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 {SEC(2009) 1373} {SEC(2009) 1374}
Date: 2009-10-21
Institutions: European Commission
Subjects: aid to refugees, approximation of laws, foreign national, human rights, refugee, right of asylum, stateless person

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.10.2009 
COM(2009) 551 final 

2009/0164 (COD) 

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 

{SEC(2009) 1373} 
{SEC(2009) 1374} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Grounds for and objectives of the proposal 

This proposal is a recasting of 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 granted1 (the "Qualification Directive" or "the Directive").  

The Hague Programme invited the Commission to conclude the evaluation of the first-phase 
legal instruments and to submit the second-phase instruments to the Council and the European 
Parliament  with  a  view  to  their  adoption  before  the  end  of  2010.  In  the  Policy  Plan  on 
Asylum2  the  Commission  proposed  the  completion  of  the  second  phase  of  the  Common 
European  Asylum  System  (CEAS)  through  raising  the  standards  of  protection  and  ensuring 
their  consistent  application  across  the  EU.  The  European  Pact  on  Immigration  and  Asylum 
("Pact"), adopted on 16 October 2008, provided further political endorsement and impetus to 
this  objective,  by  calling  for  initiatives  to  complete  the  establishment  of  the  CEAS  with  a 
view to offering a higher degree of protection. 

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  Paper3  which  aimed  at  identifying 
possible  options  for  shaping  the  second  phase  of  the  CEAS.  In  response  to  this  public 
consultation, it received 89 contributions from a wide range of relevant stakeholders, 
including a significant number of Member States and NGOs4, putting across a broad range 
of ideas on possible amendments to the Directive.  

–  The Commission has collected information about the transposition and implementation of 
the  Directive  through  its  regular  monitoring  activities  and  has  also  taken  into  account 
several  studies  produced  by  UNHCR  and  different  NGOs5  which  evaluate  the 

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OJ L 304, 30.9.2004, p. 12. 
Policy Plan on Asylum ‘An integrated approach to protection across the EU’ COM(2008) 360 
COM(2007) 301 
Available at: 
http://ec.europa.eu/justice_home/doc_centre/immigration/integration/doc/2007/handbook_2007_en.pdf 

UNHCR,  "Asylum  in  the  European  Union,  A  study  on  the  implementation  of  the  Qualification 
Directive",  November  2007;  ELENA/ECRE,  "The  impact  of  the  EU  Qualification  Directive  on 
International  protection",  October  2008;  France  Terre  d'Asile,  "Asile  La  protection  subsidiaire  en 
Europe:  Un  mosaïque  de  droits",  Les  cahiers  du  social  no  18,    Septembre  2008;  Dutch  Refugee 
Council/ECRE,  ‘Networking  on  the  Transposition  of  the  Qualification  Directive’,  December  2008, 
Nijmegen  University,  "The  Qualification  Directive:  Central 
issues,  and 
Implementation in selected MS", Karin Zwaan (ed), 2007 

themes,  Problem 

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implementation  of  the  Directive  as  well  as  a  report  carried  out,  on  behalf  of  the 
Commission, by the academic network Odysseus6.  

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

Commission to all Member States and to civil society.  

–  Moreover, an external study was conducted on behalf of the Commission, analysing the 
existing  evidence  and  results  of  consultations  and  questionnaires,  for  the  purposes  of  the 
preparation of the Impact assessment accompanying this proposal7.  

–  Additionally,  the  Commission  organised  several  experts'  meetings  to  discuss  possible 
amendments to the Directive: a meeting with judges, academics, UNHCR and a selected 
number of experts from MS on 26.06.2008; two meetings with MS (one at experts' level 
on  19.11.2008  and  another  one  in  the  context  of  the  Committee  on  Immigration  and 
Asylum on 12.12.2008) and two meetings with NGOs, on 8.1.2009 and 23.2.2009.  

On  this  basis,  the  Commission  identified  as  a  main  problem  that  the  minimum  standards 
adopted are vague and ambiguous. As a result 

they  are  insufficient  to  secure  full  compatibility  with  the  evolving  human  rights  and 

- 
refugee law standards  

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they have not achieved a sufficient level of harmonisation and 

they impact negatively on the quality and efficiency of decision-making.  

The  same  conclusion  was  drawn  with  respect  to  the  Council  Directive  2005/85/EC  on 
minimum  standards  on  procedures  in  Member  States  for  granting  and  withdrawing  refugee 
status ("Asylum Procedures Directive)8. 

This proposal is adopted together with the recast of the Asylum Procedures Directive with the 
aim  to  ensure  a  higher  degree  of  harmonisation  and  better  substantive  and  procedural 
standards  of  protection,  on  the  present  legal  basis,  towards  the  establishment  of  a  common 
asylum  procedure  and  a  uniform  status,  as  called  for  by  the  Hague  Programme.  The 
amendments are expected:  

a) to simplify decision-making procedures and lead to more robust determinations at first 
instance, thus preventing abuse;  

b)  to  streamline  procedures  for  granting  rights,  thus  improving  the  efficiency  of  the 
asylum process, and  

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Available 
http://ec.europa.eu/justice_home/doc_centre/asylum/studies/wai/doc_asylum_studies_en.htm  
GHK, Impact assessment studies on The future development of measures on the qualification and status 
of third country nationals or stateless persons as persons in need of international protection and on the 
content of the protection granted, based on Council Directive 2004/83/EC and The future development 
of  measures  on  procedures  in  MS  for  granting  and  withdrawing  refugee  status,  based  on  Council 
Directive 2005/85/EC, Multiple framework service contract JLS/2006/A1/004.  
OJ L 326, 13.12.2005, p.13  

at 

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c) to ensure coherence with the jurisprudences of the European Court of Justice (ECJ) and 
the European Court of Human Rights (ECtHR).  

More specifically: 

a) As a result of the vagueness and ambiguity inherent in several of the Directive's provisions, 
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 to subsequent 
applications, and in high rates of successful appeals against negative decisions. By reducing 
room  for  uncertainty  and  administrative  error,  by  clarifying  the  legal  concepts  and  thus 
simplifying  their  application,  the  proposal  strengthens  the  capacities  of  the  authorities  to 
deal with cases of unfounded and abusive applications and more generally to process claims 
more rapidly while reaching solid decisions, which are not frequently overturned on appeal, 
so as to avoid prolonged litigations. This will also lead to quicker access to the rights set out 
in the Directive for persons genuinely in need of protection while at the same time supporting 
Member  States'  efforts  to  rapidly  remove  from  the  territory  failed  asylum  seekers  and 
improving the credibility of the whole process. 

b)  The  proposal  seeks  to  streamline  procedures  and  reduce  administrative  costs  and 
burdens  associated  with  maintaining  two  protection  statuses.  As  a  result  of  the 
approximation  of  the  rights  granted  to  the  two  categories  of  beneficiaries  of  protection,  the 
authorities  will  no  longer  need  to  apply  distinct  conditions  and  procedures  for  issuing 
residence  permits  and  travel  documents  and  for  granting  access  to  employment,  social 
welfare, healthcare and benefits for family members and to integration programmes. Relevant 
administrative  procedures  will  be  streamlined  and  costs  associated  with  creating  and 
maintaining different infrastructures will be reduced.  

c)  Finally,  to  the  extent  that  refugee  and  human  rights  obligations  are  the  subject  of  a 
constantly evolving authoritative interpretation by competent national and international bodies 
and jurisdictions, the proposal seeks to ensure the full compatibility of the standards of the 
EU acquis with the standards developed since the adoption of the Directive by the case 
law of the ECJ and the ECtHR.  

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. 

General context 

During  the  first  phase  of  the  CEAS,  the  goal  set  by  the  Tampere  European  Council  was  to 
harmonise  Member  States'  legal  frameworks  on  the  basis  of  common  minimum  standards. 
The Qualification Directive was thus adopted with a view to define common criteria for the 
identification  of  persons  in  need  of  international  protection  and  to  ensure  that  at  least  a 
minimum level of benefits is available for these persons in all Member States.  

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This proposal aims to address the deficiencies identified during the first-phase of the asylum 
legislation  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.  

2. 

CONSULTATION OF INTERESTED PARTIES 

Based on the suggestions put forward in response to the June 2007 Green Paper and on the 
abovementioned  studies  evaluating  the  implementation  of  the  Directive,  the  Commission 
drew valuable information regarding the issues to be addressed in the amending proposal. As 
set out in detail above, the Commission also organised a series of consultations to informally 
discuss  a  broad  outline  of  the  proposed  amendments  with  Member  States,  NGOs,  UNHCR, 
refugee law judges and academics.  

Parties consulted expressed support for further harmonisation regarding both the grounds and 
the  content  of  protection.  Member  States  were  divided  on  the  question  of  broadening  the 
definition of family members and regarding an amendment of the definition of a "particular 
social  group".  There  was  general  consensus  amongst  Member  States  on  the  need  to 
approximate  the  rights  attached  to  the  refugee  status  and  subsidiary  protection,  while 
maintaining  two  separate  statuses.  In  contrast,  UNHCR  and  civil  society  favor  the 
establishment  of  a  single  uniform  status.  Stakeholders  further  stressed  the  need  for 
clarification of Article 15(c).  

The Commission is proposing a pragmatic approach, consisting in broadening the definition 
of family members to the extent necessary to ensure coherence with the Proposals amending 
the Dublin Regulation9 and the Reception Conditions Directive10. As to the definition of the 
ground  "membership  of  a  particular  social  group",  the  focus  is  on  providing  more  concrete 
guidance  on  the  weight  to  be  attached  to  gender-related  aspects.  Furthermore,  the 
amendments aim to remove all differences in the treatment of the two categories which cannot 
be considered as objectively justified, thus progressing towards uniformity of protection while 
maintaining the distinction between the two statuses.  

The  requirement  of  the  existence  of  a  "serious  and  individual  threat"  in  Article  15(c)  was 
interpreted by the ECJ in its judgment of 17 February 2009, C-465/0711. The Court defined 

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Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and 
mechanisms  for  determining  the  Member  State  responsible  for  examining  an  application  for 
international  protection  lodged  in  one  of  the  Member  States  by  a  third-country  national  or  a  stateless 
person (COM (2008) 820 final/2).  
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  laying  down  minimum 
standards for the reception of asylum seekers (COM (2008) 815 final/2)  
The Court was asked to give a preliminary ruling on whether the existence of a serious and individual 
threat to the life or person of the applicant for subsidiary protection is subject to the condition that that 

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the conditions under which such a threat can be exceptionally considered as established in the 
case of an applicant who is not specifically targeted by reason of factors particular to his/her 
personal  circumstances  and  provided  guidance  on  the  use  of  the  degree  of  indiscriminate 
violence  characterising  the  armed  conflict  as  a  criterion  for  assessing  the  existence  of  a 
serious  and  individual  threat.  In  this  context,  the  Court  examined  the  logic,  structure  and 
wording of several provisions of the Directive and found that they all coherently support and 
validate this interpretation. Moreover, it concluded that this interpretation is fully compatible 
with  the  European  Convention  for  the  Protection  of  Human  Rights  and  Fundamental 
Freedoms ("ECHR"), including the case-law of the ECtHR relating to Article 3. Therefore, in 
view of the interpretative guidance provided by this judgment and of the fact that the relevant 
provisions were found to be compatible with the ECHR, an amendment of Article 15(c) is not 
considered necessary.  

