

6. 

ASSESSMENT OF IMPACTS  

6.1.  Main advantages  

–  By  ensuring  that  the  standards  of  the  Directive  are  clear  and  adequate  with  a  view  to 
guarantee full compliance with international human rights and refugee law standards, the 
preferred option would attain better respect for the right to asylum and more generally 
for fundamental rights, including the principle of non-discrimination.  

–  By  reducing  room  for  uncertainty  and  administrative  error  these  amendments  would 
streamline  and  enhance  the  quality,  fairness,  effectiveness  and  credibility  of  the 
asylum process.  

–  By  enhancing  the  consistent  application  of  standards,  these  amendments  would  help 

reduce secondary movements.  

6.2. 

Potential magnitude of financial impacts 

6.2.1.  Potential costs 

Quantifying  costs  of  changes  to  the  CEAS  is  particularly  difficult.  The  size  or  profile  of 
influxes of refugees cannot be predicted from year to year and there exist no statistics on why 
certain applications have been accepted and others rejected. Protection is granted on a case-
by-case basis, as the result of the analysis of the credibility and the individual circumstances 
of each applicant. Moreover, there is no information available on the overall costs of hosting 
beneficiaries of protection or of the individual rights they are granted. It is thus impossible to 
estimate  how  many  applicants  might  actually  be  affected  by  amendments  to  the  grounds  of 
protection or to assess the effects of amendments to the rights granted to beneficiaries. Within 
the limits of these constraints, the following indications can be provided.  

The  4  MS  that  would  be  potentially  affected  by  the  amendment  to  the  notion  "actors  of 
protection"  received  in  total  in  2008  74 535  applications  whereas  the  8  MS  that  might  be 
affected  by  the  amendment  to  the  notion  "internal  protection"  received  81 575  applications. 
The 14 MS which would be affected by the amendment of the notion "particular social group" 
received in 2008 a total of 30 800 applications by women; the corresponding number in the 7 
MS  which  would  be  affected  by  the  amendment  of  the  nexus  requirement  was  14 800.  The 
introduction of exceptions to cessation would potentially affect 10 MS, which in 2008 applied 
cessation in 7 020 cases. 

Overall impacts of the approximation of the two statuses will vary: some MS (such as IE, SE 
and  UK)  will  practically  not  be  affected  at  all,  whilst  a  majority  will  need  to  eliminate  the 
various  differences  they  maintain.  The  obligation  to  provide  beneficiaries  of  subsidiary 
protection  with  unconditional  access  to  the  labour  market  would  affect  CY,  DE  and  LU, 
where  the  numbers  of  beneficiaries  of  subsidiary  protection  who  would  potentially  benefit 

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from this amendment can be estimated at 445, 1,925 and 504 respectively, thus representing a 
percentage  of  0.11%,  0.0046  %,  and  0.23%  of  the  labour  force  of  these  MS.  The 
approximation of rights regarding social welfare would affect DE, LU, LV and PT whereas 
the  approximation  regarding  healthcare  would  affect  MT;  beneficiaries  of  subsidiary 
protection  hosted  in  these  MS  for  the  period  2005-2008  were  3,375,  340,  5,  95  and  3,010 
respectively. The approximation regarding access to  integration  programmes  might  affect  at 
least 8 MS where the total population of beneficiaries of subsidiary protection for the period 
2005-2008  amounted  to  5 495  persons,  whereas  the  average  per  capita  cost  of  integration 
programmes provided by one MS amounts to EUR 682.  

The  impact  of  enhanced  access  to  procedures  for  the  recognition  of  qualifications, 
employment  support  and  integration  programmes  granted  to  beneficiaries  of  international 
protection  should  be  limited.  Beneficiaries  of  protection  aged  15-64  recognised  in  EU 
between  2005  and  2008  are  estimated  at  245 132  and  thus  represent  only  0.1%  of  the  EU 
labour force, whereas persons granted protection in the EU in the same period represent only 
1,07%  of  the  EU  population  of  third-country  nationals.  The  total  number  of  dependants  of 
persons having received protection in 2005-2008 in the 14 MS which might be affected by the 
broadening of the definition of family members is estimated at less than 18 500.  

The likely total administrative costs of the preferred option are estimated at EUR 3 094 407. 

6.2.2.  Potential savings 

–  By diminishing the impetus for asylum seekers to move, the preferred option can reduce 
asylum flows within the EU, and the costs for the implementation of the Dublin system.  

–  By  shortening  the  duration  of  the  first-instance  procedure  and  reducing  appeals,  the 
preferred option can lead to administrative and financial savings: there are indications that 
appeals can double the cost of an asylum claim whereas an estimated 110 846 appeals were 
lodged  in  2007.  It  would  also  reduce  costs  involved  in  reception  services:  on  average,  1 
reception  year  may  cost  EUR  11 000  per  person  whereas  the  average  length  of  first 
instance procedures is 6 months and of appeal procedures is 1 year.  

–  As a result of the approximation of the rights attached to the two statuses, administrative 
procedures  would  be  streamlined  and  costs  associated  with  creating  and  maintaining 
different infrastructures would be eliminated.  

–  In the longer term, investments into integration support could be offset to a certain extent 
by  the  positive  economic  and  social  effects  of  sustainable  employment  and  successful 
integration of beneficiaries (expected to occur more or less 2 years following the granting 
of protection).  

National  measures  to  implement  the  standards  of  the  proposal  are  eligible  for  co-funding 
under the European Refugee Fund a level of 50% or 75%.  

6.3. 

Social impacts and impacts on fundamental rights 

The whole CEAS is based on the full and inclusive application of the Geneva Convention, the 
obligations that flow from human rights instruments such as the ECHR, and the full respect of 
the rights enshrined in the Charter of Fundamental Rights. The preferred option ensures that 
persons  genuinely  seeking  protection  in  the  EU  are  granted  such  protection  on  the  basis  of 
high  standards  and  in  line  with  these  obligations.  In  particular,  it  enhances  the  access  of 

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asylum seekers and beneficiaries of protection (and their family members) to protection and 
justice, to social integration and to the labour market, and ensures full respect of the principle 
of non-discrimination. 

7. 

MONITORING AND EVALUATION 

The  IA  sets  out  a  number  of  indicators  that  can  be  used  to  assess  the  efficiency  and 
effectiveness of the preferred option in achieving the main policy objectives and explains the 
arrangements for their collection and evaluation in particular for the purposes of preparing the 
regular reports on the application of the Directive. Furthermore, the Asylum Support Office 
will  institutionalise  a  comprehensive  sharing  of  information  on  asylum  processing  through 
formalised  procedures  and  will  ensure  the  systematic  evaluation  of  the  additional  data 
collected.  

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