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Summary of the proposed action 

The main objective of this proposal is to ensure  

–  higher protection standards regarding both the grounds and the content of the protection 
in  line  with  international  standards,  and  in  particular  in  order  to  ensure  the  full  and 
inclusive  application  of  the  Geneva  Convention  relating  to  the  Status  of Refugees  of 
28 July 1951,  as  supplemented  by  the  New  York  Protocol  of  31 January 1967  ("Geneva 
Convention") and full respect for ECHR and the EU Charter of Fundamental Rights ("EU 
Charter"); and 

–  further harmonisation of protection standards in order to reduce secondary movements 
in so far as these are due to the diversity of national legal frameworks and decision-making 
practices and to different levels of rights provided in different Member States.  

To  this  effect,  the  proposal  addresses  a  series  of  issues  presented  below.  A  detailed 
explanation of the amendments is presented in the Annex to this Proposal. 

1. Actors of protection 

The  lack  of  clarity  of  the  concept  allows  for  wide  divergences  and  for  very  broad 
interpretations which may fall short of the standards set by the Geneva Convention on what 
constitutes  adequate  protection.  For  instance,  national  authorities  interpreting  broadly  the 
current  definition  have  considered  clans  and  tribes  as  potential  actors  of  protection    despite 
the fact that these cannot be equated to States regarding their ability to provide protection. In 
other  instances,  authorities  have  considered  non-governmental  organisations  as  actors  of 
protection  with  regard  to  women  at  risk  of  female  genital  mutilation  and  honour  killings, 
despite the fact that such organisations can only provide temporary safety or even only shelter 
to  victims  of  persecution.  In  order  to  prevent  such  protection  gaps  and  to  ensure  full 
compatibility with the Geneva Convention and enhanced quality and efficiency of decision-

applicant  adduce  evidence  that  he  is  specifically  targeted  by  reason  of  factors  particular  to  his 
circumstances and, if not, to indicate the criterion on the basis of which the existence of such a threat 
can be considered to be established.  

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making  as  well  as  interpretative  consistency  and  coherence  with  other  provisions  of  the 
Directive, the proposal clarifies the criteria for assessing the nature of the protection.  

Where the Directive establishes indicative lists, it uses terms such as "include" or "inter alia"; 
therefore,  the  absence  of  such  terms  in  Article  7  is  already  an  indication  of  the  exhaustive 
character of the list. However, for the sake of enhanced clarity, it is useful to explicitly specify 
that the list of actors of protection is exhaustive.  

It  is  also  necessary  to  specify  that  protection  should  be  effective  and  durable  and  that  non-
state actors of protection should be willing and able to enforce the rule of law. The notion of 
"willingness  to  protect"  reflects  the  requirement  already  set  in  Article  7(2)  of  the  Directive, 
according  to  which  the  applicant  should  have  access  to  protection.  The  mere  fact  that  an 
entity  is  able  to  provide  protection  is  not  sufficient;  it  should  also  be  willing  to  protect  the 
particular individual. Inversely, mere "willingness to protect" is not sufficient in the absence 
of  the  "ability  to  protect".  Moreover,  even  actors  who  are  willing  and  able  in  principle  to 
provide  protection  but  not  providing  it  in  reality  or  who  can  provide  protection  only  on  a 
transitional or temporary basis are excluded from the scope of the concept. The reference to 
the enforcement of the rule of law gives more prominence to a condition already set in Article 
7(2), namely the operation of an effective legal system.  

Finally, the condition that protection should be effective and durable ensures coherence with 
Article 11(2) of the Directive, which requires, for the purposes of cessation, that the change of 
circumstances in the country of origin should be significant and of non-temporary nature. 

2. Internal protection 

The purpose and content of international protection are not limited to non-refoulement. It is 
necessary thus to specify that it may be withheld only where protection is available in at least 
part of the country of origin. It is also necessary to ensure the compatibility of the concept of 
internal protection with Article 3 ECHR, as interpreted in a recent judgment of the ECtHR12. 
The current definition not only omits essential requirements flowing from this judgment, but 
also outright contradicts the conditions set by this Court. The proposal thus: 

- introduces verbatim the pre-conditions set out in the above judgment for the applicability of 
the  concept  of  internal  protection,  namely  that  the  applicant  should  be  able  to  travel,  gain 
admittance and settle in the alternative location  

-  deletes  the  possibility  to  apply  the  internal  flight  alternative  despite  technical  obstacles  as 
incompatible with the above requirements 

-  includes  a  reference  to  the  obligation  of  the  authorities  to  obtain  precise  and  up-to-date 
information on the general situation in the country, thus reflecting Article 8(1) of the Asylum 
Procedures Directive.  

3. The "causal link" requirement  

In many cases where the persecution emanates from non-State actors, such as militia, clans, 
criminal networks, local communities or families, the act of persecution is not committed for 
reasons related to a Geneva Convention ground but, for instance, with criminal motivations or 

12 

Judgment of 11 January 2007, Salah Sheekh v. the Netherlands, paragraph 141 

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for  private  revenge.  However,  it  often  happens  in  such  cases  that  the  State  is  unable  or 
unwilling to provide protection to the individual concerned because of a reason related to the 
Geneva  Convention  (for  example  religion,  gender,  ethnicity  etc).  To  address  potential 
protection gaps, the proposal makes explicit that the requirement of a connection between the 
acts of persecution and the reasons for persecution is also fulfilled where there is a connection 
between the acts of persecution and the absence of protection against such acts.  

4. Membership of a particular social group 

Gender as such is normally not sufficient as a criterion for the definition of a particular social 
group;  it  is  generally  used  in  combination  with  other  factors,  such  as  class,  marital  status, 
ethnic  or  clan  affiliation.  However,  women  may  form  a  particular  social  group  in  some 
societies, as evidenced by discrimination in their fundamental rights. The ambiguous wording 
of  the  last  phrase  of  Article  10(1)(d)  allows  for  protection  gaps  and  for  very  divergent 
interpretations.  In  order  to  provide  clear  and  useful  guidance  and  ensure  consistency,  the 
amendment  specifies  that  gender  should  be  given  due  consideration  for  the  purposes  of 
defining a particular social group.  

5. Cessation of refugee and subsidiary protection status 

References  to  the  exceptions  to  the  “ceased  circumstances”  cessation  clauses,  set  out  in 
Articles  1C(5)  and  1C(6)  of  the  Geneva  Convention,  have  been  omitted  from  the 
Qualification  Directive.  These  exceptions  provide  for  the  continuation  of  protection  for 
"compelling  reasons  arising  out  of  previous  persecution"  and  are  interpreted  as  reflecting  a 
general humanitarian principle. The proposal introduces these exceptions with regard both to 
refugee status and to subsidiary protection.  

6. Differentiation regarding the content of the two protection statuses  

An  amendment  expected  to  significantly  simplify  and  streamline  procedures  and  to  reduce 
administrative  costs  is  aimed  at  approximating  the  rights  granted  to  the  two  categories  of 
beneficiaries  of  protection.  When subsidiary protection was introduced,  it was  assumed that 
this  status  was  of  a  temporary  nature.  As  a  result,  the  Directive  allows  Member  States  the 
discretion  to  grant  them  a  lower  level  of  rights  in  certain  respects.  However,  practical 
experience acquired so far has shown that this initial assumption was not accurate. It is thus 
necessary  to  remove  any  limitations  of  the  rights  of  beneficiaries  of  subsidiary  protection 
which  can  no  longer  be  considered  as  necessary  and  objectively  justified.  Such  an 
approximation  of  rights  is  necessary  to  ensure  full  respect  of  the  principle  of  non-
discrimination, as interpreted in recent case law of the ECtHR13, and of the UN Convention 
on the Rights of the Child. It responds moreover to the call of the Hague Programme for the 
creation of a uniform status of protection.  

7. Content of protection 

To ensure the effective exercise of the rights formally granted to beneficiaries of protection, it 
is necessary to address the specific integration challenges they face.  

a)  Recognition  of  qualifications:  In  order  to  address  the  practical  difficulties  flowing  from 
their  inability  to  provide  documentary  evidence  and  their  limited  financial  capacities,  the 

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Judgments of 15 February 2006 in cases Niedzwiecki v Germany and Okpisz v Germany. 

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proposal  encourages  Member  States  to  adopt  alternative  appropriate  procedures  and  exempt 
them from the fees involved or grant them financial assistance, where necessary.  

b) Access to vocational training and employment: Beneficiaries of protection are often unable 
to  work  for  years  or  they  are  unfamiliar  with  labour  market  requirements  and  recruitment 
practices.  The  proposal  obliges  Member  States  to  offer  them  access  to  training  courses  to 
upgrade their skills and to counselling services offered by employment offices. 

c)  Access  to  integration  facilities:  The  effective  integration  opportunities  of  beneficiaries  of 
protection  would  be  significantly  enhanced  if  the  different  educational  and  professional 
backgrounds or other specificities of their situation were adequately taken into account in the 
integration  facilities.  The  proposal  requires  Member  States  to  develop  in  their  integration 
policies the response that they consider appropriate to meet those specific needs.  

d) Access to accommodation: Many beneficiaries of protection experience direct and indirect 
discrimination in the housing market. In line with the approach advocated in the Handbook on 
Integration14, the proposal calls on Member States to put in place policies aimed at preventing 
discrimination and achieving equality of opportunity.  

e) Possibilities for reduction of benefits in cases of "manufactured" claims: These possibilities 
are  not  conducive  to  integration  and  raise  concerns  from  the  perspective  of  the  principle  of 
non-discrimination.  Furthermore,  their  limited  use  in  practice  points  to  their  limited  added 
value. It is thus proposed to delete these possibilities. 

8. Family members 

The definition of family members is extended so as to take into account the case where the 
beneficiary of protection is a minor and the wide range of situations where a minor might be 
dependent, while ensuring that the decisive criterion is the best interest of the child.  

3.2. 

Legal basis 

This proposal amends Directive 2004/83/EC and uses the same legal base as that act, namely 
points 1(c), 2(a) and 3(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.  

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Second 
http://ec.europa.eu/justice_home/doc_centre/immigration/integration/doc/2007/handbook_2007_en.pdf, 
pp. 32-36 

available 

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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  on  the  European 
Community. These powers must be exercised in accordance with Article 5 TEC.  

Due  to  the  transnational  nature  of  the  problems related  to  asylum,  the  EU  is  well  placed  to 
propose solutions, in particular with regard to issues concerning the qualification and status of 
beneficiaries of protection. Although an important level of harmonization was reached by the 
adoption  of  the  current  Directive,  further  EU  action  is  necessary  to  attain  higher  and  more 
harmonised  standards  of  protection  and  to  take  further  steps  towards  a  uniform  status.  In 
particular, further efforts towards the achievement of a level-playing field are urgently called 
for with a view to ensuring that the Dublin System can operate in a fair and efficient manner. 
As stressed in the Policy Plan, to address the concerns regarding the operation of this system, 
it is necessary to ensure that asylum seekers falling under it have equal access to protection.  

In the Pact, the European Council highlighted its concern that considerable disparities remain 
between one Member State and another concerning the grant of protection and the forms that 
protection  takes  and  called  for  new  initiatives  to  complete  the  establishment  of  a  CEAS, 
provided  for  in  the  Hague  Programme,  and  thus  to  offer  a  higher  degree  of  protection,  as 
proposed by the Commission in its Policy Plan. 

3.4. 

Proportionality Principle 

The relevant impact assessment assessed each option envisaged as a solution 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 i) 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  ii)  obligations 
stemming from international law, in particular from the Geneva Convention, and from the UN 
Convention on the Rights of the Child. 

The  proposal  will  increase  access  to  protection  and  justice:  by  clarifying  the  grounds  for 
protection it will reduce protection gaps and diverse recognition practices and will lead to an 
overall  improvement  of  the  quality  of  the  decision-making.  It  will  also  increase  access  to 
social protection, to the labour market and overall integration, to the extent that it raises the 
level of rights of beneficiaries of subsidiary protection and more generally of beneficiaries of 
international  protection  and  their  family  members  (by  approximating  the  rights  of  the  two 
statuses, raising the overall level of rights granted to beneficiaries of protection, broadening 
the definition of family members and eliminating the possibility to reduce benefits in case of 
"manufactured"  claims).  The  approximation  of  rights  and  the  enhancement  of  the  access  to 
protection  for  women  (amendments  to  the  "nexus  requirement"  and  the  "particular  social 
group") will reinforce the principle of non-discrimination. Finally, several amendments aimed 
at  broadening  the  definition  of  family  members  and  increasing  the  rights  granted  to 
beneficiaries of protection and their family members will also have positive impacts in terms 
of enhancing the rights of the child. 

EN 

10 

   EN 

 
(cid:208) 2004/83/EC 
(cid:214) new 
2009/0164 (COD) 

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 refugees or as persons who otherwise need international protection 
(cid:214) beneficiaries of international protection  and the content of the protection granted 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
points 1(c), 2(a) and 3(a) of the first paragraph of Article 63 thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Economic and Social Committee15, 

Having regard to the opinion of the Committee of the Regions16, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty17, 

Whereas: 

(cid:216) new 

(1) 

A number of substantive changes are to be made to 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 granted18. In the interests of 
clarity, that Directive should be recast. 

15 
16 
17 
18 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 304, 30.9.2004, p. 12 

EN 

11 

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(2) 

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

(cid:208) 2004/83/EC recital 1 

(cid:208) 2004/83/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  ("Geneva  Convention"),  as  supplemented  by  the  New  York 
Protocol  of  31 January 1967  (Protocol),  thus  affirming  the  principle  of  non-
refoulement and ensuring that nobody is sent back to persecution. 

(4) 

The  Geneva  Convention  and  Protocol  provide  the  cornerstone  of  the  international 
legal regime for the protection of refugees. 

(cid:208) 2004/83/EC recital 3 

(5) 

The Tampere Conclusions provide that a Common European Asylum System should 
include,  in  the  short  term,  the  approximation  of  rules  on  the  recognition  of  refugees 
and the content of refugee status. 

(cid:208) 2004/83/EC recital 4 

(6) 

The  Tampere  Conclusions  also  provide  that  rules  regarding  refugee  status  should  be 
complemented by measures on subsidiary forms of protection, offering an appropriate 
status to any person in need of such protection. 

(cid:208) 2004/83/EC recital 5 

(cid:216) new 

(7) 

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 the end of 2010. In 

EN 

12 

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(8) 

(9) 

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. 

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  the  forms  that  protection 
takes  and  called  for  new  initiatives  to  complete  the  establishment  of  a  Common 
European Asylum System, provided for in the Hague Programme, and thus to offer a 
higher degree of protection. 

In the light of the results of the evaluations undertaken, it is appropriate, at this stage, 
to  confirm  the  principles  underlying  Directive  2004/83/EC  as  well  as  to  seek  to 
achieve a higher level of approximation of the rules on the recognition and content of 
international  protection  on  the  basis  of  higher  standards,  with  a  view  to  progressing 
towards the establishment of a uniform protection status valid throughout the Union, 
in accordance with the objective set by the Hague Programme. 

(10)  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.  

(11)  The main objective of this Directive is, on the one hand, to ensure that Member States 
apply  common  criteria  for  the  identification  of  persons  genuinely  in  need  of 
international  protection,  and,  on  the  other  hand,  to  ensure  that  a  minimum  level  of 
benefits is available for these persons in all Member States. 

(cid:208) 2004/83/EC recital 6 

(cid:208) 2004/83/EC recital 7 
(cid:214) new  

(12)  The approximation of rules on the recognition and content of refugee and subsidiary 
protection  status  should  help  to  limit  the  secondary  movements  of  applicants  for 
asylum (cid:214) international protection  between Member States, where such movement 
is purely caused by differences in legal frameworks. 

(13) 

It  is  in  the  very  nature  of  minimum  standards  that  Member  States  should  have  the 
power to introduce or maintain more favourable provisions for third country nationals 
or stateless persons who request international protection from a Member State, where 
such a request is understood to be on the grounds that the person concerned is either a 

(cid:208) 2004/83/EC recital 8 

EN 

13 

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refugee  within  the  meaning  of  Article  1(A)  of  the  Geneva  Convention,  or  a  person 
who otherwise needs international protection. 

(14)  Those  third  country  nationals  or  stateless  persons,  who  are  allowed  to  remain  in  the 
territories  of  the  Member  States  for  reasons  not  due  to  a  need  for  international 
protection but on a discretionary basis on compassionate or humanitarian grounds, fall 
outside the scope of this Directive. 

(cid:208) 2004/83/EC recital 9 

(cid:208) 2004/83/EC recital 10 (adapted) 
(cid:214) new 

(15)  This Directive respects the fundamental rights and observes the principles recognised 
in particular by the Charter of Fundamental Rights of the European Union ⌦ 19 ⌫ . 
In particular this Directive seeks to ensure full respect for human dignity and the right 
to asylum of applicants for asylum and their accompanying family members (cid:214) and to 
promote  the  application  of  Articles  1,  7,  14,  15,  16,  18,  21,  24,  34  and  35  of  the 
Charter and should be implemented accordingly .  

(16)  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) 2004/83/EC recital 11 

(17)  The "best interests of the child" should be a primary consideration of Member States 
when  implementing  this  Directive  (cid:214) ,  in  line  with  the  1989  United  Nations 
Convention on the Rights of the Child . 

(cid:208) 2004/83/EC recital 12 
(cid:214) new 

(18) 

It  is  necessary  to  broaden  the  notion  of  family  members,  taking  into  account  the 
different particular circumstances of dependency and the special attention to be paid to 
best interests of the child.  

(cid:216) new  

19 

OJ C 364, 18.12.2000, p. 1 

EN 

14 

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(19)  This  Directive  is  without  prejudice  to  the  Protocol  on  asylum  for  nationals  of 
Member States  of  the  European  Union  as  annexed  to  the  Treaty  Establishing  the 
European Community. 

(cid:208) 2004/83/EC recital 13 

(20)  The recognition of refugee status is a declaratory act. 

(cid:208) 2004/83/EC recital 14 

(21)  Consultations with the United Nations High Commissioner for Refugees may provide 
valuable  guidance  for  Member  States  when  determining  refugee  status  according  to 
Article 1 of the Geneva Convention. 

(cid:208) 2004/83/EC recital 15 

(22)  Minimum  standards  for  the  definition  and  content  of  refugee  status  should  be  laid 
down to  guide the competent national bodies  of Member States in the application of 
the Geneva Convention. 

(cid:208) 2004/83/EC recital 16 

(23) 

It is necessary to introduce common criteria for recognising applicants for asylum as 
refugees within the meaning of Article 1 of the Geneva Convention.  

(cid:208) 2004/83/EC recital 17 

(24) 

In particular, it is necessary to introduce common concepts of protection needs arising 
sur  place;  sources  of  harm  and  protection;  internal  protection;  and  persecution, 
including the reasons for persecution. 

(cid:208) 2004/83/EC recital 18  

(25)  Protection can be provided not only by the State but also by parties or organisations, 
including  international organisations, meeting the conditions  of this  Directive, which 
control a region or a larger area within the territory of the State (cid:214) and are willing and 

(cid:208) 2004/83/EC recital 19 
(cid:214) new 

EN 

15 

   EN 

 
 
 
 
 
 
 
 
able to enforce the rule of law. Such protection  should be effective and of a durable 
nature . 

(26) 

Internal  protection  should  be  effectively  available  to  the  applicant  in  a  part  of  the 
country  of  origin  where  he  or  she  can  safely  and  legally  travel,  gain  admittance  and 
settle. 

(cid:216) new 

(27) 

It is necessary, when assessing applications from minors for international protection, 
that Member States should have regard to child-specific forms of persecution.  

(cid:208) 2004/83/EC recital 20 

(cid:216) new 

(28)  One of the conditions for qualification for refugee status within the meaning of Article 
1(A)  of  the  Geneva  Convention  is  the  existence  of  a  causal  link  between  the  act  of 
persecution and reasons of race, religion, nationality, political opinion or membership 
of a particular social group. Where the persecution emanates from a non-State actor, it 
suffices if a causal link exists between the absence of State protection against the act 
of persecution and one of these reasons. 

(cid:208) 2004/83/EC recital 21 
(cid:214) new 

(29) 

It  is  equally  necessary  to  introduce  a  common  concept  of  the  persecution  ground 
"membership of a particular social group". (cid:214) For the purposes of defining a particular 
social  group,  issues  arising  from  an  applicant's  gender  should  be  given  due 
consideration.   

(cid:208) 2004/83/EC recital 22 

(30)  Acts  contrary to the purposes  and principles of the United Nations are set out in the 
Preamble and Articles 1 and 2 of the Charter of the United Nations and are, amongst 
others,  embodied  in  the  United  Nations  Resolutions  relating  to  measures  combating 
terrorism, which declare that "acts, methods and practices of terrorism are contrary to 
the  purposes  and  principles  of  the  United  Nations"  and  that  "knowingly  financing, 
planning and inciting terrorist acts are also contrary to the purposes and principles of 
the United Nations". 

EN 

16 

   EN 

 
 
 
 
 
 
(31)  As referred to in Article 14, "status" can also include refugee status. 

(cid:208) 2004/83/EC recital 23 

(32)  Minimum  standards  for  the  definition  and  content  of  subsidiary  protection  status 
should  also  be  laid  down.  Subsidiary  protection  should  be  complementary  and 
additional to the refugee protection enshrined in the Geneva Convention. 

(cid:208) 2004/83/EC recital 24 

(33) 

It is necessary to introduce criteria on the basis of which applicants for international 
protection  are  to  be  recognised  as  eligible  for  subsidiary  protection.  Those  criteria 
should  be  drawn  from  international  obligations  under  human  rights  instruments  and 
practices existing in Member States.  

(cid:208) 2004/83/EC recital 25 

(34)  Risks  to  which  a  population  of  a  country  or  a  section  of  the  population  is  generally 
exposed do normally not create in themselves an individual threat which would qualify 
as serious harm.  

(cid:208) 2004/83/EC recital 26 

(35)  Family  members,  merely  due  to  their  relation  to  the  refugee,  will  normally  be 
vulnerable to acts of persecution in such a manner that could be the basis for refugee 
status. 

(cid:208) 2004/83/EC recital 27 

(36)  The  notion  of  national  security  and  public  order  also  covers  cases  in  which  a  third 
country  national  belongs  to  an  association  which  supports  international  terrorism  or 
supports such an association. 

(cid:208) 2004/83/EC recital 28 

While  the  benefits  provided  to  family  members  of  beneficiaries  of  subsidiary 
protection status do not necessarily have  to  be  the  same  as  those  provided  to  the 

(cid:208) 2004/83/EC recital 29 

EN 

17 

   EN 

 
 
 
 
 
 
 
 
qualifying  beneficiary,  they  need  to  be  fair  in  comparison  to  those  enjoyed  by 
beneficiaries of subsidiary protection status. 

(cid:216) new 

(37) 

It  is  necessary  to  ensure  full  respect  for  the  principle  of  non-discrimination,  while 
responding  to  the  call  of  the  Hague  programme  for  the  establishment  of  a  uniform 
status. To that effect, and with the exception of derogations which are necessary and 
objectively justified, beneficiaries of subsidiary protection should be granted the same 
rights  and  benefits  as  refugees,  and  should  be  subject  to  the  same  conditions  of 
eligibility.  

(38)  Within  the  limits  set  out  by  international  obligations,  Member  States  may  lay  down 
that  the  granting  of  benefits  with  regard  to  access  to  employment,  social  welfare, 
health  care  and  access  to  integration  facilities  requires  the  prior  issue  of  a  residence 
permit. 

(cid:208) 2004/83/EC recital 30 

(cid:216) new 

(39) 

(40) 

In order to enhance the effective exercise of the rights and benefits laid down in the 
Directive  by  beneficiaries  of  international  protection,  it  is  necessary  to  take  into 
account  their  specific  needs  and  the  particular  integration  challenges  they  are 
confronted with. 

In that context, efforts should be made in particular to address the problems related to 
the  financial  constraints  which  prevent  beneficiaries  of  international  protection  from 
effective  access  to  employment-related  educational  opportunities  and  vocational 
training. 

(41)  This Directive does not apply to financial benefits from the Member States which are 

granted to promote education and training. 

(cid:208) 2004/83/EC recital 31 

The  practical  difficulties  encountered  by  beneficiaries  of  refugee  or  subsidiary 
protection status concerning the authentication of their foreign diplomas, certificates 
or other evidence of formal qualification should be taken into account  

(cid:208) 2004/83/EC recital 32 

EN 

18 

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(cid:216) new 

(42)  Special  measures  need  to  be  considered  with  a  view  to  effectively  addressing  the 
international  protection 
practical  difficulties  encountered  by  beneficiaries  of 
concerning the authentication of their foreign diplomas, certificates or other evidence 
of  formal  qualifications,  in  particular  due  to  the  lack  of  documentary  evidence  and 
their inability to meet the costs related to the recognition procedures. 

(43)  Especially  to  avoid  social  hardship,  it  is  appropriate,  for  beneficiaries  of  refugee  or 
subsidiary  (cid:214) international   protection  status,  to  provide  without  discrimination  in 
the context of social assistance the adequate social welfare and means of subsistence. 

(cid:208) 2004/83/EC recital 33 
(cid:214) new 

(cid:208) 2004/83/EC recital 34 

With  regard  to  social  assistance  and  health  care,  the  modalities  and  detail  of  the 
provision  of  core  benefits  to  beneficiaries  of  subsidiary  protection  status  should  be 
determined by national law. The possibility of limiting the benefits for beneficiaries 
of subsidiary protection status to core benefits is to be understood in the sense that 
this  notion  covers  at  least  minimum  income  support,  assistance  in  case  of  illness, 
pregnancy and parental assistance, insofar as they are granted to nationals according 
to the legislation of the Member State concerned. 

(44)  Access  to  health  care,  including  both  physical  and  mental  health  care,  should  be 

ensured to beneficiaries of refugee or subsidiary (cid:214) international  protection status. 

(cid:208) 2004/83/EC recital 35 
(cid:214) new 

(45)  The specific needs and particularities of the situation of beneficiaries of international 
protection  should  be  taken  into  account,  as  far  as  possible,  in  the  integration 
programmes provided to them. 

(cid:216) new 

(46)  The implementation of  this Directive should  be evaluated at regular intervals, taking 
into  consideration  in  particular  the  evolution  of  the  international  obligations  of 

(cid:208) 2004/83/EC recital 36 

EN 

19 

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Member States regarding non-refoulement, the evolution of the labour markets in the 
Member States as well as the development of common basic principles for integration. 

(cid:208) 2004/83/EC recital 37 

(47)  Since the objectives of the proposed Directive, namely to establish minimum standards 
for  the  granting  of  international  protection  to  third  country  nationals  and  stateless 
persons  by  Member  States  and  the  content  of  the  protection  granted,  cannot  be 
sufficiently achieved by the Member States and can therefore, by reason of the scale 
and  effects  of  the  Directive,  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 
those objectives. 

(cid:208) 2004/83/EC recital 38  

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 
28 January 2002,  its  wish  to  take  part  in  the  adoption  and  application  of  this 
Directive. 

(cid:208) 2004/83/EC recital 39  

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  13 February 2002,  its 
wish to take part in the adoption and application of this Directive. 

(48) 

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  taking  part  in  the  adoption  of  this  Directive  and  is  not 
bound by it or subject to its application. 

(cid:208) 2004/83/EC recital 40 

(49)  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. 

(cid:216) new 

EN 

20 

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(50)  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 I, Part B, 

HAVE ADOPTED THIS DIRECTIVE: 

(cid:208) 2004/83/EC (adapted) 
(cid:214) new 

CHAPTER I 

General provisions 

Article 1 

Subject matter and scope ⌦ Purpose ⌫ 

The purpose of this Directive is to lay down minimum standards for the qualification 
of  third  country  nationals  or  stateless  persons  as  (cid:214) beneficiaries  of  international 
protection  refugees or as persons who otherwise need international protection and 
the content of the protection granted. 

Article 2 

Definitions 

For the purposes of this Directive ⌦ the following definitions shall apply ⌫ : 

(a) 

"international  protection"  means  refugee  status  and  subsidiary  protection  status  as 
defined in (d)(e) and (f)(g); 

(b) 

"beneficiaries  of  international  protection"  means  persons  who  have  been  granted 
refugee status or  subsidiary protection status as defined in (e) and (g); 

(cid:216) new 

(b)(c) 

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

(cid:208) 2004/83/EC 

EN 

21 

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(c)(d) 

"refugee" means a third country national who, owing to a well-founded fear of being 
persecuted for reasons of race, religion, nationality, political opinion or membership 
of  a  particular  social  group,  is  outside  the  country  of  nationality  and  is  unable  or, 
owing to such fear, is unwilling to avail himself or herself of the protection of that 
country, or a stateless person, who, being outside of the country of former habitual 
residence for the same reasons as mentioned above, is unable or, owing to such fear, 
unwilling to return to it, and to whom Article 12 does not apply; 

(d)(e) 

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

(e)(f) 

"person  eligible  for  subsidiary  protection"  means  a  third  country  national  or  a 
stateless person who does not qualify as a refugee but in respect of whom substantial 
grounds have been shown for believing that the person concerned, if returned to his 
or her country of origin, or in the case of a stateless person, to his or her country of 
former habitual residence, would face a real risk of suffering serious harm as defined 
in  Article 15,  and  to  whom  Article 17(1)  and  (2)  do  not  apply,  and  is  unable,  or, 
owing  to  such  risk,  unwilling  to  avail  himself  or  herself  of  the  protection  of  that 
country;  

(f)(g) 

"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; 

(g)(h) 

"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 this Directive, that 
can be applied for separately; 

(i) 

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

(cid:216) new 

(cid:208) 2004/83/EC (adapted) 
(cid:214) new 

(h)(j) 

"family  members"  means,  in  so  far  as  the  family  already  existed  in  the  country  of 
origin,  the  following  members  of  the  family  of  the  beneficiary  of  refugee  or 
subsidiary (cid:214) international  protection status who are present in the same Member 
State in relation to the application for international protection:  

– 

the spouse of the beneficiary of refugee or subsidiary (cid:214) international  
protection status or his or her unmarried partner in a stable relationship, 
where the legislation or practice of the Member State concerned treats 
unmarried  couples  in  a  way  comparable  to  married  couples  under  its 
law relating to aliens; 

EN 

22 

   EN 

 
 
 
– 

– 

– 

– 

the minor children of the couple ⌦ couples ⌫ referred to in the first 
indent or of the beneficiary of refugee or subsidiary (cid:214) international  
protection  status,  on  condition  that  they  are  unmarried  and  dependent 
and  regardless  of  whether  they  were  born  in  or  out  of  wedlock  or 
adopted as defined under the national law; 

(cid:216) new 

the married minor children of the couples referred to in the first indent 
or  of  the  beneficiary  of  international  protection,  regardless  of  whether 
they  were  born  in  or  out  of  wedlock  or  adopted  as  defined  under  the 
national  law,  where  it  is  in  their  best  interests  to  reside  in  the  same 
country as the beneficiary; 

the  father,  mother  or  another  adult  relative  responsible  for  the 
beneficiary  of  international  protection  whether  by  law  or  by  custom, 
when the latter is a minor and unmarried, or when he/she is a minor and 
married but it is in his/her best interests to reside in the same country as 
his/her father, mother or other adult relative responsible;  

the  minor  unmarried  siblings  of  the  beneficiary  of  international 
protection,  when  the  latter  is  a  minor  and  unmarried,  or  when  the 
beneficiary of international protection or his/her siblings are minors and 
married but it is in the best interests of one or more of them that they 
reside in the same country; 

(k) 

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

(cid:208) 2004/83/EC (adapted) 
(cid:214) new 

(i)(l) 

"unaccompanied  minors"  means  third-country  nationals  or  stateless  persons  below 
the  age  of  eighteen  (cid:214) a  minor   who  arrive  ⌦ arrives ⌫  on  the  territory  of  the 
Member  States  unaccompanied  by  an  adult  responsible  for  ⌦ him/her ⌫  them 
whether by law or custom, and for as long as they are ⌦ he/she is ⌫ not effectively 
taken  into  the  care  of  such  a  person;  it  includes ⌦ a ⌫ minors who  are ⌦ is ⌫ 
left  unaccompanied  after  ⌦ he/she  has ⌫  they  have  entered  the  territory  of  the 
Member States; 

(j)(m) 

"residence permit"  means any permit  or  authorisation issued by the authorities of a 
Member State, in the form provided for under that State's legislation, allowing a third 
country national or stateless person to reside on its territory; 

(k)(n) 

"country  of  origin"  means  the  country  or  countries  of  nationality  or,  for  stateless 
persons, of former habitual residence. 

EN 

23 

   EN 

 
 
 
Article 3 

More favourable standards 

Member  States  may  introduce  or  retain  more  favourable  standards  for  determining 
who qualifies as a refugee or as a person eligible for subsidiary protection, and for 
determining  the  content  of  international  protection,  in  so  far  as  those  standards  are 
compatible with this Directive. 

CHAPTER II 

Assessment of applications for international protection 

Article 4 

Assessment of facts and circumstances 

Member States may consider it the duty of the applicant to submit as soon as possible 
all  elements  needed  to  substantiate  the  application  for  international  protection.  In 
cooperation  with  the  applicant  it  is  the  duty  of  the  Member  State  to  assess  the 
relevant elements of the application. 

The elements referred to in of paragraph 1 consist of the applicant's statements and 
all  documentation  at  the  applicants  disposal  regarding  the  applicant's  age, 
background, 
identity,  nationality(ies), 
country(ies) and place(s) of previous residence, previous asylum applications, travel 
routes,  identity  and  travel  documents  and  the  reasons  for  applying  for  international 
protection. 

including 

relatives, 

that  of 

relevant 

1. 

2. 

3. 

The assessment of an application for international protection is to be carried out on 
an individual basis and includes taking into account: 

(a) 

(b) 

(c) 

all relevant facts as they relate to the country of origin at the time of taking a 
decision  on  the  application;  including  laws  and  regulations  of  the  country  of 
origin and the manner in which they are applied; 

the relevant statements and documentation presented by the applicant including 
information on whether the applicant has been or may be subject to persecution 
or serious harm; 

the individual position and personal circumstances of the  applicant,  including 
factors  such  as  background,  gender  and  age,  so  as  to  assess  whether,  on  the 
basis of the applicant's personal circumstances, the acts to which the applicant 
has been or could be exposed would amount to persecution or serious harm; 

(d)  whether  the  applicant's  activities  since  leaving  the  country  of  origin  were 
engaged in for the sole or main purpose of creating the necessary conditions for 
applying  for  international  protection,  so  as  to  assess  whether  these  activities 

EN 

24 

   EN 

 
will  expose  the  applicant  to  persecution  or  serious  harm  if  returned  to  that 
country; 

(e)  whether  the  applicant  could  reasonably  be  expected  to  avail  himself  of  the 

protection of another country where he could assert citizenship. 

The fact that an applicant has already been subject to persecution or serious harm or 
to  direct  threats  of  such  persecution  or  such  harm,  is  a  serious  indication  of  the 
applicant's  well-founded  fear  of  persecution  or  real  risk  of  suffering  serious  harm, 
unless there are good reasons to consider that such persecution or serious harm will 
not be repeated. 

Where  Member  States  apply  the  principle  according  to  which  it  is  the  duty  of  the 
applicant  to  substantiate  the  application  for  international  protection  and  where 
aspects  of  the  applicant's  statements  are  not  supported  by  documentary  or  other 
evidence,  those  aspects  shall  not  need  confirmation,  when  the  following  conditions 
are met: 

(a) 

the applicant has made a genuine effort to substantiate his application; 

(b) 

(c) 

(d) 

all  relevant  elements,  at  the  applicant's  disposal,  have  been  submitted,  and  a 
satisfactory explanation regarding any lack of other relevant elements has been 
given; 

the applicant's statements are found to be coherent and plausible and do not run 
counter to available specific and general information relevant to the applicant's 
case; 

the  applicant  has  applied  for  international  protection  at  the  earliest  possible 
time, unless the applicant can demonstrate good reason for not having done so; 
and 

(e) 

the general credibility of the applicant has been established. 

Article 5 

International protection needs arising sur place 

A well-founded fear of being persecuted or a real risk of suffering serious harm may 
be  based  on  events  which  have  taken  place  since  the  applicant  left  the  country  of 
origin. 

A well-founded fear of being persecuted or a real risk of suffering serious harm may 
be based on activities which have been engaged in by the applicant since he left the 
country of origin, in particular where it is established that the activities relied upon 
constitute the expression and continuation of convictions or orientations held in the 
country of origin. 

Without prejudice to the Geneva Convention, Member States may determine that an 
applicant  who  files  a  subsequent  application  shall  normally  not  be  granted  refugee 

4. 

5. 

1. 

2. 

3. 

EN 

25 

   EN 

 
status,  if  the  risk  of  persecution  is  based  on  circumstances  which  the  applicant  has 
created by his own decision since leaving the country of origin. 

Article 6 

Actors of persecution or serious harm 

Actors of persecution or serious harm include: 

(a) 

the State;  

(b)  parties or organisations controlling the State or a substantial part of the territory 

of the State; 

(c) 

non-State actors, if it can be demonstrated that the actors mentioned in (a) and 
(b),  including  international  organisations,  are  unable  or  unwilling  to  provide 
protection against persecution or serious harm as defined in Article 7. 

Article 7 

Actors of protection 

1. 

Protection  (cid:214) against  persecution  or  serious  harm  must  be  effective  and  durable 
and  can (cid:214) only  be provided by: 

(a) 

the State; or  

2. 

3. 

(b)  parties  or  organisations,  including  international  organisations,  controlling  the 
State or a substantial part of the territory of the State (cid:214) and which are willing 
and able to enforce the rule of law . 

(cid:214) Effective  and  durable   Pprotection  is  generally  provided  when  the  actors 
mentioned  in  paragraph 1  take  reasonable  steps  to  prevent  the  persecution  or 
suffering  of  serious  harm  inter  alia  by  operating  an  effective  legal  system  for  the 
detection,  prosecution  and  punishment  of  acts  constituting  persecution  or  serious 
harm, and the applicant has access to such protection. 

When assessing whether an international organisation controls a State or a substantial 
part  of  its  territory  and  provides  protection  as  described  in  paragraph 2,  Member 
States  shall  take  into  account  any  guidance  which  may  be  provided  in  relevant 
Council acts. 

EN 

26 

   EN 

 
Article 8 

Internal protection 

1. 

2. 

As  part  of  the  assessment  of  the  application  for  international  protection,  Member 
States may determine that an applicant is not in need of international protection if in 
a part of the country of origin there is no well-founded fear of being persecuted or no 
real  risk  of  suffering  serious  harm  (cid:214) he  or  she  has  access  to  protection  against 
persecution  or  serious  harm  as  defined  in  Article 7 in  a  part  of  the  country  of 
origin  and the applicant can reasonably be expected to stay (cid:214) he or she can safely 
and legally travel, gain admittance and settle  in that part of the country.  

In examining whether (cid:214) an applicant has access to protection against persecution or 
serious harm in  a part of the country of origin is in accordance with paragraph 1, 
Member States shall at the time of taking the decision on the application have regard 
to the general circumstances prevailing in that part of the country and to the personal 
circumstances  of  the  applicant.  (cid:214)To  this  end,  Member  States  shall  ensure  that 
precise  and  up-to-date  information  is  obtained  from  various  sources,  such  as  the 
United  Nations  High  Commissioner  for  Refugees  (UNHCR)  and  the  European 
Asylum Support Office.   

3. 

Paragraph 1  may  apply  notwithstanding  technical  obstacles  to  return  to  the  country 
of origin 

CHAPTER III 

Qualification for being a refugee 

Article 9 

Acts of persecution 

1. 

⌦ In  order  to  be  regarded  as  an ⌫  Aacts  of  persecution  within  the  meaning  of 
aArticle 1 A of the Geneva Convention⌦, an act ⌫ must: 

(a) 

be sufficiently serious by their ⌦ its ⌫ nature or repetition as to constitute a 
severe  violation  of  basic  human  rights,  in  particular  the  rights  from  which 
derogation cannot be made under Article 15(2) of the European Convention for 
the Protection of Human Rights and Fundamental Freedoms; or 

(b)  be an accumulation of various measures, including violations of human rights 
which  is  sufficiently  severe  as  to  affect  an  individual  in  a  similar  manner  as 
mentioned in (a). 

2. 

Acts of persecution as qualified in paragraph 1, can inter alia take the form of:  

(a) 

acts of physical or mental violence, including acts of sexual violence; 

EN 

27 

   EN 

 
(b) 

legal, administrative, police, and/or judicial measures which are in themselves 
discriminatory or which are implemented in a discriminatory manner; 

(c) 

prosecution or punishment, which is disproportionate or discriminatory; 

(d)  denial  of  judicial  redress  resulting  in  a  disproportionate  or  discriminatory 

punishment; 

(e) 

prosecution or punishment for refusal to perform military service in a conflict, 
where  performing  military  service  would  include  crimes  or  acts  falling  under 
the exclusion clauses as set out in Article 12(2); 

(f) 

acts of a gender-specific or child-specific nature. 

3. 

In  accordance  with  Article 2 (c),  there  must  be  a  connection  between  the  reasons 
mentioned in Article 10 and the acts of persecution as qualified in paragraph 1(cid:214) or 
the absence of protection against such acts . 

Article 10 

Reasons for persecution 

1. 

Member  States  shall  take  the  following  elements  into  account  when  assessing  the 
reasons for persecution: 

(a) 

(b) 

(c) 

the concept of race shall in particular include considerations of colour, descent, 
or membership of a particular ethnic group; 

the concept of religion shall in particular include the holding of theistic, non-
theistic  and  atheistic  beliefs,  the  participation  in,  or  abstention  from,  formal 
worship in private or in public, either alone or in community with others, other 
religious  acts  or  expressions  of  view,  or  forms  of  personal  or  communal 
conduct based on or mandated by any religious belief; 

the  concept  of  nationality  shall  not  be  confined  to  citizenship  or  lack  thereof 
but  shall  in  particular  include  membership  of  a  group  determined  by  its 
cultural, ethnic, or linguistic identity, common geographical or political origins 
or its relationship with the population of another State; 

(d) 

a  group  shall  be  considered  to  form  a  particular  social  group  where  in 
particular:  

– 

– 

members of that group share an innate characteristic, or a common background 
that cannot be changed, or share a characteristic or belief that is so fundamental 
to identity or conscience that a person should not be forced to renounce it; and 

that group has a distinct identity in the relevant country, because it is perceived 
as being different by the surrounding society;. 

EN 

28 

   EN 

 
dDepending on the circumstances in the country of origin, a particular social group 
might  include  a  group  based  on  a  common  characteristic  of  sexual  orientation. 
Sexual orientation cannot be understood to include acts considered to be criminal in 
accordance  with  national  law  of  the  Member  States;.  Gender  related  aspects 
(cid:214) should be given due consideration for the purposes of determining membership of 
a particular social group or identifying a characteristic of such a group  might be 
considered, without by themselves alone creating a presumption for the applicability 
of this Article;. 

(e) 

the  concept  of  political  opinion  shall  in  particular  include  the  holding  of  an 
opinion,  thought  or  belief  on  a  matter  related  to  the  potential  actors  of 
persecution mentioned in Article 6 and to their policies or methods, whether or 
not that opinion, thought or belief has been acted upon by the applicant. 

2. 

When  assessing  if  an  applicant  has  a  well-founded  fear  of  being  persecuted  it  is 
immaterial  whether  the  applicant  actually  possesses  the  racial,  religious,  national, 
social or political characteristic which attracts the persecution, provided that such a 
characteristic is attributed to the applicant by the actor of persecution. 

Article 11 

Cessation 

1. 

A third country national or a stateless person shall cease to be a refugee, if he or she:  

(a) 

has voluntarily re-availed himself or herself of the protection of the country of 
nationality; or 

(b)  having lost his or her nationality, has voluntarily re-acquired it; or 

(c) 

has acquired a new nationality, and enjoys the protection of the country of his 
or her new nationality; or 

(d)  has voluntarily re-established himself or herself in the country which he or she 
left or outside which he or she remained owing to fear of persecution; or 

(e) 

(f) 

can no longer, because the circumstances in connection with which he or she 
has  been  recognised  as  a  refugee  have  ceased  to  exist,  continue  to  refuse  to 
avail himself or herself of the protection of the country of nationality; or 

being  a  stateless  person  with  no  nationality,  he  or  she  is  able,  because  the 
circumstances  in  connection  with  which  he  or  she  has  been  recognised  as  a 
refugee  have  ceased  to  exist,  to  return  to  the  country  of  former  habitual 
residence. 

2. 

In considering points (e) and (f) of paragraph 1, Member States shall have regard to 
whether  the  change  of  circumstances  is  of  such  a  significant  and  non-temporary 
nature  that  the  refugee's  fear  of  persecution  can  no  longer  be  regarded  as  well-
founded. 

EN 

29 

   EN 

 
3. 

Points (e) and (f) of paragraph 1 shall not apply to a refugee who is able to invoke 
compelling reasons arising out of previous persecution for refusing to avail himself 
of  the  protection  of  the  country  of  nationality  or,  being  a  stateless  person  ,  of  the 
country of former habitual residence. 

(cid:216) new 

(cid:208) 2004/83/EC (adapted) 

Article 12 

Exclusion 

1. 

A third country national or a stateless person is excluded from being a refugee, if: 

(a) 

he  or  she  falls  within  the  scope  of  Article 1 D  of  the  Geneva  Convention, 
relating  to  protection  or  assistance  from  organs  or  agencies  of  the  United 
Nations other than the United Nations High Commissioner for Refugees. When 
such protection or assistance has ceased for any reason, without the position of 
such  persons  being  definitely  settled  in  accordance  with  the  relevant 
resolutions  adopted  by  the  General  Assembly  of  the  United Nations,  these 
persons shall ipso facto be entitled to the benefits of this Directive; 

(b)  he or she is recognised by the competent authorities of the country in which he 
or  she  has  taken  residence  as  having  the  rights  and  obligations  which  are 
attached  to  the  possession  of  the  nationality  of  that  country;  or  rights  and 
obligations equivalent to those. 

2. 

A third country national or a stateless person is excluded from being a refugee where 
there are serious reasons for considering that: 

(a) 

he or she has committed a crime against peace, a war crime, or a crime against 
humanity,  as  defined  in  the  international  instruments  drawn  up  to  make 
provision in respect of such crimes; 

(b)  he  or  she  has  committed  a  serious  non-political  crime  outside  the  country  of 
refuge  prior  to  his  or  her  admission  as  a  refugee;  which  means  the  time  of 
issuing a residence permit based on the granting of refugee status; particularly 
cruel actions, even if committed with an allegedly political objective, may be 
classified as serious non-political crimes; 

(c) 

he or she has been guilty of acts contrary to the purposes and principles of the 
United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of 
the United Nations. 

3. 

Paragraph 2  applies  to  persons  who  instigate  or  otherwise  participate  in  the 
commission of the crimes or acts mentioned therein. 

EN 

30 

   EN 

 
 
 
CHAPTER IV 

Refugee Status 

Article 13 

Granting of refugee status 

Member  States  shall  grant  refugee  status  to  a  third  country  national  or  a  stateless 
person, who qualifies as a refugee in accordance with Chapters II and III. 

Article 14 

1. 

2. 

3. 

Revocation of, ending of or refusal to renew refugee status 

Concerning applications for international protection filed after the entry into force of 
this  Directive  ⌦ 2004/83/EC ⌫  ,  Member  States  shall  revoke,  end  or  refuse  to 
renew the refugee status of a third country national or a stateless person granted by a 
governmental, administrative, judicial or quasi-judicial body, if he or she has ceased 
to be a refugee in accordance with Article 11. 

Without  prejudice  to  the  duty  of  the  refugee  in  accordance  with  Article 4(1)  to 
disclose all relevant facts and provide all relevant documentation at his/her disposal, 
the  Member  State,  which  has  granted  refugee  status,  shall  on  an  individual  basis 
demonstrate that the person concerned has ceased to be or has never been a refugee 
in accordance with paragraph 1 of this Article. 

Member  States  shall  revoke,  end  or  refuse  to  renew  the  refugee  status  of  a  third 
country  national  or  a  stateless  person,  if,  after  he  or  she  has  been  granted  refugee 
status, it is established by the Member State concerned that: 

(a) 

he or she should have been or is excluded from being a refugee in accordance 
with Article 12; 

(b)  his  or  her  misrepresentation  or  omission  of  facts,  including  the  use  of  false 

documents, were decisive for the granting of refugee status. 

4. 

Member States may revoke, end or refuse to renew the status granted to a refugee by 
a governmental, administrative, judicial or quasi-judicial body, when:  

(a) 

there  are  reasonable  grounds  for  regarding  him  or  her  as  a  danger  to  the 
security of the Member State in which he or she is present; 

(b)  he or she, having been convicted by a final judgement of a particularly serious 

crime, constitutes a danger to the community of that Member State. 

5. 

In situations described in paragraph 4, Member States may decide not to grant status 
to a refugee, where such a decision has not yet been taken. 

EN 

31 

   EN 

 
6. 

Persons to whom paragraphs 4 or 5 apply are entitled to rights set out in or similar to 
those  set  out  in  Articles 3,  4,  16,  22,  31  and  32  and  33  of  the  Geneva  Convention 
insofar as they are present in the Member State. 

CHAPTER V 

Qualification for subsidiary protection 

Article 15 

Serious harm 

Serious harm consists of: 

(a) 

death penalty or execution; or 

(b) 

(c) 

torture or inhuman or degrading treatment or punishment of an applicant in the 
country of origin, or 

serious  and  individual  threat  to  a  civilian's  life  or  person  by  reason  of 
indiscriminate violence in situations of international or internal armed conflict. 

Article 16 

Cessation 

1. 

2. 

3. 

A third country national or a stateless person shall cease to be eligible for subsidiary 
protection when the circumstances which led to the granting of subsidiary protection 
status  have  ceased  to  exist  or  have  changed  to  such  a  degree  that  protection  is  no 
longer required. 

In applying paragraph 1, Member States shall have regard to whether the change of 
circumstances  is  of  such  a  significant  and  non-temporary  nature  that  the  person 
eligible for subsidiary protection no longer faces a real risk of serious harm. 

(cid:216) new 

Paragraph 1 shall not apply to a beneficiary of subsidiary protection who is able to 
invoke compelling reasons arising out of previous serious harm for refusing to avail 
himself  of  the  protection  of  the  country  of  nationality  or,  being  a  stateless  person 
with no nationality, of the country of former habitual residence. 

EN 

32 

   EN 

 
 
(cid:208) 2004/83/EC  
(cid:214) new 

Article 17 

Exclusion 

1. 

A  third  country  national  or  a  stateless  person  is  excluded  from  being  eligible  for 
subsidiary protection where there are serious reasons for considering that: 

(a) 

he or she has committed a crime against peace, a war crime, or a crime against 
humanity,  as  defined  in  the  international  instruments  drawn  up  to  make 
provision in respect of such crimes; 

(b)  he or she has committed a serious crime; 

(c) 

he or she has been guilty of acts contrary to the purposes and principles of the 
United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of 
the United Nations; 

(d)  he  or  she  constitutes  a  danger  to  the  community  or  to  the  security  of  the 

Member State in which he or she is present. 

2. 

3. 

Paragraph 1  applies  to  persons  who  instigate  or  otherwise  participate  in  the 
commission of the crimes or acts mentioned therein. 

Member States may exclude a third country national or a stateless person from being 
eligible  for  subsidiary  protection,  if  he  or  she  prior  to  his  or  her  admission  to  the 
Member State has committed one or more crimes, outside the scope of paragraph 1, 
which  would  be  punishable  by  imprisonment,  had  they  been  committed  in  the 
Member State concerned, and if he or she left his or her country of origin solely in 
order to avoid sanctions resulting from these crimes. 

CHAPTER VI 

Subsidiary Protection Status 

Article 18 

Granting of subsidiary protection status 

Member States shall grant subsidiary protection status to a third country national or a 
stateless  person  eligible  for  subsidiary  protection  in  accordance  with  Chapters II 
and V. 

EN 

33 

   EN 

 
 
Article 19 

Revocation of, ending of or refusal to renew subsidiary protection status 

Concerning applications for international protection filed after the entry into force of 
this  Directive,  Member  States  shall  revoke,  end  or  refuse  to  renew  the  subsidiary 
protection  status  of  a  third  country  national  or  a  stateless  person  granted  by  a 
governmental, administrative, judicial or quasi-judicial body, if he or she has ceased 
to be eligible for subsidiary protection in accordance with Article 16. 

Member States may revoke, end or refuse to renew the subsidiary protection status of 
a  third  country  national  or  a  stateless  person  granted  by  a  governmental, 
administrative, judicial or quasi-judicial body, if after having been granted subsidiary 
protection  status,  he  or  she  should  have  been  excluded  from  being  eligible  for 
subsidiary protection in accordance with Article 17(3). 

Member States shall revoke, end or refuse to renew the subsidiary protection status 
of a third country national or a stateless person, if: 

(a) 

he or she, after having been granted  subsidiary  protection status, should have 
been or is excluded from being eligible for subsidiary protection in accordance 
with Article 17(1) and (2); 

(b)  his  or  her  misrepresentation  or  omission  of  facts,  including  the  use  of  false 
documents, were decisive for the granting of subsidiary protection status. 

Without  prejudice  to  the  duty  of  the  third  country  national  or  stateless  person  in 
accordance  with  Article 4(1)  to  disclose  all  relevant  facts  and  provide  all  relevant 
documentation  at  his/her  disposal,  the  Member  State,  which  has  granted  the 
subsidiary protection status, shall on an individual basis demonstrate that the person 
concerned has ceased to be or is not eligible for subsidiary protection in accordance 
with paragraphs 1, 2 and 3 of this Article. 

CHAPTER VII 

Content of international protection 

Article 20 

General rules 

This  Chapter  shall  be  without  prejudice  to  the  rights  laid  down  in  the  Geneva 
Convention. 

This  Chapter  shall  apply  both  to  refugees  and  persons  eligible  for  subsidiary 
protection unless otherwise indicated. 

1. 

2. 

3. 

4. 

1. 

2. 

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3. 

4. 

5. 

When implementing this Chapter, Member States shall take into account the specific 
situation  of  vulnerable  persons  such  as  minors,  unaccompanied  minors,  disabled 
people,  elderly  people,  pregnant  women,  single  parents  with  minor  children  (cid:214) , 
victims of trafficking, persons with mental health problems  and persons who have 
been  subjected  to  torture,  rape  or  other  serious  forms  of  psychological,  physical  or 
sexual violence. 

Paragraph 3  shall  apply  only  to  persons  found  to  have  special  needs  after  an 
individual evaluation of their situation. 

The  best  interest  of  the  child  shall  be  a  primary  consideration  for  Member  States 
when implementing the provisions of this Chapter that involve minors. 

6. Within the limits set out by the Geneva Convention, Member States may reduce 
the  benefits  of  this  Chapter,  granted  to  a  refugee  whose  refugee  status  has  been 
obtained on the basis of activities engaged in for the sole or main purpose of creating 
the necessary conditions for being recognised as a refugee. 

7. Within the limits set out by international obligations of Member States, Member States may 
reduce  the  benefits  of  this  Chapter,  granted  to  a  person  eligible  for  subsidiary  protection, 
whose subsidiary protection status has been obtained on the basis of activities engaged in for 
the sole or main purpose of creating the necessary conditions for being recognised as a person 
eligible for subsidiary protection. 

Article 21 

Protection from refoulement 

1. 

2. 

Member  States  shall  respect  the  principle  of  non-refoulement  in  accordance  with 
their international obligations. 

Where  not  prohibited  by  the  international  obligations  mentioned  in  paragraph 1, 
Member States may refoule a refugee, whether formally recognised or not, when:  

(a) 

there  are  reasonable  grounds  for  considering  him  or  her  as  a  danger  to  the 
security of the Member State in which he or she is present; or 

(b)  he or she, having been convicted by a final judgement of a particularly serious 

crime, constitutes a danger to the community of that Member State. 

3. 

Member States may revoke, end or refuse to renew or to grant the residence permit 
of (or to) a refugee to whom paragraph 2 applies. 

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Article 22 

Information 

Member States shall provide (cid:214) beneficiaries  persons recognised as being in need 
of international protection, as soon as possible after the respective protection status 
has  been  granted,  with  access  to  information,  in  a  language  (cid:214) that  they  are 
reasonably supposed to understand  likely to be understood by them, on the rights 
and obligations relating to that status. 

Article 23 

Maintaining family unity 

1. 

2. 

3. 

4. 

5. 

Member States shall ensure that family unity can be maintained. 

Member  States  shall  ensure  that  family  members  of  the  beneficiary  of  refugee  or 
subsidiary  (cid:214) international   protection  status,  who  do  not  individually  qualify  for 
such  status  (cid:214) this  protection   ,  are  entitled  to  claim  the  benefits  referred  to  in 
Articles  24  to  34,  in  accordance  with  national  procedures  and  as  far  as  it  is 
compatible with the personal legal status of the family member. 

Insofar  as  the  family  members  of  beneficiaries  of  subsidiary  protection  status  are 
concerned, Member States may define the conditions applicable to such benefits. 

In  these  cases,  Member  States  shall  ensure  that  any  benefits  provided  guarantee  an 
adequate standard of living. 

Paragraphs  1  and  2  are  not  applicable  where  the  family  member  is  or  would  be 
excluded from refugee or subsidiary (cid:214) international  protection status pursuant to 
Chapters III and V. 

Notwithstanding paragraphs 1 and 2, Member States may refuse, reduce or withdraw 
the benefits referred therein for reasons of national security or public order.  

Member States may decide that this Article also applies to other close relatives who 
lived together as part of the family at the time of leaving the country of origin, and 
who  were  wholly  or  mainly  dependent  on  the  beneficiary  of  refugee  or  subsidiary 
protection status (cid:214) international protection at that time. 

Article 24 

Residence permits 

1. 

As soon as possible after their status has been granted, Member States shall issue to 
beneficiaries of refugee status (cid:214) international protection  a residence permit which 
must  be  valid  for  at  least  three  years  and  renewable  unless  compelling  reasons  of 

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national  security  or  public  order  otherwise  require,  and  without  prejudice  to 
Article 21(3). 

Without  prejudice  to  Article 23(1),  the  residence  permit  to  be  issued  to  the  family 
members of the beneficiaries of refugee status (cid:214) international protection  may be 
valid for less than three years and renewable. 

2. As soon as possible after the status has been granted, Member States shall issue to 
beneficiaries of subsidiary protection status a residence permit which must be valid 
for at least one year and renewable, unless compelling reasons of national security or 
public order otherwise require. 

Article 25 

Travel document 

1. 

2. 

1. 

2. 

3. 

Member States shall issue to beneficiaries of refugee status travel documents in the 
form  set  out  in  the  Schedule  to  the  Geneva  Convention,  for  the  purpose  of  travel 
outside their territory unless compelling reasons of national security or public order 
otherwise require. 

Member  States  shall  issue  to  beneficiaries  of  subsidiary  protection  status  who  are 
unable  to  obtain  a  national  passport,  documents  which  enable  them  to  travel 
(cid:214) outside  their  territory ,  at  least  when  serious  humanitarian  reasons  arise  that 
require their presence in another State, unless compelling reasons of national security 
or public order otherwise require. 

Article 26 

Access to employment 

Member  States  shall  authorise  beneficiaries  of  refugee  status  (cid:214) international 
protection   to  engage  in  employed  or  self-employed  activities  subject  to  rules 
generally applicable to the profession and to the public service, immediately after the 
refugee status (cid:214) protection  has been granted. 

Member  States  shall  ensure  that  activities  such  as  employment-related  education 
opportunities  for  adults,  vocational  training  (cid:214),  including  training  courses  for 
upgrading  of  skills,   and  practical  workplace  experience  (cid:214) and  counselling 
services  afforded  by  employment  offices   are  offered  to  beneficiaries  of 
(cid:214) international protection  refugee status, under equivalent conditions as nationals. 

Member  States  shall  endeavour  to  facilitate  the  access  of  beneficiaries  of 
international  protection  to  the  employment-related  education  opportunities  and 
vocational training referred to in paragraph 2 through measures such as the provision, 

(cid:216) new 

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where necessary, of maintenance grants and loans or of the possibility to work and 
study part-time. 

(cid:208) 2004/83/EC 
(cid:214) new 

3.  Member  States  shall  authorise  beneficiaries  of  subsidiary  protection  status  to 
engage in employed or self-employed activities subject to rules generally applicable 
to the profession and to the public service immediately after the subsidiary protection 
status has been granted. The situation of the labour market in the Member States may 
be taken into account, including for possible prioritisation of access to employment 
for  a  limited  period  of  time  to  be  determined  in  accordance  with  national  law. 
Member  States  shall  ensure  that  the  beneficiary  of  subsidiary  protection  status  has 
access to a post for which the beneficiary has received an offer in accordance with 
national rules on prioritisation in the labour market. 

4.  Member  States  shall  ensure  that  beneficiaries  of  subsidiary  protection  status 
have  access  to  activities  such  as  employment-related  education  opportunities  for 
adults, vocational training and practical workplace experience, under conditions to be 
decided by the Member States. 

54. 

The law in force in the Member States applicable to remuneration, access to social 
security  systems  relating  to  employed  or  self-employed  activities  and  other 
conditions of employment shall apply. 

Article 27 

Access to education 

1. 

2. 

Member States shall grant full access to the education system to all minors granted 
refugee or subsidiary (cid:214) international  protection status, under the same conditions 
as nationals. 

Member  States  shall  allow  adults  granted  (cid:214) international   refugee  or  subsidiary 
protection  status  access  to  the  general  education  system,  further  training  or 
retraining, under the same conditions as third country nationals legally resident.  

3.  Member States shall ensure equal treatment between beneficiaries of refugee or 
subsidiary  protection  status  and  nationals  in  the  context  of  the  existing  recognition 
procedures  for  foreign  diplomas,  certificates  and  other  evidence  of  formal 
qualifications. 

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(cid:216) new 

Article 28 

Access to procedures for recognition of qualifications 

Member  States  shall  ensure  equal  treatment  between  beneficiaries  of  international 
protection  and  nationals  in  the  context  of  the  existing  recognition  procedures  for 
foreign diplomas, certificates and other evidence of formal qualifications. 

Member  States  shall  endeavour  to  ensure  that  beneficiaries  of  international 
protection  who  cannot  provide  documentary  evidence  of  their  qualifications  have 
access  to  appropriate  schemes  for  the  assessment,  validation  and  accreditation  of 
their  prior  learning.  Any  such  measures  shall  respect  Articles  2(2)  and  3(3)  of 
Directive 2005/36/EC of the European Parliament and of the Council of 7 September 
2005 on the recognition of professional qualifications20. 

Member  States  shall  endeavour  to  ensure  that  beneficiaries  of  international 
protection  are  not  prevented  from  seeking  either  recognition  of  their  foreign 
diplomas,  certificates  or  other  evidence  of  formal  qualifications  or  accreditation  of 
their prior learning because of the costs involved. 

(cid:208) 2004/83/EC (adapted) 
(cid:214) new 

Article 2829 

Social Welfare 

Member  States  shall  ensure 
refugee  or  subsidiary 
(cid:214) international   protection  status  receive,  in  the  Member  State  that  has  granted 
such  statuses  (cid:214) protection   ,  the  necessary  social  assistance,  as  provided  to 
nationals of that Member State. 

that  beneficiaries  of 

2. 
By exception to the general rule laid down in paragraph 1, Member States may 
limit social assistance granted to beneficiaries of subsidiary protection status to core 
benefits which will then be provided at the same levels and under the same eligibility 
conditions as nationals. 

1. 

2. 

3. 

1. 

2. 

20 

OJ L 255, 30.9.2005, p. 22  

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Article 2930 

Health care 

1. 

refugee  or  subsidiary 
Member  States  shall  ensure 
(cid:214) international   protection  status  have  access  to  health  care  under  the  same 
eligibility conditions as nationals of the Member State that has granted such statuses 
(cid:214) protection . 

that  beneficiaries  of 

2.  By  exception  to  the  general  rule  laid  down  in  paragraph 1,  Member  States  may 
limit  health  care  granted  to  beneficiaries  of  subsidiary  protection  to  core  benefits 
which  will  then  be  provided  at  the  same  levels  and  under  the  same  eligibility 
conditions as nationals.  

Member States shall provide, under the same eligibility conditions as nationals of the 
Member State that has granted the status, adequate health care (cid:214) , including  mental 
health  care  when  needed,  
refugee  or  subsidiary 
(cid:214) international   protection  status  who  have  special  needs,  such  as  pregnant 
women, disabled people, persons who have undergone torture, rape or other serious 
forms of psychological, physical or sexual violence or minors who have been victims 
of  any  form  of  abuse,  neglect,  exploitation,  torture,  cruel,  inhuman  and  degrading 
treatment or who have suffered from armed conflict. 

to  beneficiaries  of 

Article 3031 

Unaccompanied minors 

As  soon  as  possible  after  the  granting  of  refugee  or  subsidiary  (cid:214) international  
protection  status  Member  States  shall  take  the  necessary  measures,  to  ensure  the 
representation of unaccompanied minors by legal guardianship or, where necessary, 
by an organisation responsible for the care and well-being of minors, or by any other 
appropriate representation including that based on legislation or Court order. 

Member States shall ensure that the minor's needs are duly met in the implementation 
of  this  Directive  by  the  appointed  guardian  or  representative.  The  appropriate 
authorities shall make regular assessments. 

32. 

1. 

2. 

3. 

Member States shall ensure that unaccompanied minors are placed either: 

(a)  with adult relatives; or 

(b)  with a foster family; or 

(c) 

in centres specialised in accommodation for minors; or 

(d) 

in other accommodation suitable for minors. 

In this context, the views of the child shall be taken into account in accordance with 
his or her age and degree of maturity. 

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4. 

5. 

As  far  as  possible,  siblings  shall  be  kept  together,  taking  into  account  the  best 
interests  of  the  minor  concerned  and,  in  particular,  his  or  her  age  and  degree  of 
maturity.  Changes  of  residence  of  unaccompanied  minors  shall  be  limited  to  a 
minimum. 

Member  States  (cid:214) shall  establish  procedures  for  tracing  the  members  of  the 
unaccompanied minor's family as soon as possible after the granting of international 
protection   ,⌦ whilst ⌫  protecting  the  unaccompanied  minor's  best  interests., 
shall  endeavour  to  trace  the  members  of  the  minor's  family  as  soon  as  possible.  In 
cases where there may be a threat to the life or integrity of the minor or his or her 
close relatives, particularly if they have remained in the country of origin, care must 
be  taken  to  ensure  that  the  collection,  processing  and  circulation  of  information 
concerning those persons is undertaken on a confidential basis. 

6. 

Those working with unaccompanied minors shall have had (cid:214) and continue to  or 
receive appropriate training concerning their needs. 

Article 3132 

Access to accommodation 

The  Member  States  shall  ensure  that  beneficiaries  of  refugee  or  subsidiary 
(cid:214) international  protection status have access to accommodation under equivalent 
conditions  as  other  third  country  nationals  legally  resident  in  their  territories. 
(cid:214) Member  States  shall  endeavour  to  implement  policies  aimed  at  preventing 
discrimination  of  beneficiaries  of  international  protection  and  at  ensuring  equal 
opportunities regarding access to accommodation.  

Article 3233 

Freedom of movement within the Member State 

Member  States  shall  allow  freedom  of  movement  within  their  territory  to 
beneficiaries of refugee or subsidiary (cid:214) international  protection status, under the 
same  conditions  and  restrictions  as  those  provided  for  other  third  country  nationals 
legally resident in their territories. 

Article 3334 

Access to integration facilities 

1. 

In  order  to  facilitate  the  integration  of  refugees  (cid:214) beneficiaries  of  international 
protection  into society, Member States shall (cid:214) ensure access to  make provision 
for  integration  programmes  which  they  consider  to  be  appropriate  (cid:214) so  as  to  take 
into  account  the  specific  needs  of  beneficiaries  of  international  protection   or 
create pre-conditions which guarantee access to such programmes. 

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1 

Where  it  is  considered  appropriate  by  Member  States,  beneficiaries  of  subsidiary 
protection status shall be granted access to integration programmes. 

2. 

Those integration programmes could include introduction programmes and language 
training  tailored  as  far  as  possible  to  the  needs  of  beneficiaries  of  international 
protection.  

(cid:216) new 

(cid:208) 2004/83/EC (adapted) 
(cid:214) new 

Article 3435 

Repatriation 

Member  States  may  provide  assistance  to  beneficiaries  of  refugee  or  subsidiary 
(cid:214) international  protection status who wish to repatriate. 

CHAPTER VIII 

Administrative cooperation 

Article 3536 

Cooperation 

Member  States  shall  each  appoint  a  national  contact  point,  ⌦ and  communicate 
its ⌫  whose  address  they  shall  communicate  to  the  Commission,.  which  ⌦ The 
Commission ⌫  shall  communicate  it ⌦ that  information ⌫  to  the  other  Member 
States.  

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. 

Article 3637 

Staff 

Member  States  shall  ensure  that  authorities  and  other  organisations  implementing 
this  Directive  have  received  the  necessary  training  and  shall  be  bound  by  the 

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confidentiality principle, as defined in the national law, in relation to any information 
they obtain in the course of their work. 

CHAPTER IX 

Final provisions 

Article 3738 

Reports 

1. 

By  10  April  2008  (cid:214) […]   ,  the  Commission  shall  report  to  the  European 
Parliament and the Council on the application of this Directive and shall propose any 
amendments  that  are  necessary.  These  proposals  for  amendments  shall  be  made  by 
way  of  priority  in  relation  to  Articles 15,  26  and  33.  Member States  shall  send  the 
Commission all the information that is appropriate for drawing up that report by 10 
October 2007 (cid:214) […] .  

2. 

After presenting the report, the Commission shall report to the European Parliament 
and the Council on the application of this Directive at least every five years. 

Article 3839  

Transposition 

The  Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  before  10  October  2006 
⌦ Articles  […]  [The  Articles  which  have  been  changed  as  to  the  substance  by 
comparison with the earlier Directive] by […] at the latest ⌫. They shall forthwith 
inform  ⌦ communicate  to ⌫  the  Commission  thereof  ⌦ the  text  of  those 
provisions and a correlation table between those provisions and this Directive ⌫.  

When  the  Member  States  adopt  those  measures  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. ⌫ 

the 
to 
Member  States  shall  communicate 
⌦ 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. ⌫ 

the  Commission 

text  of 

the 

1. 

2. 

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(cid:208)  

Article 40 

Repeal 

Directive  2004/83/EC  is  repealed  with  effect  from  [day  after  the  date  set  out  in  the  first 
subparagraph  of  paragraph  1  of  Article  …  of  this  Directive],  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 I, 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 II. 

(cid:208) 2004/83/EC (adapted) 

Article 3941 

Entry into force 

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

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

(cid:208)  

(cid:208) 2004/83/EC (adapted) 

Article 4042 

Addressees 

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

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Done at […] 

For the European Parliament 
The President 
[…] 

For the Council 
The President 
[…] 

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(cid:208) 

ANNEX I 

Part A 

Repealed Directive 
(referred to in Article 40) 

Council Directive 2004/83/EC 

(OJ L 304, 30.9.2004, p. 12) 

Part B 

Time-limit for transposition into national law 
(referred to in Article 39) 

Directive 

Time-limit for transposition 

2004/83/EC 

10 October 2006 

_____________

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ANNEX II 

CORRELATION TABLE 

Directive 2004/83/EC 

This Directive 

Article 1 

Article 1 

Article 2, introductory words 

Article 2, introductory words 

Article 2(a)  

- 

Article 2(b) – (g) 

- 

Article 2 (h)  

- 

- 

Article 2(i)  

Article 2 (j) 

Article 2(k) 

Article 3 

Article 4 

Article 5 

Article 6 

Article 7 

Article 2(a)  

Article 2(b)  

Article 2(c) – (h) 

Article 2 (i) 

Article 2 (j) first and second indent 

Article 2 (j) third, fourth and fifth indent 

Article 2(k) 

Article 2(l)  

Article 2 (m) 

Article 2(n) 

Article 3 

Article 4 

Article 5 

Article 6 

Article 7 

Article 8 (1) (2) 

Article 8 (1) (2)  

Article 8 (3) 

Article 9 

Article 10  

Article 11(1) (2) 

- 

- 

Article 9 

Article 10  

Article 11 (1) (2) 

Article 11 (3) 

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Article 12  

Article 13 

Article 14 

Article 15 

Article 16 (1) (2) 

- 

Article 17 

Article 18  

Article 19 

Article 20 (1) – (5)  

Article 20 (6) (7)  

Article 21 

Article 22  

Article 23 (1)  

Article 12  

Article 13 

Article 14 

Article 15 

Article 16 (1) (2) 

Article 16 (3) 

Article 17  

Article 18  

Article 19 

Article 20 (1) – (5) 

- 

Article 21 

Article 22  

Article 23 (1)  

Article 23 (2) first subparagraph 

Article 23 (2) first subparagraph 

Article 23 (2) second subparagraph 

Article 23 (2) third subparagraph 

- 

- 

Article 23 (3) - (5)  

Article 24 (1)  

Article 24 (2) 

Article 25 

Article 23 (3) - (5)  

Article 24 (1)  

- 

Article 25 

Article 26(1) - (3) 

Article 26(1) - (3) 

Article 26 (4)  

Article 26 (5)  

Article 27 (1) (2)  

Article 27 (3) 

- 

- 

Article 26 (4)  

Article 27 (1) (2)  

Article 28 (1) 

Article 28 (2) (3) 

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Article 28 (1) 

Article 28 (2) 

Article 29 (1)  

Article 29(2) 

Article 29 (3) 

Article 30 

Article 31 

Article 32  

Article 33  

Article 34 

Article 35  

Article 36  

Article 37 

Article 38 

- 

Article 39 

Article 40 

– 

– 

Article 29(1) 

- 

Article 30(1) 

- 

Article 30(2) 

Article 31 

Article 32 

Article 33 

Article 34 

Article 35 

Article 36 

Article 37  

Article 38 

Article 39 

Article 40 

Article 41 

Article 42 

Annex I 

Annex II 

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